400: Lagoon 400 mast cracks

[swpalmer1]

Hi, looking for recommendations for a good rigger located somewhere on the east coast between Ct. and Georgia that knows Lagoon riggings well. We have discovered a couple of very small vertical hairline cracks under the ball fittings holding the diamond stays. Wondering if maybe we could be lucky enough to find a ZSpar salvaged mast that will fit or a sleeve or plates to repair it.
Thanks,
Steve

[Sohum]

Hello Forum

I’m in the same situation SVpalmer1
2010 L400. The riggers showed the findings to zspar, and they condemned it( of course they would.. right)
I was only offered a replacement solution, no repair.
They projects underway now, in the back of my mind I’m wondering “should have explored other options”

[billknny]

Originally Posted by Sohum

Hello Forum

I’m in the same situation SVpalmer1
2010 L400. The riggers showed the findings to zspar, and they condemned it( of course they would.. right)

If it was my boat, I'd condem it, for sure.

Originally Posted by Sohum

I was only offered a replacement solution, no repair.
They projects underway now, in the back of my mind I’m wondering “should have explored other options”

Is Z-spar getting you a new mast of exactly the same design and construction? Are they accepting any responsibility for the failure?

[swpalmer1]

Mast was reinforced with doubler plates and all new standing rigging.
No one excepted responsibility. Insurance company blew me off. ZSpars engineering and rigging surveyor says it was caused by overloading from a storm.
Anyone know a good pit bull lawyer?

[swpalmer1]

Hi did ZSpars / USSpars help you out at all? Do you know how long the mast is warranted for. Being this was discovered when the mast was less than 10yoa.

[Montanan]

Z Spar's Terms and Conditions from their website as of today. Don't know what the terms would have been back inn 2010, sailing ages ago.

Seemingly most relevant is Section 7.3 highlighted below.

Good luck with the repair / replacement of a most critical piece of equipment. Good you spotted it before it broke.

I believe the standard warranty under EU law for all goods is two years, so Z Spars stated 12 months limitation is likely not valid, albeit Brexit is happening.

1 LIABILITY

1.1 We shall not be liable for any loss or damage caused by events or circumstances beyond our reasonable control (such as severe weather conditions, the actions of third parties not employed by us or any defect in a customer’s or third party’s property); this extends to loss or damage to vessels, gear, equipment or other property left with us for work or storage, and harm to persons entering our premises or using any of our facilities or equipment.

1.2 We shall take reasonable and proportionate steps having regard to the nature and scale of our business to maintain security at our premises, and to maintain our facilities and equipment in reasonably good working order; but in the absence of any negligence or other breach of duty by us vessels and other property are left with us at the customer’s own risk and customers should ensure that their own personal and property insurance adequately covers such risks.

1.3 We shall not be under any duty to salvage or preserve a customer’s vessel or other property from the consequences of any defect in the vessel or property concerned unless we have been expressly engaged to do so by the customer on commercial terms. Similarly we shall not be under any duty to salvage or preserve a customer’s vessel or other property from the consequences of an accident which has not been caused by our negligence or some other breach of duty on our part. However we reserve the right to do so in any appropriate circumstances, particularly where a risk is posed to the safety of people, property or the environment. Where we do so we shall be entitled to charge the customer concerned on a normal commercial basis.

1.4 Customers may themselves be liable for any loss or damage caused by them, their crew or their vessels and while their vessel or other property is on our premises or is being worked on by us they shall be obliged to maintain adequate insurance, including third party liability cover for not less than £2,000,000, and, where appropriate, Employer’s Liability cover in respect of any employee. Customers shall be obliged to produce evidence of such insurance to us within 7 days of a request to do so.

1.5 Nothing in these Terms of Business shall limit or exclude our liability for death or personal injury caused by our negligence or the negligence of our employees, agents or sub-contractors; for fraud or fraudulent misrepresentation; or otherwise to the extent that it would be illegal for us to exclude or attempt to exclude liability.

2 PRICES AND ESTIMATES

2.1 In the absence of express agreement to the contrary our price for work shall be based on labour and materials expended and services provided.

2.2 We will exercise reasonable skill and judgment when we give an estimate or indication of price. However such estimates are always subject to the accuracy of information provided by the customer and are usually based only on a superficial examination and will not include the cost of any emergent work which may be necessary to the vessel, gear or equipment nor the cost of any extensions to the work comprised in the estimate.

2.3 We will inform the customer promptly of any proposed increase in estimated prices and the reasons for it and will only proceed with the work or supply with the approval of the customer. The customer shall remain responsible for the cost of labour and materials already supplied or remaining to be supplied which are not affected by the proposed increase in price.

3 DELAYS

3.1 Any time given for completion of our work is given in good faith but is not guaranteed. We shall not be responsible for any delay in completion of the work or for the consequences of any such delay unless it arises from our wilful acts or omissions or from our negligence.

4 VESSEL MOVEMENTS

4.1 We reserve the right to move any vessel, gear, equipment or other property at any time for reasons of safety, security or good management of our business and premises.

5 PAYMENT

5.1 Unless otherwise agreed between us payment for all work, goods and services shall be due immediately on invoice date. Payment shall be deemed to have been made when we receive cash or cleared funds at our bank.

5.2 We have the right to charge interest on any sum outstanding for more than 30 days (except in the case of a reasonable and proportionate retention by the customer of any amount genuinely in dispute between us and the customer) on the outstanding balance at 4% above Bank of England base rate which may be calculated daily up to the date of actual payment. In the case of business customers this rate will be substituted with the current rate applicable under late payment legislation.

5.3 We reserve a general right (“a general lien”) to detain and hold onto a customer’s vessel or other property pending payment by the customer of all sums due to us. We shall be entitled to charge the customer for storage and the provision of any ongoing services at our normal daily rates until payment (or provision of security) by the customer and removal of the vessel or property from our premises. The customer shall be entitled to remove the vessel or other property upon providing proper security, for example a letter of guarantee from a Bank reasonably acceptable to us or lodgement of a cash deposit with a professional third party agent reasonably acceptable to us, sufficient to cover the debt with interest and, where the debt is contested, a reasonable provision for our prospective legal costs. This right does not affect the customer’s entitlement to withhold a proportionate part of the price in respect of alleged defects but where that amount is in dispute between us the customer shall be required to provide security for the full amount pending resolution of the dispute.

5.4 Our customers’ attention is drawn also to the note at Clause 10.2 of these Terms of Business regarding other rights which exist at law.

6 RETENTION OF TITLE / RISK

6.1 Title to all goods, equipment and materials supplied by us to a customer shall remain with us until full payment has been received by us.

6.2 Risk in all goods, equipment and materials supplied by us to a customer shall pass to the customer at the time of supply to the customer.

7 GUARANTEE

7.1 Advice on whether a customer is “a consumer” or otherwise protected by some or all of the consumer protection legislation in force in the United Kingdom may be obtained from any local Trading Standards Office, the Citizens Advice Bureau, the Office of Fair Trading or any firm of solicitors (who may charge). Online guidance may be obtained at www.adviceguide.org.uk.

7.2 A customer who is a consumer has certain minimum statutory rights regarding the return of defective goods and claims for losses. These rights are not affected by these terms.



7.3 In addition to the statutory rights provided by English law we guarantee our work for a period of 12 months from completion against all defects which are due to poor workmanship or defective materials supplied by us. This guarantee applies only to the customer to whom the work or materials were supplied. We shall be liable under this guarantee only for defects which appear during this 12 month period and which are promptly notified to us in writing at our trading address or registered office set out on our letterhead. The geographical area within which this guarantee will be honoured is restricted to the United Kingdom.

7.4 On notification by the customer of such defects, we will investigate the cause and if they are our responsibility under the terms of this guarantee we will promptly remedy them or, at our option, employ other contractors to do so. Any remedial work which is put in hand by the customer directly without first notifying us and allowing us a reasonable opportunity to inspect and agree such work and its cost will invalidate this guarantee in respect of those defects.

7.5 Where we supply goods or services to a partnership or company or to a customer who is acting in the course of a business or a commercial operation (a “Business Customer”) then:
7.5.1 no article supplied by us to a Business Customer shall carry any express or implied term as to

its quality or its fitness for any particular purpose unless prior to the supply the Business Customer has sufficiently explained the purpose for which it is required and made it clear that he is relying on our skill and judgement;

7.5.2 no proprietary article specified by name, size or type by a Business Customer shall carry any such express or implied term but we will assign to the Business Customer any rights we may have against the manufacturer or importer of that article; and

7.5.3 we accept no liability to indemnify a Business Customer against any loss of profit or turnover which he or his customer or any other person may sustain in consequence of the failure of any faulty or unfit article supplied by us.

8 QUALITY STANDARDS

8.1 We will complete our work to the agreed specification and, in the absence of any other contractual term as to quality, to a satisfactory quality.

9 ACCESS TO PREMISES/WORK ON THE VESSEL

9.1 No work or services shall be carried out on a vessel, gear, equipment or other property on our premises without our prior written consent (which consent shall not to be unreasonably withheld or delayed) except for minor running repairs or minor maintenance of a routine nature by the customer or his regular crew. It shall be an absolute condition that all work is carried out in full compliance with our health and safety, environmental and access policies and that it does not cause any nuisance or annoyance to us, any other customer or person residing in the vicinity, and does not interfere with our schedule of work or the good management of our business and our said consent to work or services being carried out may be revoked with immediate effect in the event of any breach of such conditions. We shall not be responsible to customers or third parties for the consequences of any person’s failure to respect any part of this clause 9.1 but we shall be entitled to demand the immediate cessation of any work which in our view breaches the requirements of this clause 9.1.

9.2 While we or our subcontractors are working on a customer’s vessel or equipment the customer shall not have access to it except by prior arrangement. We will agree reasonable access when it is safe to do so and when it will not interrupt or interfere with our work schedule.

10 RIGHT OF SALE

10.1 We accept vessels, gear, equipment and other property for repair, refit, maintenance or storage subject to the provisions of the Torts (Interference with Goods) Act 1977. This Act confers a Right of Sale on us in circumstances where the customer fails to collect or accept re-delivery of the goods (which includes a vessel and any other property). A sale will not take place until we have given notice to the customer in accordance with the Act. For the purpose of the Act it is recorded that:

10.1.1 goodsforrepairorothertreatmentareacceptedbyusonthe basisthatthecustomeristhe

owner of the goods or the owner’s authorised agent and that he will take delivery or arrange

collection when the repair or treatment has been carried out;

10.1.2 ourobligationascustodianofgoodsacceptedforstoragee ndswhenwegivenoticetothe

customer;

10.1.3 theplacefordeliveryandcollectionofgoodsshallnormal lybeatourpremises.

Advice regarding the Act and its effect may be obtained from any of the sources referred to at Clause

7.1 above.
10.2 Maritime Law entitles us in certain circumstances to bring action against a vessel to recover a debt or

damages. Such action may involve the arrest of the vessel through the Courts and its eventual sale by the Court. This right of arrest and sale may continue to exist against a vessel after a change of ownership. Sale of a vessel or other property may also occur through the enforcement of a court order or judgement.

11 SUBCONTRACTING

11.1 We may subcontract all or part of the work entrusted to us by the customer, on terms that any such subcontractor shall have the protection and benefit of all rights and conditions, and of all limitations and exclusions of liability, which exist for us under these Terms of Business. Where we exercise this right we shall remain responsible to the customer for the performance of our subcontractor.

12 NOTICES

12.1 Notice to a customer shall be sufficiently served if personally given to him or if sent by first class post to the customer’s last known address. Notices to us should be sent by first class post to our principal trading address or registered office.

13 LAW AND JURISDICTION

13.1 Any contract or series of contracts made subject to these terms and any non-contractual obligations arising out of, or in connection, therewith shall be governed by and construed in accordance with English law.

13.2 Each of the parties irrevocably agrees that any and every dispute (and any non-contractual obligations, as aforesaid) arising out of or in connection with a contract or series of contracts subject to these terms shall:

13.2.1 ifonepartyactsasconsumer(meaninganaturalpersonacti ngforpurposesoutsideofa

trade, business or profession), be subject to the non-exclusive jurisdiction of the English

courts; or

13.2.2 wherenopartyactsasconsumer,besubjecttotheexclusive jurisdictionoftheEnglishcourts.

14. DISPUTE RESOLUTION SCHEME

14.1 The BMF and the RYA recommend that disputes arising out of or in connection with a contract or series of contracts subject to these terms, when they cannot be resolved by negotiation, be submitted with the written agreement of the parties, to mediation under the BMF’s Dispute Resolution Scheme. Details of the Scheme are available at www.britishmarine.co.uk/drs.

[Montanan]

EU law also stipulates that you must give the consumer a minimum 2-year guarantee (legal guarantee) as a protection against faulty goods, or goods that don't look or work as advertised. In some countries national law may require you to provide longer guarantees.

After-sale responsibilities/faulty products
If the product you sold turns out to be faulty — or doesn't look or work as advertised — within the timeframe of the legal guarantee, you are responsible for this. In some countries this can also be the case if you are the manufacturer or importer.

When can your customer claim redress?
Be aware that you are legally bound by any public statements you make about your products, especially through advertisements or on labels.

If you are a retailer, your customers can ask for redress under the legal guarantee provided by EU law - if an item:

doesn't match the product description
has different qualities from the model advertised or shown to the client
is not fit for purpose - either its standard purpose or a specific purpose ordered by the customer which you accepted
doesn't show the quality and performance normal in products of the same type
wasn't installed correctly - either by you, or by the customer, due to shortcomings in the instructions
If you inform your customer that the product you are going to sell has quality problems, they cannot then claim redress from you about this particular defect.

What can your customer claim?
Your customers have the right to ask you to do any of the following without any charge (for postage, labour, material, etc.):

repair the product
replace the product
reduce the price
cancel the contract and reimburse them in full (in some countries, the sales contract cannot be cancelled if the fault is minor, e.g. scratch on a CD case)
Repair or replacement
In most countries there is a "hierarchy of remedies". This means that your customer must firstly request that you repair the product, or replace it if repair is not a viable option (e.g. too expensive). You must do this within a reasonable time and without significant inconvenience for your customer.

Price reduction or full refund
Another option for your customer is that you give them a price reduction or a full refund, but only if repair or replacement:

is not possible
would be too expensive, given the nature of the product/defect
would be very inconvenient for the customer
cannot be completed by your business within a reasonable time
Additional guarantees
You can also offer the consumer an additional commercial guarantee (warranty). This can either be included in the price of the product or at an extra cost. This warranty does not replace the legal guarantee, which is always a minimum of 2 years, and you must inform the consumer that this will not affect their right to the legal guarantee.

Implementation of legal guarantees and warranties in each country
Each EU country implements the rules slightly differently.

[Montanan]

Specific guidance to the UK.

https://europa.eu/youreurope/citizen...m/index_en.htm

Guarantees and returns – United Kingdom
UK decision to invoke Article 50 of the TEU: More information
Legal guarantee
How long is the legal guarantee for new and second-hand goods?
The duration is 6 years in England, Wales and Northern Ireland and 5 years in Scotland. This applies to new and second-hand goods.This is the maximum time limit, however any claim needs to take into account the nature of the goods and possible wear and tear, for example.

If the product is defective, who is responsible for putting things right?
The seller, including purchases made on an Internet platform. In addition to this, the consumers can make claims against credit card and finance companies if the product is paid for by credit card (directly to the trader) or by finance arranged for this particular purchase. This applies to purchases of the goods of value between GBP 100 and GBP 30 000.

By when must the consumer notify the seller of a defect?
The consumer must act within a reasonable period of noticing the defect but there is no specific deadline other than the legal prescription period of 6 years (5 years in Scotland).

Who has to prove the presence/absence of a defect and how long do they have to do this?
The seller must prove that the item was not defective for the first 6 months after the delivery of the product ("reversal of burden of proof"). After this time the consumer must prove that it was defective.

Is there a third party testing body that can help to provide proof?
The consumer can ask any repair shop for an expert opinion, but they do not have to give one and their opinion might not be accepted by the seller. In the event of a court procedure, the judge may accept the consumer's expert's opinion or ask for an independent expert opinion. There is a limited number of bodies offering industry-specific expertise, but these reports can be costly to obtain with the consumers possibly needing to pay for the report upfront with a view towards it being reimbursed.

What remedies is the consumer entitled to free of charge? Is there a deadline for implementing the solution?
Under the Consumer Rights Act 2015 consumers can argue short term right to reject the item, if the fault occurs within the initial 30 days from delivery date. This law also allows consumers to ask to reject the goods or ask for a price reduction after one failed attempt to resolve the problem through repair or replacement.

In practice, companies will at first offer to repair or replace the item. Consumers can insist on a different remedy if the one offered cannot be provided without causing the consumer significant inconvenience (consumer detriment). When the remedy is considered disproportionate to the value of goods or impossible (trader detriment), traders can insist on a particular remedy (for example, refund instead of repair).

Any solution should be provided within a reasonable period of time.

Is the repaired/replaced product covered by a new guarantee?
No. The guarantee period is only extended by the time necessary for repair or replacement (subject to terms and conditions of the commercial guarantee).

Can the consumer take action against the importer or any intermediary in the supply chain up to and including the producer?
It is normally only possible to claim damages caused by a faulty or unsafe product, but not necessarily remedies under the legal guarantee.

If no amicable solution can be found, what is the deadline for taking the case to court?
The prescription period is normally 6 years (England, Wales, Northern Ireland) or 5 years (Scotland) from the delivery of the goods. This is unless the limitation period is suspended.

Are any other legal guarantees laid down in national law coexisting with the legal conformity guarantee?
Yes. Commercial guarantees given after 31 March 2003 are considered to be legally binding.

Commercial warranty
Who is responsible for application of the warranty?
The party offering the warranty, be it the seller, the producer or a third party guarantor. Always refer to the documentation provided.

On average, how long is a commercial warranty?
Mostly, it is 1 to 5 years, and in most cases 2 years. More expensive goods usually have a longer warranty (even up to 7 years for new cars) which often applies to specific parts of the product.

Is it free of charge?
Not necessarily. The trader can fix the conditions, so it can be free of charge or offered against payment.

Does it have to be confirmed in writing?
The seller has to provide the commercial warranty in a written document or in a durable and accessible format.

What information is required?
It must include the content of the warranty, all essential elements such as duration and geographical coverage, details of the company offering it and a reminder of the legal guarantee. Consumers should also be advised that the warranty can be provided by other parties, as well as that the same coverage may be provided by insurance policies the consumer may have. Consumers need to be made aware that buying a commercial warranty is optional.

[swpalmer1]

Thank you so much for this info. Really appreciate it.
Not much of a guarantee. I think you get a longer one buying a $ 20 toaster.