Marine surveyor liability. Opinions, please.

[MV Wanderlust]

This may have been touched on previously but I didn't find it using the Search feature.

We're wondering if there is some sort of financial responsibility if a marine surveyor should have reasonably picked up on previously repaired hull damage but missed it?

When we bought our boat, we had it surveyed by someone who is AMS accredited. He found a few B-level items but nothing serious. His inspection included a haul out, during which he used a mallet to tap all over the hull.

Thirteen months later, we went to sell it and the buyers' surveyor immediately identified a two foot section of the port side hull that had previously been repaired. Turns out it was easy to spot, visually, and tapping the hull with a mallet produced a visible vibration. Upon closer inspection inside, it was found that the repaired section wasn't not laminated to the stringers. The buyers used that information in their negotiation tactics to knock an additional 12% off of the agreed price.

Had we known about the poorly repaired damage during the original survey, we would not have even bought the boat to begin with.

Our surveyor's contract contains a clause that says, in part, "...the Marine Surveyor shall under no circumstances whatsoever be held responsible in any way for any error in judgment, default or negligence, or for any inaccuracy, omission, misrepresentation or misstatement." Not sure if such a hold-harmless clause would excuse him for this or not.

Experiences and opinions would be appreciated.

John

[rwidman]

My opinion is that if this is really bothering you, you should see a lawyer.

My other opinion is, you're not going to get far with this. You didn't have to accept the cut in the selling price, you could have negotiated or turned the offer down.

[danielamartindm]

Theoretically, you had a reasonable expectation of having a survey competently done, and the very fact that the buyer's surveyor found the defective patch suggests that your survey was not competently performed. An absolute hold harmless clause would likely not hold up in court if evidence of incompetence were clearly presented, as such a contract might be deemed against the public interest. You expected a competent survey for the money you paid; if not, why are we bothering to license and regulate surveyors?
All of this said, IMHO, if you retain an attorney and litigate this, your lawyer will be well compensated, and you could end up losing the case and paying his or her fees out of pocket. Good people with good cases who move through the court system often find themselves encountering deeper and deeper levels of victimization. Personally, FWIW, I'd swallow the loss and move on.

[Lepke]

Good luck on that one.

[boatpoker]

Here in Ontario, Small Claims Court can be up to $25k and costs only $85.00 to file.
What's the story in your jurisdiction ?

[svHyLyte]

Considering your locale, you're out'a luck for a couple of reasons. Firstly, if you signed the surveyor's service agreement and received and accepted his/her report you're bound by it. Secondly, in Florida, the most you could hope for is the recovery of the survey fee if, by some miracle, a court were willing to ignore the terms and conditions of the service agreement. Not discovering relatively minor damage to a small area on a large boat isn't a hang'n offense.

[MV Wanderlust]

Originally Posted by boatpoker

Here in Ontario, Small Claims Court can be up to $25k and costs only $85.00 to file.
What's the story in your jurisdiction ?

Had to look it up. The limit here is $5k.

[zboss]

Good luck but I suspect that only proving gross negligence will get you anywhere - incompetence or simple mistakes need not apply.

[boatpoker]

Originally Posted by svHyLyte

Considering your locale, you're out'a luck for a couple of reasons. Firstly, if you signed the surveyor's service agreement and received and accepted his/her report you're bound by it. Secondly, in Florida, the most you could hope for is the recovery of the survey fee if, by some miracle, a court were willing to ignore the terms and conditions of the service agreement. Not discovering relatively minor damage to a small area on a large boat isn't a hang'n offense.

No miracle required. That disclaimer has been overridden by the courts on numerous occasions in both Canada and the US, most frequently in small claims courts.

Notre Dame Law Review, Surveyor Liability

[denverd0n]

Originally Posted by danielamartindm

...why are we bothering to license and regulate surveyors?

Here in Florida, at least, and I believe throughout most of the United States, surveyors are NOT licensed and regulated!

All of the different certification agencies are private, member-financed, industry organizations.

That said, in general, waivers that say someone is not responsible for negligence or misrepresentations are regularly ignored by courts. You are pretty much always responsible for negligence and misrepresentations. So, can you prove negligence? In this case, I think that would be pretty difficult.

Regardless, my advice to anyone who is considering a lawsuit would be to begin by reading "Bleak House," by Charles Dickens. First and foremost because it is an outstanding example of English Literature, and just a really good book. Second, because the story of how the lawyers are -- in a great many cases -- the only real "winners" in a lawsuit holds just as true today as it did 150 years ago.

In any case, good luck to the OP.

[MV Wanderlust]

Thanks for the input, everyone. It sounds like we probably won't pursue this. Good information, though. It'll probably come up again some time.

[nautical62]

The only thing I'll add is that just because someone states you can't sue them, doesn't mean you can't. People who have signed liability waters sue all the time and win.

[David M]

A smart surveyor will have a disclaimer about being liable for missing something. Yes, liability waivers only help. They are not bullet proof.

Surveyors are human too and being imperfect, will occasionally miss things.

If you want closer to perfect than that then pay the money to hire a second surveyor to find items the first surveyor may have overlooked.

Still, don't expect perfection even then, just closer to perfect. They are human.

[S/V Illusion]

This has come up before, both here and on other forums.

The short answer is the any surveyor, in any state, can and often is financially liable for damages due to an error or omission in survey.

If that wasn't the case, the entire insurance industry which underwriters people including marine and residential inspectors would be useless.

All marine surveyors carry E&O insurance specifically to cover them when they make dubious mistakes. Nothing in a survey agreement limits their liability.

This isn't legal advice but if you get it, any lawyer will agree.

[captd44]

Maybe you should name the surveyor that isn't highly recommended so the next person isn't a victim? I've been very impressed by one out of many.