Mr. De Vries has a purchase inspection of his boat performed. A year and a half later, water from the roof leaks in past the windows of the wheelhouse. Can he seek redress from the surveyor who inspected his boat before purchase? Mr. Frits Hommersom explains.
The wheelhouse roof of Mr. De Vries’ motor yacht turns out to be full of water after disassembly. According to the insurance expert the damage must have been present during the purchase inspection. De Vries argues before the Geschillencommissie Waterrecreatie that the purchase expert has not been on the roof, has not measured any moisture and that the survey report does not include anything about the roof. He claims 7,000 Euros in damages. An expert appointed by the Disputes Committee finds that the polyester wheelhouse roof has a sandwich construction with moisture-sensitive balsa core. The expert notes that the ship has been outside for two harsh winters and that this has allowed it to accumulate moisture. It is therefore impossible to determine in retrospect whether the moisture was already in the roof at the time of purchase.
Because the parties contradict each other, the Committee opts for the expert’s conclusions. The claim of De Vries is rejected. For the sake of completeness the Committee considers that, on the basis of article 5 paragraph 8 of the HISWA conditions, the claim on the surveyor is time-barred because it was submitted more than a year after the purchase. The surveyor you engage when purchasing a ship has a so-called best efforts obligation and not an obligation to achieve a result. This means that the surveyor must carry out a survey carefully and to the best of his ability, but that he is not necessarily liable for defects he has missed. He usually makes reservations for those parts that can only be inspected by eye. For example, he will never drill holes of his own accord, because by doing so he will make the ship worse. If no specific instruction for such destructive examination has been given, an expert cannot be held liable for problems that only come to light after such an examination has been done. He can, however, be held liable for gross negligence if he misses things that he should have been able to detect with the naked eye. Can you then hold an expert liable for all the damage suffered? This is not the case either.
Usually, the general terms and conditions of the assessor contain an exclusion clause for consequential loss: the cost of repairing the defect that was not discovered. In addition, those terms and conditions also contain a limitation of liability, which means that compensation is limited to a number of times the amount of the expert’s report. Furthermore, the terms usually contain a one-year statute of limitations.
Tip 1: Keep in mind that even a purchase inspection is not sanctifying. Be critical when buying your dream boat. Ask the seller/broker and, if you hire an expert, let him examine the boat very critically. In case of a suspicious situation, rather take the risk of a destructive investigation. This can prevent major problems afterwards.
Tip 2: Check the conditions of the surveyor for limitations of liability and check whether he is a member of the Water Recreation Disputes Committee. In the event of problems afterwards, you can then call the surveyor to account without having to go directly to court.
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