The role of the surveyor as advisor/mediator/expert in (legal) disputes in the yacht building and water sports industry was the theme of a symposium organized by Hommersom Advocatuur, which attracted considerable interest in Utrecht at the end of October.
Almost 80 people attended the symposium, including surveyors and loss adjusters, brokers with a technical affinity and representatives of yacht and ship insurers.
Frits Hommersom spoke about the liability of the surveyor and the substantial defects regulation as laid down in the HISWA and NJI model agreements for purchase and sale, which are used by many companies in the industry. The main conclusion, according to Hommersom, is that this liability is related to the care taken by the contractor and the economic relationship between the parties. Entering into the agreement first and the uncertainty/consequences of the inspection afterwards forms an area of tension.Former judge Evert Jan van den Berg took the attendees from the judicial angle on how an expert examination is put together, what is involved and especially the issues that a formally appointed judicial expert has to adhere to.
A poll of those present at the lecture on ‘liability of the expert’ showed that only a minority had taken out professional liability insurance. The conclusion is that although the obligation of an expert is basically an obligation to perform to the best of his ability, this cannot exclude liability under all circumstances.
Ultimately, the expert’s performance is still measured against what a reasonable acting professional would have done in a similar situation. Liability insurance is actually indispensable in this professional group as well, given the interests at stake. Exoneration clauses are not always sanctifying and depend on the circumstances of the case.
During the panel discussion, with regard to the clause in contracts concerning subsequent inspection/significant defects, noises were heard to the effect that ‘things rarely go wrong’, or that a prior inspection would mainly entail costs, without the certainty of sale. In general, it was indicated that the possibility of pre-inspection existed, or at least that this was not forbidden but not actively promoted. This possibility could be communicated to the consumer in a more proactive way, rather than assuming the default of a contract with subsequent testing. A point that also needs further elaboration is the liability of the seller and yachtbroker in the case of ships that are sold ‘as is’ at rock bottom prices or below.
The theme of ‘stick to your last’ was based on the proposition that (technical) surveyors should not concern themselves with commercial valuations, but that this should be left to brokers. This resulted in different points of view. The fact is that the outcome of a commercial valuation of a vessel cannot be determined solely on the basis of a purely commercial valuation, but is also determined by the (technical) condition of the vessel, in particular any defects. With this the technical condition of the vessel can be determined. The costs of repairing defects can be charted on the basis of, for example, quotations from relevant parties, so that a realistic picture can be formed of the value of a ship and a considered purchase/sale decision can be taken.
n practice, pre-inspections and valuations in the context of taking out insurance appear to be very sketchy. The importance is evident, for both the insured and the insurer: to be able to form a sound opinion of the condition and value of the vessel to be insured and of the insured/insurable risk.
The view held by insurers is that reports are very brief and the response from the audience was that experts, within the framework of the agreed rate, can only test a limited number of components. A pre-inspection report should meet a number of minimum requirements and consist of a check, an opinion and advice to the client and insurer on subjects. One suggestion that merited further elaboration was that, following the example of the automobile sector, efforts should be made to achieve a kind of periodic ship health check, so that on a number of essential components there would be an up-to-date recording of the state of affairs, with which the risks for both the insured and the insurer could be adequately mapped out.
From the liveliness of the discussion, also during the subsequent networking reception, it can be concluded that the symposium was seen as a useful impetus to more consultation between the various or