Mr. De Blok has a purchase inspection of his boat performed. A year and a half later, water leaks in from the roof along the windows of the wheelhouse. Can he seek redress from the surveyor?
The wheelhouse roof of Mr. De Blok’s motor yacht turns out to be full of water after disassembly. According to the insurance expert, the damage should already have been present during the purchase inspection. De Blok argues before the Geschillencommissie Waterrecreatie that the purchase expert has not been on the roof, has not measured any moisture and that the expert report does not mention anything about the roof. He claims 7,000 Euros in damages. In his defense, the expert states that during an inspection, the exterior above deck is looked at closely and that he beats decks and roofs, as far as accessible, with a rubber mallet and measures the moisture levels. If the defect had really been present during the purchase, he would have noticed it. In addition, at the beginning of an inspection, he always asks all parties if the vessel has any known damages, defects and/or accidents. He stated that the seller did not say anything about the roof. However, Block stated that the seller would have reported during the inspection that the saloon roof was weakened. The expert denies this. He also challenges the insurance expert’s conclusion that the defect would have existed at the time of purchase.
An expert appointed by the Disputes Committee notes that the wheelhouse roof is a polyester sandwich construction and any screw turned in such a laminate can lead to leakage. The core material of balsa wood is very moisture sensitive. If that stays wet because the water can’t get out, it will get wood rot, resulting in delamination. This expert notes that the ship has been outside for two harsh winters and that this has allowed it to collect moisture. In retrospect, therefore, it cannot be determined 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: those two harsh winters outside may have caused the problem. De Blok’s claim – and thus also the insurance claim – is rejected. As a final consideration, the Committee considered that, on the basis of Article 5(8) of the HISWA Terms and Conditions, the claim against the surveyor was time-barred, because it was submitted more than a year after the purchase.
A surveyor whom you engage when buying 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 to the best of his ability and in a careful manner, but that he is not necessarily liable for defects that he has missed. He usually makes reservations for those parts that can only be inspected by eye. For example, he will never drill holes because he will make the vessel worse by doing so. If no specific instruction has been given for such destructive examination, a surveyor cannot be held liable for problems that only come to light after such an examination. He is, however, liable for gross negligence. If, for example, the expert misses the fact that a certain electricity cable runs right past the engine, creating a high risk of fire, he will have some explaining to do… Can you then hold an expert liable for all the damage suffered? That is not the case either. Usually, especially for the HISWA-member surveyors, the general conditions of the surveyor contain an exclusion clause for consequential loss: the costs of repair of the defect that has not been discovered. In addition, those conditions also contain a limitation of liability, which means that compensation is limited to a maximum of x times the amount of the surveyor’s invoice. The conditions also contain a limitation period of one year.
Tip 1: Remember that even a purchase inspection is not sanctifying. Be critical when buying your dream boat. Ask the seller/broker more questions and, if you call in an expert, have him or her critically examine the boat. If he suspects something, take the risk of destructive examination. That can prevent great misery afterwards! If the surveyor has doubts about something, take appropriate action.
Tip 2: Check the surveyor’s conditions for limitations of liability and whether he is a member of the Water Recreation Disputes Committee. In case of problems afterwards, you can at least call him to account there without having to go directly to court.
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