Surveyor declines to Survey Hurricane Repaired boat!

[MikeHoncho]

Sounds like a simple phone call would clear up any confusion in less time than it would take to make and read all these guesses.

[sail sfbay]

Hire another surveyor?

[Montanan]

I suspect the surveyor knows that there are inherent risks associated with making a profession opinion regarding Said boat and is disinclining to become involved. Which if that is the situation is Red Flag for a purchaser.

Topical Reference: https://www.linkedin.com/pulse/respo...redith-morgan/

This in not dissimilar to a building inspector or a land inspector's service.

[TeCo]

There was a Cat advertised in Catamaransite.com and Shared on FB located in FL that it was claimed to have just a "minor hurricane damage" when it was surveyed it was found to be a total insurance write off. Not saying this is the boat you are looking at but you could search FB for the model and comments.

this is the link:
https://www.facebook.com/groups/1597...33806883592466

[Nobody]

maybe he is friends with the boat owner and does not want to write up a survey knowing the condition
find another surveyor or another boat

[gonesail]

so he knows the name of the boat without you giving it .. and he is running away? sounds like a clue to me .. but your decision

[joelhemington]

Originally Posted by rexripley

Wrote a surveyor to inquire about availability for a boat, I didn't tell him the boats name but did tell him model etc. I have a survey done a few months old that seems to be an interim survey, but before buying of course I was going to have my own survey done.

His response:
"Sorry but I am unable to survey <boat name>"
"Yes, I was here during the hurricanes of 2017 and saw what happened."
"I was not involved with the damage surveys or repair of this boat"

One interpretation is that because he wasn't involved all along he can't know if it was repaired correctly.

Another interpretation was he thinks the boat is not sound.

This isn't a generic condo cat which they make thousands of.* This is a genuinely quality boat, from a great builder, which has good performance and design and which there are not any more being made. So, I can't just move on. There are zero of them on the market.

Apparently a lot of the best surveyors are booked up for months just now - if that were the case, you'd think he'd have just said so.

[contrail]

FWIW, I would make a small bet that I can identify the location, and the surveyor! PM me, if you want. If I am correct, he is a very good and experienced surveyor, and one of a small number of surveyors, who are also qualified, in that area, most of whom are friends of mine. IF so, it is his standard policy NOT to survey boats damaged in hurricanes, in whose repair and insurance claims he was not involved, as he has no way of acertaining exactly what repairs he would have suggested, nor how the actual repairs were done. As a few actual surveyors have mentioned, up thread, it is very difficult to comment on complex repairs in which he or she has been involved.


"The insurance company did the repair" is pretty vague. If they paid for the repair of a clients boat, there will be much documentation in the possession of the surveyor overseeing the work. If they own the boat, and repaired it in that context, it was most likely totalled. I would ash whoever the owner is to name the surveyor involved, and ask for copies of the survey records, etc. etc.



If the seller wants to sell, there will be no reason to deny that request, although you are not "entitled to it". If the seller denies that request, that is a huge red flag. Anyone wanting to sell a boat with a substantial damage claim, will understand why you want that information and will be eager to put your mind to rest.



I would not read anything into the surveyor's reluctance to be involved in something of which he cannot legitimately analyze. And, by the way, it is not unusual for surveyors to be familiar with names of boats in their areas. He may have done a previous purchase survey on it, for example. Just ask the correct questions of the correct people.

[Clivevon]

Interesting situation. My thoughts are:
"This isn't a generic condo cat which they make thousands of.* This is a genuinely quality boat, from a great builder, " Maybe that used to be so, but if its been wrecked so badly that a local surveyor understands that any repairs could be problematic & maybe not properly carried out - well, this boat isn't a genuinely quality boat any more, is it??
The surveyor has a perfect right to choose what work he does or does not do - I certainly did (in a different line of business). Why not just ring him & ask why he wont do a survey on this boat?
Why not ask the seller for full disclosure of all the paperwork he has relating to the accident, the damage, the claim & the repairs ? then contact that surveyor & ask them to survey the boat for you? Then pass all that info to your insurers & ask them for a quote? Full disclosure from everyone all the way is the only way to go.
When you have done all that you can assess the situation again in the light of what answers you got.

[Fore and Aft]

I recently spent two hours surveying a home built plywood cat. I ended up stopping and telling the buyer there was no way I was going to put what I found in writing. The buyer was pissed and found another surveyor with eyesight problems who did the survey.
This cat ended up getting $50,000 of repairs which still didn't matter as the original build of the boat was still compromised.
Cheers

[sailorboy1]

I think I would walk away from a boat that you couldn't even pay a surveyor to look at.

[Searles]

Stick with boat poker ⛵️⚓️

[verkerkbr]

The Surveyor has the responsibility to a client. If severe hurricane damage has occurred and perhaps resulted in a write-off.

Then somebody buys the wreck, instead of scrapping it, and does the repairs.

How that is done and under which circumstances is not always known.

A good survey cannot be done without all the details.

Therefore the surveyor declines to do a survey of the Boat.

[rexripley]

Here's what I'm really asking: Is there a database somewhere of hurricane totalled boats that I can access to verify the nature and size of the claim?

I'm already planning to ask the buyer for a complete set of documentation from the initial damage survey to present.

One thing people seem to be missing is, based on all the info I have -- including a survey from a reputable surveyor that is less than a year old-- the boat had minor damage that was repairable and has been repaired to a high quality. The survey did note some additional work that needed to be done, all of which I am going to assume is done (or will affect negotiations when I get my own survey done.)

Originally Posted by Orion Jim

Unless a surveyor has access to the documents (presuming they exist) recording the original extent of the damage and the schedule of remedial repairs dictated by the surveyor, which should establish that each step was documented before the next step was initiated, most reputable surveyors would be inclined to avoid your request. Likewise if those records do not exist most insurance underwriters would decline any request to accept an “after the fact” survey since it would be based on speculation.

Ok, the Survey I have is from a very reputable surveyor, and I was going to other surveyors to avoid "using the surveyor recommended by the broker" -- because the broker recommended him and I had already found him independently from individuals recommendations-- but then he turned out to be the one doing the survey for insurance purposes.

I think maybe I should use him and ask for a clause stating that the boat is sound, the repairs have been supervised by his agency, and the like.

If he will sign on the dotted line saying he can attest to the quality of repairs and condition of the boat then that should suffice.

Originally Posted by Montanan

I suspect the surveyor knows that there are inherent risks associated with making a profession opinion regarding Said boat and is disinclining to become involved. Which if that is the situation is Red Flag for a purchaser.

Agreed, so I should probably retain the same surveyor the insurance company did.

Originally Posted by contrail

IF so, it is his standard policy NOT to survey boats damaged in hurricanes, in whose repair and insurance claims he was not involved, as he has no way of acertaining exactly what repairs he would have suggested, nor how the actual repairs were done. As a few actual surveyors have mentioned, up thread, it is very difficult to comment on complex repairs in which he or she has been involved.

Thanks for your suggestion, I had been leaning toward it but now I know I must ask for the complete record of the damage and repairs, including all surveys and then I will have the same surveyor attest to the condition of the boat.

One thing is there was a bit too much weasel words in the survey, along the lines of "no observed stress cracks in the areas where we could observe them".

Originally Posted by Clivevon

Why not ask the seller for full disclosure of all the paperwork he has relating to the accident, the damage, the claim & the repairs ? then contact that surveyor & ask them to survey the boat for you? Then pass all that info to your insurers & ask them for a quote? Full disclosure from everyone all the way is the only way to go.

Agreed. That is exactly my plan.

Originally Posted by Fore and Aft

I recently spent two hours surveying a home built plywood cat. I ended up stopping and telling the buyer there was no way I was going to put what I found in writing. The buyer was pissed and found another surveyor with eyesight problems who did the survey.
This cat ended up getting $50,000 of repairs which still didn't matter as the original build of the boat was still compromised.
Cheers

I assure you, I am not that buyer. I want proof the boat is sound. Not an opinion. Proof the insurance company accepts, plus liability on the part of the people making the representations. In that situation I will proceed, but absent that I will walk away.

Thanks everyone for the comments!

[Montanan]

Originally Posted by rexripley

Here's what I'm really asking: Is there a database somewhere of hurricane totalled boats that I can access to verify the nature and size of the claim? No.

I'm already planning to ask the buyer for a complete set of documentation from the initial damage survey to present.

One thing people seem to be missing is, based on all the info I have -- including a survey from a reputable surveyor that is less than a year old-- the boat had minor damage that was repairable and has been repaired to a high quality. The survey did note some additional work that needed to be done, all of which I am going to assume is done (or will affect negotiations when I get my own survey done.) Any prior survey opinion will not convey legal benefit to you. It will be just a professional qualified opinion as of a point in time issued to the party that commissioned the survey.



Ok, the Survey I have is from a very reputable surveyor, and I was going to other surveyors to avoid "using the surveyor recommended by the broker" -- because the broker recommended him and I had already found him independently from individuals recommendations-- but then he turned out to be the one doing the survey for insurance purposes.

I think maybe I should use him and ask for a clause stating that the boat is sound, the repairs have been supervised by his agency, and the like.

If he will sign on the dotted line saying he can attest to the quality of repairs and condition of the boat then that should suffice. Suffice for what specific purpose?



Agreed, so I should probably retain the same surveyor the insurance company did.



Thanks for your suggestion, I had been leaning toward it but now I know I must ask for the complete record of the damage and repairs, including all surveys and then I will have the same surveyor attest to the condition of the boat.

One thing is there was a bit too much weasel words in the survey, along the lines of "no observed stress cracks in the areas where we could observe them".




Agreed. That is exactly my plan.



I assure you, I am not that buyer. I want proof the boat is sound. Not an opinion. Proof the insurance company accepts, plus liability on the part of the people making the representations. In that situation I will proceed, but absent that I will walk away.


I suspect that you are asking for guarantees that will not be forthcoming. At least for the small cost and limited amount of time a surveyor actually commits to Said survey.

Thanks everyone for the comments!

Snipets referenced from: https://scholarship.law.nd.edu/cgi/v...0&context=ndlr


Given Prosser and Keeton's textbook definition of the negligence
action, in order for a surveyor to be liable to a carrier, the carrier must
prove by a preponderance of the evidence that: (1) the surveyor owed a
duty to conform to a standard of conduct for the protection of the carrier; (2) the surveyor failed to conform to the standard of conduct for the
protection of the carrier; (3) there exists a reasonably close causal connection between the conduct of the surveyor and the resulting injury of
the carrier; and, (4) the carrier's injury consists of some actual loss or
damage. Each of these elements is significant, and as to each the defendant may interpose defenses. The existence of these defenses and the fact that in ship loss cases the cause of loss is often unknown make the
plaintiff's case difficult.

The Surveyor's Duty of Due Care

the general principle in admiralty malpractice cases that "ordinary care is that degree of skill which reasonably may be expected of one in the given circumstances .... It is that degree of skill that prudent men in the business in hand would be likely to exercise under the same circumstances."

Variation by Agreement
While surveyors' duties are dictated in part by federal law and professional customs, courts have held that the parties to a surveyance contract may modify their duties by agreement. This is not surprising since
the surveyor's task in any particular assignment may vary greatly.


Breach of the Duty of Due Care
1. Proving Negligence
Although one may appeal to professional custom, federal law, classification society rules and contractual agreements as sources of surveyors'
duties, often it is difficult if not impossible to determine whether any duty
was breached. When a ship is lost at sea the evidence of any misfeasance
by the surveyor may be lost with the ship.
. . .
namely, the combination of a lack of physical
evidence, conflicting opinions of experts and questions of intervening
cause absolve surveyors from liability almost ab initio

Application of the Unseaworthiness Doctrine

Because of the problem of proof, plaintiffs in ship loss cases have
argued that pursuant to "the unseaworthiness doctrine" the courts
should presume that the defendant surveyor was negligent and that the
negligence caused the injury, absent proof of due diligence by the surveyor.
Any discussion of "the unseaworthiness doctrine" is likely to
evoke confusion because the term is associated with several distinct maritime law principles. The term "unseaworthiness" is associated with such
court-made rules as the warranty of seaworthiness in marine' insurance
and the unseaworthiness remedy in marine personal injury cases. In
the context of negligence cases against surveyors, though, "the unseaworthiness doctrine" refers to a maritime presumption "that a vessel lost under normal conditions, with fair weather and calm seas .. .was unseaworthy in the absence of proof that she was improperly handled.
In such a case, "the owner of a [vessel] is responsible for its unseaworthiness and warrants [the vessel] is '... . sufficiently staunch and strong to withstand the ordinary perils to be encountered on the voyage.'


Reasonably Close Causal Connection
Some surveyor malpractice cases have also declined to find surveyors liable because of the inability of the plaintiffs to prove the element of
proximate cause, or "a reasonably close causal connection," This difficulty in showing proximate cause consists of several related problems including: (1) the consequences of an improper survey are sometimes unforeseeable; (2) the loss of a vessel is often attributed to a force majeure; and (3) the vessel owner's failure to repair a known defect may constitute an intervening cause. Overall, such case law demonstrates the strength of common law defenses in negligence actions against surveyors.

. . .

Acts of God
When the loss of a vessel occurs during a voyage, questions of fact
will arise as to whether a storm or other act of God caused the loss.
. . .

Superseding Causes
Because a vessel owner has a legal duty to make the ship seaworthy,
courts have held that a vessel owner's intervening failure to prevent the
loss is an intervening cause. The court said that
this potential bar stems from the long-standing policy or rule that the
owner of a ship has a non-delegable duty to maintain a seaworthy vessel .... [R]egardless of whether the defendants acted in violation of
rules or not, the fact remains that the owners and charterers were fully
informed of the defects. With knowledge and opportunity to remedy
the defects, [they] . . . "took a calculated risk and lost."'



Damages
1. Cargo and Vessel Loss
The final and most perfunctory of the elements of negligence is actual damage. While the existence of some damage is seldom in dispute,
the amount of damages, the method of calculation, and the proper theory for their recovery is often debated. Since the items of damage in a
surveyance case are peculiar to admiralty law,' they deserve attention
here. Principally, suits against surveyors involve loss of cargo, loss of
vessels, loss or injury of seamen and cleanup costs of marine pollution.
Special statutes and case law principles have developed in these areas
which fix the liability of vessel owners to injured parties.


Division of Losses
Each of the above categories represent losses which a marine surveyor's negligence may cause. However, surveyors are often not sued
directly, but as third parties for either indemnity or contribution.
. . .
courts now assess damages in such cases on the
basis of proportional fault when such an allocation can reasonably be
made."

The Contractual-Warranty Theory in Surveyor Malpractice Cases
One alternative to a negligence approach to liability for surveyors is
a contractual-warranty theory which approximates the liability of manufacturers for injuries caused by the defective design of a product. Despite the fact that surveyors are land-based marine
contractors, as are stevedores, most federal courts have refused to apply
the warranty to surveyors.

The Warranty of Workmanlike Performance

Federal courts have struggled over when to apply the Ryan warranty
to other marine contractors.'

Perhaps the most thorough discussion of the warranty issue is found
in Great American Insurance Co. v. Bureau Veritas. Although the Great
American court was willing to recognize duties of due care, it balked at
raising these duties to the status of a warranty. In so holding, the Great
American court offered three arguments against applying the warranty to
surveyors. First, the court recognized that unlike the stowage of cargo,
the seaworthiness of a vessel cannot be fully delegated to a marine service contractor. Along the same vein, the court also noted that "the
activities of a classification society aboard ship rarely, if ever, would create hazards or defects by its functions and activities." . . . Third, the court acknowledged that the application of Ryan would simply be unjust and financially ruinous to the surveyor in that it would make it "the absolute guarantor of any vessel it surveys."

The task of assessing surveyors' liability in the final analysis may be as delicate as chartering the course between Scylla and Charybdis.