Marine Investigations

Boat Owners

Occasionally surveyors are called upon by boat owners, often at a time when the boat owner perceives that he may have a problem with his insurer, a boat yard or perhaps a warranty issue.

A surveyor can work both sides of the street, i.e. for insurers and insureds, without conflict of interest so long as he does not take cases against his client.

However, a word to the wise: taking a case against an insurer may preclude him from ever getting any work from that insurer in the future.

Thus, when taking work from insureds or boat owners it’s best to find out who the insurer is before accepting the case. Never take a case against a current client.

Working both sides of the street can accrue to the benefit of the investigator.

Prior to his testimony, either in deposition or on the witness stand, one side will attempt to qualify him while the other will attempt to disqualify him.

Opposing lawyers often try to paint the insurance company’s surveyor as being biased in favor of the insurer on the basis that he only works for insurance companies.

That is an understandable, but uninformed view of the insurance surveyor whose job is to act independently of the insurer’s interest. This charge is largely defeated when the surveyor can testify that he has worked for both boat owners and insurers.

Unresolved Warranty Claims are another source of clients for marine investigators particularly in the areas of structural failure and machinery damage.

The marine expert can often provide the critical element that motivates manufacturers to settle rather than litigate warranty issues and thus provide a valuable service to boat owners.

One problem with working for individual boat owners is that occasionally we run across one who thinks that because he is paying the surveyor, the surveyor should write anything that the client asks him to.

It is best for the surveyor to get an understanding up front with the client that he will report his findings as he finds them.

One way to handle that is to ask the client straight out how he will feel if the investigation findings go against the client’s interest.

Other Clients

From time to time the surveyor is called on by banks, boat yards, builders, brokers, dealers, even governments and other interests when boats they own or are involved with suffer casualties.

At one time a department of the Federal government was one of my best clients and I never found out how they got my name. Local governments that have large marine interests are also potential clients.

Some of the most bizarre cases I’ve ever had have come from these. Such clients are usually not amenable to direct solicitation, but are usually gained by referral.

As with boat owners, such clients may seek to have the surveyor represent their interest.

Each of these clients will have a different perspective and one needs to be cognizant of that fact and prepared to deal with the issues that arise from it.

For example, private individuals are far more prone to want his expert to be a mouthpiece for his views than, say an insurance company or bank that is very unlikely to attempt to influence the expert.

I have never run across a bank or insurance company that tried to influence my opinion, but I’ve had innumerable boat owners, brokers, builders, boat yards and dealers who go to extremes to attempt to edit my findings and opinions.

Arbitration and mediation are increasingly being used as a means of avoiding the terrible costs of litigation.

These two terms are often used as synonyms, but are actually to very different processes.

Mediation is the effort to resolve a dispute by means of attempting to bring the two parties to agreement. Arbitration is a matter of review and judgement, either by a panel or individual, in which case the outcome is considered final.

Binding arbitration is usually included in a contract in lieu of litigation. Increasingly purchase agreements have arbitration clauses in them.

Mediation of marine disputes is becoming increasingly common of attempting to resolve differences. As far back as twenty years ago I have been hired by boat builders to mediate warranty claims.

The mediator performs the same function as the arbiter, but then attempts to persuade the parties to come to an agreement based on the understanding that a less than perfect settlement is bound to be better than risking a loss in court.

Binding arbitration is finding it’s way into ever more contracts including insurance policies and this offers yet another avenue of business, since arbiters are usually well paid.