Surveying Fiberglass Power Boats

Legal Responsibility

Whether we are aware of it or not, our society and its legal system places a very heavy burden on the marine surveyor.

In defining what a survey is, we cannot escape from what the law of the land has to say about the service he offers. It is inherently bound up in the statutes of the states in which we operate.

All throughout this book the reader will find that, underlying every decision the surveyor has to make, is a legal consideration, i.e., what is our responsibility under the law.

This is not, of course, a legal treatise, nor are we required to be lawyers.

Knowing your legal responsibilities is, for the most part, a matter of common sense and ethics. If you behave sensibly, responsibly and ethically, you’re not likely to get in trouble so long as you have a basic understanding of professional responsibility.

A Written Record of Performance

The one thing that distinguishes a surveyor’s work product from many other types of service is that he issues his findings in writing.

What he does and what he says becomes memorialized in a written record. Herein lies the heaviest burden, one that poses serious liability hazards to the surveyor.

The report provides an obvious illustration of the surveyor’s expertise as well as his performance for all to see.

If a surveyor is not truly qualified to practice the profession, it is impossible for him to conceal his shortcomings in the written report, much as he might think he can bluff his way through.

As Ralph Waldo Emerson put it, “What you are speaks so loudly I cannot hear what you say.”

Remember that a surveyor is responsible for all that he writes and lack of knowledge or training cannot be concealed in a report.

Pass-On Surveys

Moreover, that report, although initially given to the client, may be given to others such as insurance companies, finance companies, or other prospective buyers who are not the surveyor’s client, and who have not paid him a fee.

Or, if your client doesn’t buy the boat, he may even sell your report to another buyer.

There have been several cases of which I am aware where surveyors have been held liable for errors in “pass on” surveys.

These are surveys that the client has given to others who have held the surveyor liable for the survey’s contents, even though the service was not provided for that individual.

How could this be? Well, by reason of the fact that the survey was construed to be a document of fact provided by an expert in his field, for which it mattered not who was relying on the information contained therein.

It was deemed irrelevant for whom the service was provided since the document ended up in the hands of another, to whom it caused harm.

I’ve avoided using legal jargon here, but that is essentially what some courts have ruled. Whether we think it’s fair or not, our actions should be guided by that reality, a reality of which we should be constantly aware.

If we hold ourselves out as professionals, we can and will be held to a much higher standard than others.

It is therefore wise to remember that the client is rarely the only person who relies on our work.

Having said that, it also needs to be said that the marine surveyor does not have to be heavily versed in law to know what his responsibilities are.

The surveyor’s legal responsibility is easily defined as: liability for the accuracy and thoroughness of the advice for which he was hired to provide, regardless of who ultimately makes use of it.

 It is only when we get into the scope of the service provided that we run into more than a little difficulty in trying to determine what it is we are supposed to do.

Defining A Pre-Purchase Survey

This discussion of the definition of a surveyor begins laying the groundwork for defining what a survey is.

That’s because we first have to understand the qualifications of a professional surveyor before we can know what kind of service he is capable of offering. After all, one doesn’t go to a podiatrist for brain surgery.

Having testified in over a hundred cases in court in which the scope of a marine survey was at issue, it is more than clear to me that there is not a universally understood definition, not even amongst surveyors, as to just exactly what a buyer’s survey is or should be.

It’s rather like trying to define what is a lawyer or what is an engineer.

At fist glance, the subject seems too broad to be able to sum it up succinctly. It’s unfortunate that neither the profession nor its several professional societies have never promulgated a concise, standard definition or general outline of what constitutes a proper survey.

Yet, if we give it a little thought, it’s not really all that difficult once we’ve explored some of the legal ramifications. Once we know what society expects of us, it’s a lot easier to perform.

Primary Objective

For nearly thirty years I’ve heard yacht brokers complain that the surveyor’s job is to determine the condition of the yacht, not to comment on design or construction problems.

On the other hand, I’ve never seen a broker assume that responsibility and co-sign a survey report.

This disingenuous argument suggests that if a vessel has a design problem that poses a serious hazard, the surveyor should ignore it.

One can anticipate that, in the event of a dispute, this would be a difficult argument to sell to a judge or jury.

First and foremost, the primary objective of the pre-purchase survey should be safety. This is dictated for both moral and legal reasons.

The client is relying upon the surveyor’s expertise as to the safety of a vessel, regardless of whether the client has asked any questions about safety, or whether the surveyor does, or does not, make any overt representations as to the safety of a vessel.

Secondly, when a survey is carried out, it is legally implied that safety is the overriding purview of the service being provided.

Safety is inherent in the meaning of the survey itself. The client doesn’t have to ask about it, nor does the report have to mention it.

From a legal standpoint, a surveyor must assume that any court would agree that the primary concern of the surveyor must be the safety of the vessel and its occupants.

The surveyor can be held liable for errors and omissions, regardless of how fancy his disclaimers may be. Many surveyor’s reports contain disclaimers that are utterly worthless in face of the law.

The novice surveyor should not be fooled into thinking that he is protected by such nonsense. He cannot disclaim his legal responsibilities.

The second factor involved in conducting a survey is purely economic.

The surveyor’s job is to determine the condition of the vessel, and since condition is tied directly to maintenance costs, part of the survey function is to assist the client in avoiding economic loss by providing accurate assessment of condition.

To fail to discover a condition that requires costly repair is a failure of assessing condition, a failure for which a surveyor can be held liable.

With these points in mind, it is readily apparent that the performance of a marine survey is a serious responsibility that should not be undertaken by amateurs as a means of supplementing one’s income on a part-time basis.

The prospective surveyor would be wise to remember that, upon completion of a survey, he has to write a report and sign his name to it.

His conclusions and findings become memorialized in a written record that imposes serious legal responsibilities on him ranging far beyond just the client/surveyor relationship.

For the person who intends to make a career of surveying yachts and small craft, one of the best ways to answer the question “what is a survey?” is from the legal standpoint.

Every time a surveyor is contracted by a purchaser to perform a pre-purchase survey, he should be aware of his legal responsibility.

The fact that the client is relying on the surveyor for information on which he intends to base his purchase decision should give every surveyor pause for frequent consideration. Having a precise definition that defines the scope of his service will help.

A marine survey is a service intended to provide a prospective buyer with sufficient information as to the condition, safety and performance of a vessel, its equipment and machinery to enable the buyer to make an informed purchase decision.

The survey includes a signed, written report that will be provided as verification of the surveyor’s findings and therefore relied upon by other persons or businesses as a basis for making financial decisions.