Surveying Fiberglass Power Boats

Limitations of Scope

When a surveyor undertakes to conduct a pre-purchase evaluation of a vessel for a client, that surveyor’s obligation to that client can be either as all-inclusive or as narrow as he can legally make it.

It is up to the surveyor to determine the scope of the service he provides.

On the other hand, the surveyor does have an obligation to make sure that the client fully understands any and all limitations of that service.

In other words, lacking the benefit of some agreement between client and surveyor as to the scope of the surveyor’s service, it would not be unreasonable to assume that the surveyor’s responsibilities are open-ended.

Unless, that is, the surveyor takes steps to define the limitations of the service provided to the client.

There are limitations on this, of course, as when a surveyor provides a partial service but charges a prevailing fee for a full service.

Or, as when he only does a partial survey but gives the impression that the partial survey is providing the basic necessities of a full service when, in fact, it does not.

A surveyor who purports to be providing a pre-purchase evaluation of a vessel, but seriously limits the scope of the survey to less than the common practice, is setting himself up for trouble.

It goes without saying that a surveyor doesn’t have x-ray vision and doesn’t have the ability to tear a boat apart, examine every detail, and then put it back together again.

But it would be foolish to assume that a client fully understands those limitations.

For that reason alone we need to take steps to ensure that the client is made aware of the scope of the service and its limitations.

However, there is a general rule of common law that says that a product or service provider cannot contract out of law. In other words, he can’t make agreements that abrogate, say, existing consumer laws currently on the books or, for that matter, existing legal precedents.

Attaching disclaimers at the end of survey reports stating that the surveyor is not responsible for his mistakes has no legal standing whatsoever.

Nor can he obtain a waiver from the client absolving him from negligence and expect to be protected by that waiver when the law mandates responsible behavior. That’s what is meant by the term “contracting out of law.”

Further, with respect to the subject of engineering, a surveyor cannot claim ignorance of structural engineering as a defense when he has contracted to conduct a survey and then something goes wrong.

He cannot claim ignorance about a subject which his profession as a marine surveyor should reasonably require him to be knowledgeable of, and expect any reasonable person to be sympathetic to his defense.

Nor can he claim that consideration of the safety of the vessel was not a part of his service.

In a very real sense, surveyors are like medical general practitioners; we know a little about everything but we are not experts on all things marine.

Our job is to be knowledgeable enough about vessels, machinery, systems and equipment to be able to competently evaluate the general condition. As with a G.P., when we spot trouble, we often have to refer the client to a specialist who has the expertise we lack.

And when we do run across situations which exceed our knowledge, it is in our own best interest, as well as that of the client, to inform him of our limitations.

The true professional surveyor, like the family doctor, is continually aware of this necessity. In the course of his work, he frequently advises his clients of his limitations, and then follows up by providing advice on how and where to seek qualified experts.

The apprentice or novice surveyor shouldn’t be fooled by claims to the contrary that we needn’t be well versed in basic engineering principles and not be ready to convey that knowledge to our clients.

When we come across inadequately designed structures or systems, as we often will, we need to be prepared to give a detailed description of the problem, including an assessment of what could happen if it is not corrected.

More than likely, we’ll be asked for advice on how to fix it. But that’s not all. We have to be sufficiently confident of our analysis and be prepared to defend our assessment against those who will surely challenge it.

And, when it comes to criticizing the property and products of others, not only is it embarrassing to be proven wrong, it can also be very costly if the surveyor gets sued by an owner, seller or manufacturer who claims a large loss is the result of the surveyor’s incompetence or negligence.

Think Like a Lawyer

It cannot be over stressed to both the neophyte and the seasoned surveyor the importance of considering everything he does with a view toward whether he can defend his work in court.

It’s a sad commentary on the state of affairs in this nation that it has to be this way, but the constant fear of being sued goes a long way toward ensuring that the surveyor does his job properly. If he doesn’t, the likelihood of his remaining in business for more than a few years is slim.

Let’s use an example to illustrate. Lets’ say that you were surveying a fast cruiser that has a cockpit deck that has a very low gunwale and no railing around it.

The gunwale height comes only up to your knee. As the vessel got underway, you noticed a pronounced tendency for anyone standing in the cockpit to be thrown backwards with the likelihood that they could easily lose balance and fall overboard.

Spicing up the situation a bit, let’s also say that you were aware that your client had two small children. The question is, would you report this situation in your survey report? An even better question is whether you would be willing to risk the consequences of not reporting it.

The answer to the question is painfully obvious. But it is equally obvious to anyone who has reviewed hundreds of survey reports that there are thousands of boats with problems like this that never, ever, get written up on survey.

Why not? The answer lies, I believe, in the belief by many practicing surveyors that it’s not within their purview to comment upon design safety.

Yet there are plenty of court decisions handed down that disprove this notion. A recent example is a case which involves a charter yacht that had a mooring cleat installed on a deck in an unprotected location in a high traffic area.

A woman walking on that deck hooked her foot under the cleat, fell and was seriously injured. Survey reports going back over ten years failed to mention the hazard.

Needless to say, in the blizzard of suit papers filed, the last surveyor was implicated.

The defendant, the owner of the vessel, alleged that the surveyor was negligent in failing to point this out and enjoined the surveyor. The court agreed with his argument.

This illustrates that surveyors can be, and occasionally are, held liable for failure to detect and report hazardous or faulty design.

This, for the reason that courts have held that a surveyor should be sufficiently knowledgeable on a subject on which he holds himself out as an expert. That holds true whether we’re talking basic structural integrity or minimum necessary railing height.

Another factor that bears on the surveyor liability question stems from the fact that the boating public is becoming increasingly ignorant of the vessels they own and operate, as well as the limited body of rules under which they are operated.

The situation is not unlike a recent judgment and multi-million dollar award against MacDonalds. In this case a woman put a cup of hot coffee purchased from the restaurant between her legs while she was driving her car.

Naturally, the coffee spilled and the woman was burned on a rather sensitive portion of her body. The jury reasoned, not that the woman was foolish to place the cup of hot coffee where she did, but that MacDonalds was at fault because their coffee was too hot!

Specious reasoning? Of course, but it does point out that surveyors need to be constantly on guard against opening themselves to such claims. Where the obvious possibility of damage, injury or loss exists, the law of the land insists that we, the experts, have a duty to advise our clients of such hazards.

From the surveyor’s standpoint, he needs to be prepared to comment upon any condition or situation that has a reasonable likelihood of causing damage, injury or loss to the vessel, its owner and passengers.

This includes economic as well as physical injury. In any instance where he fails to do that, he is exposing himself to a liability challenge.

I’ve intentionally tried to scare the hell out of you about lawsuits because you should be scared, or at least highly vigilant about protecting yourself.

If you protect yourself, it follows that you are doing an equally good job of protecting your client.

Ultimately, that’s what our business is all about. Much like a defense attorney, we protect ourselves by offering our clients vigorous advice and protection.