From disspointing to infuriating and beyond

[MapisM]

I am not sure if ITA is your mother tongue or not. I do know that ITA is the mother tongue of MapisM. Based on this, I would prefer to rely on his translation.

I believe that also WorstCase speaks IT as well as I do, P.
But as I said, afaik the heart of the matter is not semantic anymore - if it ever has been.
Alas, as of today there's not much we can do for Jez by debating that further here, I reckon.

 

[WorstCase]

I am not sure if ITA is your mother tongue or not. I do know that ITA is the mother tongue of MapisM. Based on this, I would prefer to rely on his translation.

I'm so ITA it's not even funny.

 

[jimmy_the_builder]

I'm so ITA it's not even funny.

I know this is a serious thread, but this did make me laugh. Respect to worstcase.

 

[MapisM]

the party that HAS TO release the money is not

Bingo. Articolo quinto, remember?

Then again, I'm afraid you have a wrong understanding of what qualify as a fraud or a theft.
It doesn't matter one iota whether you and I, or the whole forum for that matter, based on the circumstances, agree that the deposit should be refunded.
It still remains a matter of contractual dispute, and couldn't be qualified as a fraud even if eventually Jez would win such dispute.

Otoh, I agree that a full flagged legal action can surpass the arbitration court, but that's neither here nor there in this context, and might be relevant only in the event of a negative decision of the arbitration court.

 

[Pinnacle]

I'm so ITA it's not even funny.

Apologies - I wasn't aware ITA was your mother tongue.

 

[WorstCase]

Bingo. Articolo quinto, remember?

Then again, I'm afraid you have a wrong understanding of what qualify as a fraud or a theft.
It doesn't matter one iota whether you and I, or the whole forum for that matter, based on the circumstances, agree that the deposit should be refunded.
It still remains a matter of contractual dispute, and couldn't be qualified as a fraud even if eventually Jez would win such dispute.

Otoh, I agree that a full flagged legal action can surpass the arbitration court, but that's neither here nor there in this context, and might be relevant only in the event of a negative decision of the arbitration court.

Just for the sake of discussion... let's assume that the survey report is clearly negative, that there is more to it than just some off-the charts moisture readings, and lets assume that still the seller doesn't release the deposit (disagreement).
Under these hypothetical circumstances the seller is in the wrong but without some pressure or a court order there is no way to force him to release the money. But what if the difference in wording on this particular exact single point between Italian and English in the contract was done with the intention of appropriating the deposit amount and NEVER release it (scam)? Saying this officially is done by going and filing a report to the police.

I hope the difference between "scam" and "disagreement" is clear to all.

 

[Lloydroberts]

Jeez, two Italians both as eloquent as each other debating in perfect English......wish I'd taken more notice at school.

 

[MapisM]

I would go as far as saying that the difference in wording on this particular exact single point between Italian and English in the contract configures a scam with the intention of appropriating the deposit amount and NEVER release it.

Well, I guess you might argue that the lack of accuracy in specifying the acceptable reasons for a rejection was a sort of fraud conspiracy, but I can only think of two words for anyone wishing to go that route: good luck.
That has nothing to see with the language, though: the lack of specific reasons is obvious both in IT and EN.
The point is, that's easier to say in hindsight. I did have a look at that MOA, as well as Jez lawyer did, but neither of us envisaged this situation.

 

[WorstCase]

Well, I guess you might argue that the lack of accuracy in specifying the acceptable reasons for a rejection was a sort of fraud conspiracy, but I can only think of two words for anyone wishing to go that route: good luck.
That has nothing to see with the language, though: the lack of specific reasons is obvious both in IT and EN.
The point is, that's easier to say in hindsight. I did have a look at that MOA, as well as Jez lawyer did, but neither of us envisaged this situation.

What I meant is that the argument could be made that this was a scam. To make that argument officially one would need to file a report. In the hypothetical situation described above in which the seller REFUSES to refund the deposit no matter how negative a report.
I know OP has claimed there's more negative findings etc. HYPOTHETICALLY the seller could still refuse to return the deposit. In which case someone might argue the above. Police sometimes brings the best out of people with little effort.

BTW, the contract mentions clearly that the amount will be kept by the broker ("tenuto" and not simply received "ricevuto"). Again this configures fraudulent behavior on the part of the broker, as per contract the money is with him, the seller is never mentioned as receiver of the deposit. If this was done on purpose to induce some sort of confidence in the buyer that his money would be safeguarded it would be fraud.

My prediction is the seller will not take any action (ie refund the money) REGARDLESS of any findings as there is no interest in doing so and potentially no consequence since OP is reluctant to take action. I hope I will be proven wrong by the BROKER (contractually he's responsible of the deposit)

 

[jimmy_the_builder]

I'm waiting on a report from the engineer who took oil samples.

I've had a verbal report but I'd rather wait until I've seen the full report and sent it to the broker before posting details on here. Hopefully I'll be able to update on Monday evening

So what's the outcome with all of this then WL? From your other threads you're boat shopping in SoF now, so is this one all tied off?

 

[Whitelighter]

As far as I am concerned it is. Still not had a response from the engine survey which was damning and I'm not hopeful I will get my deposit back

 

[Whitelighter]

For those who are still hanging on I thought I'd update with the current state of play.

So there has been much discussion as to whether the moist hull is or isn't a problem. In the sense of the boat still being a boat then I tend to agree that perhaps it isn't so much of a physical issue rather than a perception issue, especially as regards to value. The broker certainly falls into the 'not a problem' camp.

Then there is the contract, checked my a marine lawyer in the UK and a native Italian both of whom saw no major flaws. JFM disagrees here and frankly he knows way more than I so I have to put some store in what he says.

There is now a third factor. While in Italy I commissioned a full mechanical survey from an independent marine engineer. This consisted of a full at sea test of the engines, a visual inspection of the running gear ashore and an inspection and test of the generator and associated systems. It also included taking oil samples for lab analysis from both CAT3126 engines, their respective ZF gearboxes and the generator.

I have attached the report and oil results below, with the boat and engineers details removed.

Here is a link to the survey report Dropbox link

and the oil sheets:

Generator

Port Engine

Port Gearbox

Starbord Engine

Starboard Gearbox


In spite of all of the above the broker is refusing to accept there is a problem with the boat.
He has stated that he will only consider the results if he takes oil again and gets his own local tests done. Now call me cynical, but im not sure they will run the engines up since the boat is out of the water so they will be taking un-mixed samples cold from the top of the engines. Assuming they actually take the oil from this boat at all.

He is also claiming that since we had the boat running and it works there is no problem and oil testing cannot be relied upon in his opinion so these results should be ignored.

His last email of three was to say the court can decide who is right.

I have to confess to being a bit stuck now.

 

[Andrew M]

Have been watching this since it started, have to say it is a sad story and a real shame for you to find yourself in this position. Can't offer any advice or help, it must be very gutting to be stuck without much in the way of recourse open to you. I guess it could (possibly) have happened on lots of boats but the fact it isn't here must make it all seem much harder to progress with. Hope you get something resolved from the current position.

 

[Deleted User YDKXO]

FWIW I once walked away from a boat in France with Cat engines which an oil analysis had shown had excessive contamination in the oil. In my case, I spoke to a Cat dealer, got a quote for rebuilding the engines and reduced my offer to buy the boat accordingly. The seller refused to accept my reduced offer and in my case, the broker refunded my deposit. There is no question in my book that a failed oil analysis for one or both engines constitutes a material fault and is more than enough reason to walk away from a boat and demand return of your deposit

Having said that, in your case, the broker might ask a couple of questions. How did the company that carried out the oil analysis know the number of engine/generator hours since the last oil change because AFAIK the level of contamination of any element in the oil can only be judged in relation to the number of hours that the oil has worked. In the case of the generator it wouldn't matter because it seems clear that the generator is knackered but for the engines, it may be a fair question. As I understand it nobody seems to know the hours information so the broker might well be in his right to ask on what basis the contaminants were judged excessive? Second is this oil analysis company officially recognised by Cat or can they demonstrate previous experience of testing similar engines?

Having said that, IMHO you have a pretty clear cut reason to walk away and the broker is bullshitting you when he threatens legal action. In fact it is you who should be threatening legal action for return of your deposit

 

[Whitelighter]

The owner claims everything was serviced just a few hours ago.

Filters did look fresh ish.

Don't know the provenance of the oil company.

 

[tico]

Same Oil analysis co did the analysis and reports when I bought my Targa..... Si levels were 11/13 on the 2 engines and judged OK.

 

[WorstCase]

My prediction is the seller will not take any action (ie refund the money) REGARDLESS of any findings as there is no interest in doing so and potentially no consequence since OP is reluctant to take action. I hope I will be proven wrong by the BROKER (contractually he's responsible of the deposit)

Not nice to quote myself but what did I tell ya

I see no reason why you should not take action. If costs and headache is what is worring you, do things that are free first: 1. treat thieves as such and tell the broker you want your money back yesterday and that he better move if he cares staying in business 2. GO TO THE POLICE and report him for fraud and send him a copy. He's not going to expect this from a brit. 4300 EUR are not worth half an hour? Stop thinking contract and tests, they don't care about either, they care about your euros.

I noticed your post asking for small claim court. The arbitration is a good alternative. But I believe the strategy is to rely on you being reluctant to get involved in such a process in a foreign country and hope you simply disappear. As much as I would NOT recommend starting a civil case in Italy over these aounts, I would say there are steps worth taking that have little to no cost attached that might resolve your situation, but it does require a little bit of a different approach.

On another note I feel totally outraged by the behavior of these people you encountered who happen to share my nationality. It is a shame.

 

[Deleted User YDKXO]

The owner claims everything was serviced just a few hours ago.

Then he is very likely lying. I have been told that it takes at least 30hrs running for an analysis to show a sample which is representative of the condition of the engine so if a high level of any contaminant is showing after only a few hours running, then the oils weren't changed. It is possible that he sought to save a few pennies by just screwing some new filters on

 

[Whitelighter]

Then he is very likely lying. I have been told that it takes at least 30hrs running for an analysis to show a sample which is representative of the condition of the engine so if a high level of any contaminant is showing after only a few hours running, then the oils weren't changed. It is possible that he sought to save a few pennies by just screwing some new filters on

That is also my conclusion.

The gearbox reports are worrying even if the running is multiple hours

 

[Whitelighter]

Not nice to quote myself but what did I tell ya

My UK lawyer has an italian on the case.