What is a boat sellers liability?

[dinwood]

Perhaps a question for the legal minded...
We've just bought a boat from a large and well known Dutch based brokerage and have had some problems post-completion. The most serious was that we discovered an open-ended pipe connected to an open sea-cock - only noticed when the bilges were awash crossing the channel back to the UK (this section of bilges not being drained to the area covered by the bigle pump!). The end of the pipe was hidden above the static water line of the boat so not a problem until healed.
This broker was also the owner, ie he was selling in the course of his business, and I understood consumer law makes him liable for defects, and in my view a boat that lets in tons of water when healed is defective! There is an arbitration clause in the contract, but I wonder whether consumer law should be simpler protection.
They - and the surveyor - are denying liability, yet we are facing significant costs to rectify a number of problems either not found on survey or not considered by the surveyor to be significant. What should we do?

 

[jhr]

Perhaps a question for the legal minded...
We've just bought a boat from a large and well known Dutch based brokerage and have had some problems post-completion. The most serious was that we discovered an open-ended pipe connected to an open sea-cock - only noticed when the bilges were awash crossing the channel back to the UK (this section of bilges not being drained to the area covered by the bigle pump!). The end of the pipe was hidden above the static water line of the boat so not a problem until healed.
This broker was also the owner, ie he was selling in the course of his business, and I understood consumer law makes him liable for defects, and in my view a boat that lets in tons of water when healed is defective! There is an arbitration clause in the contract, but I wonder whether consumer law should be simpler protection.
They - and the surveyor - are denying liability, yet we are facing significant costs to rectify a number of problems either not found on survey or not considered by the surveyor to be significant. What should we do?

I guess you can only take him and the surveyor to court and see what happens. You'll be trying to sue someone in another country, another language and under a foreign legal system although the much-derided EU means that there may be some legal commonality between UK and Dutch consumer laws. What it boils down to is this: "Do you feel lucky ..... well; do you"?

Not trying to be flippant, but I suspect you face an ocean of uncertainty. Also, I'm not sure that the two phrases "This broker was also the owner" and "ie he was selling in the course of his business" necessarily follow each other. If the Broker was just acting as an agent for someone else, I don't think he will have any liability for the condition of the boat.

If there is an arbitration clause in the contract, my instinct would be to try it first - from what people have said about Dutch Brokers on here in the past, I suspect that their ethical standards are higher than their UK counterparts, and this may mean that the process is more rigorous. Also, it may be that a court won't take a dispute seriously if you haven't tried to resolve it using an available, non-legal procedure before resorting to the law.

Good luck: I hope you can sort it out.

 

[Retired in Crete]

What does your Bill of Sale say? If my experience is anything to go by it will contain a clause such as "as seen, tried and tested".
The Sale of Goods Act states that purchases should be "fit for purpose" but this is in UK consumer law and may not apply in Holland. It could be argued that as it floats it is fit for purpose!

If you sold a boat would you consider yourself liable for defects that a survey did not find or the survey considered insignificant?

It often pays to try and see the other partys point of view.

Never mind! Another opinion will be along soon!

John

 

[electrosys]

I rather suspect that the 'burden of proof' will lie with yourself to demonstrate that the seacock and the pipe were indeed disconnected at the time of survey.

If the surveyor's report does not mention the defect, it is always possible that it was indeed correctly connected at the time of survey, and that it had been disconnected sometime afterwards - at least that would be an effective defence against any claim for damages or negligence.

Pity it wasn't something undeniably provable, like an area of rot, or grp delamination ...

 

[jonic]

Perhaps a question for the legal minded...
We've just bought a boat from a large and well known Dutch based brokerage and have had some problems post-completion. The most serious was that we discovered an open-ended pipe connected to an open sea-cock - only noticed when the bilges were awash crossing the channel back to the UK (this section of bilges not being drained to the area covered by the bigle pump!). The end of the pipe was hidden above the static water line of the boat so not a problem until healed.
This broker was also the owner, ie he was selling in the course of his business, and I understood consumer law makes him liable for defects, and in my view a boat that lets in tons of water when healed is defective! There is an arbitration clause in the contract, but I wonder whether consumer law should be simpler protection.
They - and the surveyor - are denying liability, yet we are facing significant costs to rectify a number of problems either not found on survey or not considered by the surveyor to be significant. What should we do?

Just to clarify, but can we assume this is a second hand boat, not a new one?

 

[prv]

If you sold a boat would you consider yourself liable for defects that a survey did not find or the survey considered insignificant?

No, but I would be selling as a private vendor so the law is caveat emptor. It's not clear exactly what the arrangement here was, but if it turns out to be that the sale was in the course of a business then the rules are potentially considerably different.

Pete

 

[longjohnsilver]

Perhaps a question for the legal minded...
We've just bought a boat from a large and well known Dutch based brokerage and have had some problems post-completion. The most serious was that we discovered an open-ended pipe connected to an open sea-cock - only noticed when the bilges were awash crossing the channel back to the UK (this section of bilges not being drained to the area covered by the bigle pump!). The end of the pipe was hidden above the static water line of the boat so not a problem until healed.
This broker was also the owner, ie he was selling in the course of his business, and I understood consumer law makes him liable for defects, and in my view a boat that lets in tons of water when healed is defective! There is an arbitration clause in the contract, but I wonder whether consumer law should be simpler protection.
They - and the surveyor - are denying liability, yet we are facing significant costs to rectify a number of problems either not found on survey or not considered by the surveyor to be significant. What should we do?

So you want an opinion on Dutch law, maybe this is the wrong forum?

As to the pipe letting in seawater, simply turn off the seacocks and plug it. As for the other issues only you can decide whether it's worth pursuing further. Possibly best to move on, fix the problems and enjoy the boating season.

 

[dinwood]

Thanks for all your thoughful replies. Just to pick up on a few points:-
- Yes, it was 2nd hand (in fact we part-exchanged, our old boat plus cash for this one).
- The broker owned the boat we bought - albeit only briefly, but it is his name on the bill sale transferring ownership to us. That is why I thought the law was more helpful to us than if we had bought of a private individual.
- The bill of sale (which is a British MCA form) only talks about transfer of ownership, not "as seen tried & tested" or the like. It specifically states that the sale is by a company.
- The pipe in question used to serve a heads which was converted to fresh water some time ago - there is no way anyone can claim it had become disconnected after the sale. It is a straightforward case of poor prepaprartion & checking - some might say negligent.
- I only mentioned the most clear cut issue in the original post. There are a number of others which are costing £'thousands to rectify. Some were mentioned in the survey but not deemed significant, others not spotted. They include: Maxprop blades loose, prop shaft free-play in aft bearing, splits in skeg found when boat prepped for anti-foul.

 

[Simondjuk]

You may not want to hear this, but in my opinion an unintentionally open seacock is not a defect, it's simply been left in the wrong position and the responsibility for closing it, if so required, lies with whoever takes the boat to sea.

I for one want to know where all the holes in the bottom of a boat are, what they're connected to and that a bung is available to shove into them should it be required before I go anywhere in any boat I'm not familiar with.

 

[jonic]

Thanks for all your thoughful replies. Just to pick up on a few points:-
- Yes, it was 2nd hand (in fact we part-exchanged, our old boat plus cash for this one).
- The broker owned the boat we bought - albeit only briefly, but it is his name on the bill sale transferring ownership to us. That is why I thought the law was more helpful to us than if we had bought of a private individual.
- The bill of sale (which is a British MCA form) only talks about transfer of ownership, not "as seen tried & tested" or the like. It specifically states that the sale is by a company.
- The pipe in question used to serve a heads which was converted to fresh water some time ago - there is no way anyone can claim it had become disconnected after the sale. It is a straightforward case of poor prepaprartion & checking - some might say negligent.
- I only mentioned the most clear cut issue in the original post. There are a number of others which are costing £'thousands to rectify. Some were mentioned in the survey but not deemed significant, others not spotted. They include: Maxprop blades loose, prop shaft free-play in aft bearing, splits in skeg found when boat prepped for anti-foul.

Ok, not conversant with Dutch law so a grey area re selling in the course of business, but if it was second hand it seems the surveyor is your first port of call. Unless the boat was not as described.

How old is the boat?

 

[Heckler]

You may not want to hear this, but in my opinion an unintentionally open seacock is not a defect, it's simply been left in the wrong position and the responsibility for closing it, if so required, lies with whoever takes the boat to sea.

I for one want to know where all the holes in the bottom of a boat are, what they're connected to and that a bung is available to shove into them should it be required before I go anywhere in any boat I'm not familiar with.

I agree with you, an open seacock, he sets off across the north sea without knowing where the pipe goes to? hmm.
Sounds more like the new owner opened the closed seacock which was left closed by the previous owner because they knew where it went.
A "loose" bearing, loosew blades in the prop? even someone not mechanically minded should have given the prop and shaft a shake when they were inspecting it before survey (assuming its on the hard) I would point out that even with a new rubber cutlass bearing in my Bene, there is a mm of play so is he perhaps being too picky?
Some whre I read that punters, once they have bought a boat, get over the rose coloured glasses feeling quickly, realise the enormity of what they have done and then get the ump with the seller!
Stu

 

[Retired in Crete]

It is a straightforward case of poor prepaprartion & checking - some might say negligent.

Would that be for the sale or for your trip across the North Sea?

You do not mention the make of boat or the purchase price but, as you bought it in Holland, I can only assume that it was cheaper than similar boats in the UK otherwise why buy in Holland. If the boat was a bargain, you cannot expect it to be perfect. What you expect with a second hand boat depends very much on what you paid for it.

Frankly to take a trip across the North Sea as the first voyage in a new to you second hand boat is, in my humble opinion, bordering on the irresponsible.
Please tell me that you at least spent a couple of days on local shakedown trips to ensure that everything worked as it should.

John

 

[hlb]

A number of questions to answer, though you have answered some.

Was the broker just acting for a private seller. Think you've answered that.

Who appointed the survey. If you, you may have some come back, though surveyors don't normally cover mechanical devices. A tap turned on or off, does not sound like a defect.

 

[Tranona]

Think you would have difficulty in proving either the owner or the surveyor negligent for the seacock being left open.

The other defects may be worth pursuing. Firstly one has to assume that you instructed the surveyor and your contract with him is covered by UK law. Tehn the issues would revolve around whether he reported concerns and you still went ahead and purchsed, or whether he did not report, but you could show that a competent surveyor should have found the faults. If the former, then tough - you knew about them and still bought, so your problem. If they were not reported on then you need to build your case, probably with the help of another surveyor to show your original surveyor was negligent. This can be quite a challenge, but not impossible if you are right. Clearly the sums of money involved have an influence on whether it is worth pursuing - even if you think you are right.

The Dutch broker is probably a member of HISWA - the Dutch equivalent of the BMF, and it may well be worth contacting them for advice, particularly if, in the event, your contracts are not covered by UK law.

 

[bbg]

First thing you need to do is determine the governing law of the contract. You say it was an MCA form. Does it specify British or Dutch law? If British law is not specified, I suspect it is Dutch law, in which case all the well-intentioned advice you have received on here is worth less than what you paid for it.

 

[A1Sailor]

Toley

The seller is responsible for being honest, signing the bill of sale and taking the purchasers money - in my view. The bit that matters is where it says:
"For myself/ourselves and for my/our heirs covenant with the Transferee(s) and his/their heirs and assigns that I/we have power so to transfer and that the Boat is free from encumbrances."
If you buy a heap of toley it's a heap of toley - but it isn't up to the seller to point this out to you!

A1

 

[sigmasailor]

Dutch law

Under Dutch law you, the buyer, has the obligation to carry out a proper inspection. On the other hand the seller has the obligation to bring forward any known defects. The question is did the seller know of the defects? Another question is: who instructed the surveyor? If it was you you can demonstrate the inspection; did the surveyor put any waivers or indemnification clauses in his report? If you cannot demonstrate a proper inspection (under your responsibility) then you are also to blame.
In the Netherlands if you buy something form a shop there is something called the consumentenrecht; this protects the buyer even without formal warrentee. The problem with that law is that you need to get it.
I do not read what the seller has done; what was his reaction when you told him?

 

[Ludd]

Be very careful about going to law----you might win,but if the court fails to award costs(this happens) you will have effectively lost big time.

 

[jonjo]

The Dutch have a two-tier boat sale system with no UK parallel so the advice you get here will be bordering on the useless.

Was the boat sold under the Hiswaa system? If so the prior owner is responsible for rectifying problems between offer and final sale. I do not know what the ongoing obligations is.

I suspect the broker offloaded a trade-in boat to you outside the Hiswaa system. You are on your own in fact I have little sympathy for someone he sets off on an offshore delivery of a secondhand boat without first familiarizing himself with the underwater holes in the hull and associated plumbing.

I say this as someone who purchased a 30 year old yacht in Holland and spent a few days going over the boat, before setting off I got the fuel tank drained and cleaned plus I replaced some frayed shrouds that even a top notch British surveyor, frequently recommended here, missed.

 

[Chrusty 1]

Perhaps a question for the legal minded...
We've just bought a boat from a large and well known Dutch based brokerage and have had some problems post-completion. The most serious was that we discovered an open-ended pipe connected to an open sea-cock - only noticed when the bilges were awash crossing the channel back to the UK (this section of bilges not being drained to the area covered by the bigle pump!). The end of the pipe was hidden above the static water line of the boat so not a problem until healed.
This broker was also the owner, ie he was selling in the course of his business, and I understood consumer law makes him liable for defects, and in my view a boat that lets in tons of water when healed is defective! There is an arbitration clause in the contract, but I wonder whether consumer law should be simpler protection.
They - and the surveyor - are denying liability, yet we are facing significant costs to rectify a number of problems either not found on survey or not considered by the surveyor to be significant. What should we do?

You could start by just accepting that it's the skipper's responsibility to make sure that in all respects his vessel is fit and ready to proceed to sea.

I am not trying to be rude to you, or make flippant comment, but if I were you, I would rectify the faults, have a good squint around for any that you have missed, then fix those. After that, get on with your life and enjoy your boat.

Never rely on others including surveyors, on matters regarding the safety or fitness of your vessel. If you don't feel competent to do the above, then start learning..............Fast.