To sue or not to sue ?

On a more practical level, it is not a typical part of a survey to fill and pump out the holding tank. They inspect visually, but if you want the tank tested, that be done by request.

The tank problems would likey not have been noticed in even a good survey.

Knowledge is the key. Do your research on that particular model and year boat. Know the particulars going in. Then hire a surveyor that also knows that boat. SS holding tank, to me, screams lack of knowledge. The only thing worse would be aluminum, which I have seen.

Ski in NC said:

The tank problems would likey not have been noticed in even a good survey.

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Most brokers have "disclaimers" and I don't like to see blanket negative statements about (all) brokers.

I have recently had more difficulty getting information from private sellers than brokers. I don't understand why FSBOs don't use a brokers listing, like Yachtworld, as a template. So simple.

Did you pay to fill the fuel tanks to see if they leaked?

Every contract I have seen has an as is ,where is clause you must not have read.

It's a good idea when going to survey to set up for all the tanks to be filled at your cost. More than one boat had leaky fuel fill hoses, crappy vents or leaky water or holding tank.

The holding tank if never used can be filled through the pump out fitting with fresh water, then pumped back out at a pump out facility. Macerator for overboard can then be tested too.

This will have to be requested by the buyer when the survey is being set up.

Isn't small claims limited to $3K?

what_barnacles said:

Isn't small claims limited to $3K?

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Small claims are filed in local courts and the local jurisdictions (usually states) legislate the max claim.

Canada has their own set of civil procedures and it sounds like they have higher limits.

Donsan said:

........Seems to me if I were a broker and knew of these issues before hand, I would not have signed up to deliver the boat.

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Exactly!!! You just beat me to it.

As for the surveyor, they are like auto mechanics, lots of 'em out there, but so many good ones. In a perfect world, it should not matter who hired the surveyor because the surveyor should be objective and not party biased.
However, we don't live in a perfect world.

As for any legal action, small claims court would be my only option. Hiring a lawyer would be a disaster. It wont take them long to run up a $7K bill whether you win or not.

As previously recommended, get a new surveyor to find out what else needs to be addressed. The best recommendation for a surveyor would be from the highest dollar Boat Broker in your area. When they sell boats for the big boys, they usually want the boat to be surveyed by a really good surveyor. Their reputation with future buyers is way more important than any one individual sale. usually the good surveyors don't charge any more than the dead heads.

Sometimes, for your own peace of mind, you just have to take the FIDO attitude. F**k It and Drive On. Then you will be able to enjoy your new boat.

kulas44 said:

Knowledge is the key. Do your research on that particular model and year boat. Know the particulars going in. Then hire a surveyor that also knows that boat. SS holding tank, to me, screams lack of knowledge. The only thing worse would be aluminum, which I have seen.

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Thanks, now you got me worried but I'm always willing to learn,
My previous sailboat had the original SS tank from 2007 with no issues.
I built this new one with 1/8" SS, all 4 sides were formed at bottom with the edges welded on inside and outside and c/w caulking over the inside welds and before the top was welded in place. ( yes ! I did put baffles too .. )
So please explain the downside of SS, hopefully I did not make a mistake with this.

Ex Sailor said:

Thanks, now you got me worried but I'm always willing to learn,
My previous sailboat had the original SS tank from 2007 with no issues.
I built this new one with 1/8" SS, all 4 sides were formed at bottom with the edges welded on inside and outside and c/w caulking over the inside welds and before the top was welded in place. ( yes ! I did put baffles too .. )
So please explain the downside of SS, hopefully I did not make a mistake with this.

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ooops ! should have been 1987

Small claims in Ontario $25,000 max.
Last time I sued someone (3yrs. ago), filing fee was $85.00
Province is currently considering increasing max claim to $100k

Going after the surveyor is a waste of time, not because of his"disclaimer" (which rarely stands up in court) but because he had no contract with you.
Never, never, never buy a boat on an existing survey !

Next time you buy a boat consider Preparing For Survey .... see item #10

In 2010, Ontairo raised its small claims jurisdiction to $25000 (Canadian). In BC, by 2010 we were trying to raise the limit from$25k to $100k, but so far, it hasn't happened.

koliver said:

In 2010, Ontairo raised its small claims jurisdiction to $25000 (Canadian). In BC, by 2010 we were trying to raise the limit from$25k to $100k, but so far, it hasn't happened.

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Yes, sm claims limits vary by jurisdiction. I'm a court administrator in South Dakota, $12,000 here. Well, to be precise, you can sue for a million dollars in small claims but can only recover $12k here.

You'd have a very difficult time overcoming the "as is...where is" contract. To do so, you would have to prove that it was fraudulently represented to you. You'd have to show where, in writing, they told you the holding tank was working. You'd have to prove they knew the tank was not the size represented in writing. The burden of proof is very high. I can't imagine it would be worth the time and effort unless the repairs are far more than I think they are. You state in your original post several times "I believe." Well, what you believe doesn't matter in court, it's what you can prove.

As stated above, you have no claim against the surveyor. As to the broker, had he known the holding tank issues, do you really think he would have filled it on the way there? I'm thinking it was a bad shock to him as well.

I've never sued personally and never been sued and hope to keep it that way. In business I pretty much avoided litigation.

Suing is often an act of trying to shift blame away from oneself to someone else. In this case, of trying to say the fact you have these problems is because someone committed fraud against you. That doesn't help you in future situations. Understanding what you did wrong, thinking of how you could have avoided the problems and how you can better protect yourself next time is far more productive.

Then also ask yourself this question. Had you known what you know now would you have still bought the boat? I'm hoping the answer is "yes." Get it repaired and enjoy.

Peggy has been on here regularly the last few weeks, ask her about a stainless holding tank?

Xsbank said:

Peggy has been on here regularly the last few weeks, ask her about a stainless holding tank?

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I had 40yo SS holding tanks on my old boat and they were as good as new please tell more !

Stainless done correctly isn't a problem...but sure can be when done wrong.

Bacchus said:

Ex...

I can understand the frustration and find it hard to believe owner was not aware of at least some of the issues...
I you have the time and access to small claims court in Canada what's to lose other than some of your time (in NY small claims no lawyer is req'd so you present your case)

You may find that the threat of the case or the inconvenience to the owner / broker will convince them to try to settle??

Worth checking out if your situation allows the time.
If you go ahead - May be worth some "investigating" on your own - how often / long the owner was aboard - was the marine / boat yard they dealt with aware of any issues - .

I had a few similar issues when I bought our current boat but was fortunate to catch most in my own (3 day) inspection and negotiated w/ owner for $.

Good luck - let us know what you decide and how it ends up

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IMHO - The purchaser's self-inspection is the most important one (in agreement with the bold sentence above). Other inspections should also be made by professional marine and mechanical inspectors. Both heads in our Tollycraft needed improvements. I got reduction in price that enabled me to have marine sanitation expert perform all repairs/improvements.

I practice and believe in self-inspections!

For starters, the same size poly tank would cost about 10% as much as a custom built SS tank. A good purpose built poly waste tank will have no issues,,ever. Theres a lot of ifs and expense with metal. Doesnt make cents.

My advice is, if those are the ONLY problems, thus far and you love the boat, - enjoy it and move on. If there are other significant issues then you may have reason to pursue other options. When I bought mine there were after the purchase items that came up and I also compromised on issues that the seller would not acquiesce to at sale because I wanted this boat. I'm glad that I did. Seventeen years of joy when I am aboard have made me so glad that I have her and those experiences aboard her that I can not put a price on. Boats can be (are) complicated and even emotional. Don't know if this helps; but, it is just my opinion.

Glen

Lots of good advice to push on and I agree. The first mistake was not hiring a surveyor your self and an engine surveyor. Relying on the past survey may have seem like you were saving a few bucks, but as the lesson is learned, it cost you.


Let's assume you do go to court and you are holding the broker responsible. What is your PROOF that he actually knew about it at the time of the sale of these issues?


Press on and chalk it up as they got me, and get your boat in shape for the up coming cruise season.

I suspect your seller was tricky. Who would suspect and test for a cracked sewage tank in the absence of some indicator of problems? Not you, and not a lot of others.
Absence of privity of contract between you and the surveyor is a big problem,though there are cases here based on cases in the UK(well there were before I retired) if A as an expert gives gratuitous advice to B knowing B will rely on it, A has a problem.
I suspect recovery is all too difficult.

As far as the holding tank problem I bought a 24' express cruiser 16 years ago. It had the poly holding tank mounted where it was clearly visible while checking anything on the engine, the tank had never been used in 12 years by the previous owners. I can't believe a owner wouldn't repair that problem if they were aware of it.


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I would say to just move on... We, of course, had a complete survey done on our new boat and some pretty large (sinking) items were missed... and I even suspect the PO knew about a couple of them. Still, while I hired the best surveyor in the area, I also understand that boats are what boats are. I don't really expect a complete stranger to step on an unknown vessel and catch everything, and in addition, be liable for finding it all. Nobody would ever do it for a living if that was the case. They get us as far as they can. It's up to us to take the next step. I have spent many thousands on our boat already and we have only had it for six months. It's a bummer, but I am happy everything is fixed earlier and in the manner *I* chose.

Intent of deception is extremely hard to prove. Hate it for you. But it's all good now!

I'm on my phone so I can't see the signatures, but if one party is Canadian and one party is American and the deal was done in the US, the US party could probably have the case kicked to federal court and the The Hague Convention (not sure if applicable between US and Canada??) may get involved for service issues and all sorts of other things. If OP is serious, there are a ton of legal issues and a local attorney should absolutely be consulted. My personal opinion if I was in the OPs shoes would be to hope karma gets the seller. You probably don't have standing against the surveyor, the "as is" language creates quite a hurdle, and if the defendant chose to be difficult, legal fees would far exceed damages before a court even heard arguments... At least that's my guess. Consult a local attorney if you're serious!

That said, a strongly worded demand letter to both the seller and the broker might be very worthwhile. The potential ROI is much higher in my opinion. Consult a local attorney.

Again, is there PROOF the broker was aware of the true condition at the time of the sale/signing of the purchase documents?

Bacchus said:

Interesting and important point...

Does "As-Is" absolve seller / broker of need to divulge known defects?

I'm no lawyer... any legal beagles out there that can confirm?

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May be different in Ca.

It's been a few years, but IIRC the phrase is: Disclosure. A seller does not have to educate a buyer of the defects of a purchase. Caveat Emptor. However, if the seller is asked a direct question and lies, then it is actionable.


There is a difference between a buyer being uneducated and a seller being deceptive. Being uneducated is the buyers fault. Being deceptive is legally chargeable.

HOWEVER, when asked about a specific item, if the seller misleads the buyer about a specific item, then that can be brought for damages.

In this case, if the buyer specifically asked about the batteries, or the holding tank, and it was claimed all was fine, then they have a claim. But if nothing specific was asked...... sorry charlie.

The issue is: how specific was the buyer asking questions of the seller? Or did the buyer only discuss this with the surveyor? The surveyor can't be held accountable for what he doesn't know about. And if you look at your survey they are pretty well covered in 'legalese' about how they do 'non intrusive, non destructive' testing to make their decision, all while the boat is dry, ashore, inoperable, etc etc etc.

As others mentioned, Only two items are bad? That's a pretty good buy if you ask me.

cappy208 said:

Disclosure. A seller does not have to educate a buyer of the defects of a purchase. Caveat Emptor.

There is a difference between a buyer being uneducated and a seller being deceptive.
Being uneducated is the buyers fault. Being deceptive is legally chargeable.

As others mentioned, Only two items are bad? That's a pretty good buy if you ask me.

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Understand - and agree

A LOT depends on the details of the conversation and whether anyone else was party to them to to substantiate any claim against the seller.

My prior comments were certainly in the minority and I'd rethink them based on the (unknown) facts / situation before proceeding w/ any suit.

To be blunt - I think its time to build a bridge - and get over it. If you don`t accept what the majority is saying - then its just going to eat away at your enjoyment of owning and using the boat.

The issue of stainless tanks has been discussed at great length on other threads and the consensus was - plastic good, stainless bad - sorry

So what if it was tested perfect on the survey and broke the day after you took ownership? Would you feel better? Of course not. It stings, its fixable and time to move on. Trust me, its a boat. There will be more things to fix that you have not found yet.
FWIW, my list of pre-existing things to fix left from previous owners was pretty long. If it will make you feel any better, I'll PM you my work list.