To sue or not to sue ?

Don’t know if it’s worth pursuing the former owners, the surveyor and / or the broker that sold us the boat for issues that were not disclosed and I believe deliberately hidden from us prior to purchase… Has anyone been successful in doing it after the sale ?

We purchased our boat based on a recent survey, sea trial and an inspection by a Diesel mech. As such, there was no visible reason not to go ahead with the deal. After the sale, the broker offered to deliver / float the boat to our marina ( approx 200 miles and 1 week ) and that’s when the issues showed up.
a) Main Bilge Pump was not working ( admittedly a minor issue )
b) One of the twin 8D batteries had a “ dead short “ in it. ( I had to replace them as a pair )
c) The glass Holding Tank ( buried under the Gen. and advertised as a 50 Gal. but in fact was only a 25 Gal. .. ) had a major leak / split. Specifically: when we viewed the boat prior to purchase, we were told that the owners just launched and never used the boat. The bilges were bone dry and there were NO smells whatsoever. This Holding Tank got filled I assume, during the broker’s one week delivery to us and let me tell you …. When they arrived, they just wanted off this boat and were gone within less than one hr. and shortly after, we discovered waste water in the bilges.

Long and short of this, I got quotes for the needed repairs and contacted the owners & broker. I disclosed the costs of repairs and was hoping that in interest of good will, we could split these costs 50 / 50, as I truly believe that BOTH of them knew of this pre existing condition prior to sale, to which I was told, “ boat was bough as is “ ! I did all the repairs, replaced Both batteries, and replaced the holding tank with Stainless 50 Gal.

Of Note: The old glass tank, did NOT have a pick up tube on the pump out elbow ( it was not even inside the tank ! ) so it could never be pumped out properly. I believe the owners may have been dumping overboard OR, not using the heads at all ! well …. until the broker used them.

Just venting here ……… as I’m really pisssed ! and am thinking of suing in small Court ..

You don't say how much the repairs cost. If you got a certified surveyor then I would question him. You got a survey right? It should show on the survey all defects. The owner may not have know of the issues and the broker has no responsibility to disclose defects that he's not aware of, hence the reason for a survey.

You may sue, but is it worth the effort?

It doesn't seem that the cost of repairs will be worth the expense, time, and agony of suing and maybe recouping something. In my experience there are usually things you find out about after purchase.

Don't know if this is the case in your situation or not, but a survey done for insurance purposes (commissioned by the previous owner) and one commissioned for a prospective purchaser are completely different things, even if done by the same surveyor.

Hoping you have many wonderful memories in the coming years to wash away this experience!

MurrayM said:

Don't know if this is the case in your situation or not, but a survey done for insurance purposes (commissioned by the previous owner) and one commissioned for a prospective purchaser are completely different things, even if done by the same surveyor.

Hoping you have many wonderful memories in the coming years to wash away this experience!

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Murray,
I agree re: the surveys. This survey was done by a credible firm ( I checked them out ) and I don't believe that a surveyor would pick up on a dead battery ( they both are as 1 bank ) and there is no way that he would pick up on an empty holding tank. Oh ! turns out the broker and the seller were friends. YES ! we did wash away.... 2 day's worth LOL Tx. M.

200 miles and a one week delivery ??? That would have raised questions in my mind to start with. Maybe a day and a half.

Ex Sailor said:

Murray,
I agree re: the surveys. This survey was done by a credible firm ( I checked them out ) and I don't believe that a surveyor would pick up on a dead battery ( they both are as 1 bank ) and there is no way that he would pick up on an empty holding tank. Oh ! turns out the broker and the seller were friends. YES ! we did wash away.... 2 day's worth LOL Tx. M.

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I don't think addressed what Murray said. Did you hire the surveyor or did you accept a recent existing survey?

Also, what does your contract to buy say about the purchase being "as is"?

Many brokers and sellers are friends. Sometimes brokers and buyers are friends too.

No Mast said:

It doesn't seem that the cost of repairs will be worth the expense, time, and agony of suing and maybe recouping something. In my experience there are usually things you find out about after purchase.

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I hear ya .... The seller is 200 km away so that's where I would have to file and the small Court fee would be 100 - 150, I think. But ! The tank job alone was almost 7 K because the Gen. and some parts of the engine had to come out and I built my own S/S tank.

Ex Sailor said:

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Just venting here ……… as I’m really pisssed ! and am thinking of suing in small Court .. [/FONT]

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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

I have zero experience suing people and a bit of experience on the receiving end in the line of business. Review your sales agreement. I'm pretty sure the language "as-is" will be somewhere in there. This is why it is a big deal to survey and sea trial. Sorry to hear of your grief.

Greetings,
Me. ES. Probably not worth the effort in spite of what you may get in return. I would just put it down to yet another occasion of having to deal with asshats (being VERY polite here, given the family nature of TF). There does seem to be an epidemic of THAT going around and I'm sure we've all had our share of being screwed around. MY take on it? Karma's a bitch.

Donsan said:

I don't think addressed what Murray said. Did you hire the surveyor or did you accept a recent existing survey?

Also, what does your contract to buy say about the purchase being "as is"?

Many brokers and sellers are friends. Sometimes brokers and buyers are friends too.

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Donsan, All agreements are: " as is - where is " Survey was an existing survey by a credible firm and short of lifting the Gen out to inspect OR filling the waste tank full or disconnecting and testing each battery would a surveyor pick up on this ..... I really think that the owner & broker knew this before hand and just jammed me ....

RT Firefly said:

Greetings,
Me. ES. Probably not worth the effort in spite of what you may get in return. I would just put it down to yet another occasion of having to deal with asshats (being VERY polite here, given the family nature of TF). There does seem to be an epidemic of THAT going around and I'm sure we've all had our share of being screwed around. MY take on it? Karma's a bitch.

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Tx RTF, I am beginning to think the same way that there is no honor in our fraternity. Case in point: on my previous sailboat while anchored at an anchorage here in Ontario, I was rammed by a guy from Millwaukee and neither he or his Insurance co. would pay up. I had to file a suit in ( thankfully ) my jurisdiction to get the $ back ......

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?

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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Thank you, I'm seeing this the way you do, I have time and resources and I will formally file shortly ... I think ? .. Sadly, there was NO explanation, NO communication from either of them, they just fluffed me off hoping I would go away.

Ex Sailor said:

Survey was an existing survey by a credible firm...

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Our first boat buying experience showed us why it's a good idea for one to hire their own surveyor. The person doing the survey was an old friend of the owner of the boat, but he was hired by us, and took his job seriously.

It was a small 26' pocket trawler so he chatted away about what he was finding as he made notes for his written report. When he was done, he asked, "Is there anything else I can do for you?" the owner of the boat said, "Yes...you can get off my boat!"

Also, on our current boat, the insurance survey skipped over some pretty major issues that I'm sure would be on a survey commissioned by a prospective buyer.

Actually...that's a pretty impressively short list for things wrong with a boat found even after a good survey.


I can't say for sure...but your boat sounded just like mine in terms of the holding tank. While mine wasn't cracked it was non-functioning in the way it was plumbed and maintained.


$7000 to replace a holding tank? Which was fiberglass and had a crack that couldn't be fixed? If you sue for that one..better be small claims where others don't really know boats.


I think you are headed for more trouble than it's worth in court.


Batteries are all but a toss and replace upon purchase anyhow because you don't ever really know their history other than purchase date maybe.

ulysses said:

200 miles and a one week delivery ??? That would have raised questions in my mind to start with. Maybe a day and a half.

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I hear ya ! but in all fairness, they had to bring the boat through our Trent Canal system, I think there are about 40 locks in this trip. Plenty of time to fill the holding tank ... lol

Ex Sailor said:

All agreements are: " as is - where is " Survey was an existing survey by a credible firm and short of lifting the Gen out to inspect OR filling the waste tank full or disconnecting and testing each battery would a surveyor pick up on this ..... I really think that the owner & broker knew this before hand and just jammed me ....

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I think you should have hired your own surveyor. The existing survey was probably performed for the owner for insurance purposes. As Murray has suggested, the effort that goes into insurance surveys are to protect the insurance company from claims. Doubt if boat owners insurance covers leaking holding tanks or dead batteries but even an insurance survey would address the bilge pump if it didn't work at the time. For my 2 cents, it would behoove you to hire a good surveyor now and find out if there are other not previously identified issues. You might want to contact boatpoker, a TF member Ontario.

When you go to court, there is a requirement of proof. Nothing so far other your opinion shows any evidence that would convince an independent third party such as a judge or arbitrator that they tried to deceive you....even in small claims court where standards of proof are fairly lenient. They may have tried to deceive you but you will need to prove it in court.

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.

Ex...

Quick search turns up useful links.

Ontario Small Claims Court - How To Guide

Canada OCA Common Consumer Questions

Excerpt from above

"As Is" Purchases

A product that's sold "as is" doesn't have a warranty. You are buying what you see, whatever its condition.

Used goods are generally sold "as is." Check these goods carefully to make sure that they will work and don't reuire potentially costly repairs. "As is" statements may cancel any implied warranty given by provincial or territorial legislation. However, if the salesperson knew the product was defective when he or she sold it to you, you may have some rights under your jurisdiction's consumer protection legislation.

Private Sales

A private sale is between individuals, not between a consumer and a business. Most consumer legislation does not cover private sales. If something goes wrong, your consumer affairs office may not be able to get involved. You will need to deal with the seller. If the seller isn't willing, your next step is court action. If the amount of money you want from the seller is under the limit established by your province or territory for small claims court, you could file a claim with it. Check with your provincial or territorial consumer affairs office for more information.

I certainly agree one must hire their own surveyor after obtaining independent references from other boat buyers. In this case, out of curiosity, how old was the "existing" survey? Did you review it with the surveyor during a walkthrough of the boat?

I asked about how old the survey was for a reason: Let me remind you of one of the great truisms of boating "Even as the boat sits there in its slip, things are breaking". Plus, there was a one week 200km journey as well.

I'm with Ps on this one, I think you got lucky (hopefully) if this is the worst of things. IMO boat brokers are mostly used car salesmen on steroids. It will be of no consolation to you when you later find other even more major and expensive things that were "missed". I dont think litigation will get you anything, but the threat of it may.

Let it go. If the broker knew the holding tank was cracked he would not have used it. I'll bet the POs never used it. Canada laws are nearly non-existent re: waste discharge (as compared to the USA). I knew a guy with a gorgeous boat, bought new. He bragged after 5 years that no one had ever done a "number two" on his boat. ?

I'm concerned about the stainless holding tank...

As a Canadian Lawyer, well familiar with Small Claims Court:

As Is means that you have absolutely no recourse against the seller. It is totally up to you to do all pertinent inspections and negotiate reductions in the price for anything you find that is not to your liking.
Getting a survey involves signing a contract with a surveyor. In that contract you will find language that limits the liability of the surveyor, usually to not more than a refund of his/her fee.
Going into Court with a grievance worth only $7k (to the US reader, that is more like $5k US these days) is a total waste of your time, even if you had a winning case, which, of course you don't.

Put your energy into other things, you will live longer.

I say don't waste your time and money in court. I bought a boat advertised with AIS. The independent surveyor stated it had AIS, I guess relying on the listing info. Shortly after closing I determined there was no AIS. I would have been happy settling for a few hundred dollars, but the broker stopped answering my calls. Neither the broker or surveyor showed up in small claims. The judge ruled against me, saying I should have checked it out myself. So much for surveys. The broker has since gone out of business. I bought an AIS and moved on.

A couple things come to my mind on this. First, in my experience, a survey usually will have as many pages devoted to how the surveyor cannot be held responsible for what he submits as pages that explain what he has found about a boat. They pretty well cover their butts.

Secondly, if the broker delivered the boat, the fact that he used the toilet system suggests that he did not know of the problem. Had he known, of course, he would have delivered the boat clean and let you fill the tank.

Finally, small claims court around here have a limit of $2,500 on the amount an individual is trying to recover.

This post once again points out the importance of a good current survey and the absolute necessity of checking out each and every system. Even though near new, when we got our current vessel, systems checks beyond what a surveyor would do revealed several issues. We caught about 90% of them.

I too am curious about the SS holding tank, not all SS is created equal nor is sewage a good application.

kulas44 said:

IMO boat brokers are mostly used car salesmen on steroids.

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No. It is much more akin to Real Estate sales...with the possibility of drowning.

koliver said:

As a Canadian Lawyer, well familiar with Small Claims Court: As Is means that you have absolutely no recourse against the seller. Put your energy into other things, you will live longer.

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Great advice. My experience with small claims has proven to mean "settlement conference" after a couple of years, which is mostly a time and resources waster.