I recently purchased a used boat and was told by the seller and broker that it had a new engine with only 42 hours on it. I looked at the boat and I agreed to purchase it pending a marine survey which I would pay for. The very first time I used it I broke down and had to be towed. My mechanic told me there was a car engine in the boat. The marine surveyor I hired failed to tell me that the boat had a car engine. In fact he specifically stated in the report the there was a Mercruiser in the boat which is a standard brand marine engine. i relied on his expertise to finalize the purchase and take ownership. The boat has now been in the shop since I got it.
The short answer is yes you can sue the surveyor, however the the first question will be whether that person is collectible or not. In my experience most surveyors are not insured and work independently or on a contract basis. You will have to prove that the surveyor's inspection and subsequent report fell below the industry standard for that type of surveyor. For this you will need to hire another local surveyor as an expert to prove your case. This can be costly and these trades people mostly know one another. Last, I'm unsure what you mean by car engine. All mercruiser engines use GM blocks and heads and then have mercruiser aftermarket parts like distributors, starters, exhaust etc... Depending upon what application was used this may very difficult to spot and the surveyor may not have been negligent. My advice would be to have another surveyor look at the boat and let you know wheater the first surveyor missed important issues.
Robert Louis GardanaAdmiralty / Maritime AttorneyMiami, FL ·
Due to the salty nature of your question, I am going to change it to maritime. This is not a case involving admiralty jurisdiction, but because maritime attorneys deal with marine surveyors frequently, your matter should be reviewed by a maritime attorney in your area.
First, it is important to understand that what is written in the marine survey, not what the marine surveyor "told" you governs your situation. What is written in the survey will control the result. For example, if the survey indicates that the engine was a car engine or not inspected and is excluded from the survey, then it is unlikely that you have a claim. Marine surveys are filled with disclaimers of all types and a knowledgeable maritime attorney may be required to review and decipher if the engine was even inspected and/or excluded from the survey. Sometimes, the Seller's Broker picks the marine surveyor as opposed to an independent marine surveyor, which presents both ethical issues and a conflict of interest as the effort is to get the deal done.
Second, in fact, a boat buyer should always have the vessel's engines inspected by a marine engine surveying company and marine engine surveyor will also send an oil sample to a laboratory for analysis of the metals content in the oil. If you would have had this performed, you may not be posting this question, as there are many different parts and assembly differences applicable to a car versus a boat engine.
A car engine is built to cruise on the highway at 70 mph turning 1800 rpm, whereas a boat may cruise at 4000 RPMs and while engine may appear the same, the tolerances are very different. A car engine could easily burn a valve in few hours at 4000 RPMs. Further, a marine engine surveyor will send an oil sample to a laboratory to determine whether the oil contains high levels of metals which will in turn identify to the engine surveyor that there is indeed a problem hidden within the engine, but the marine engine surveyor will perform many different tests, including compression and other tests and inspections of the transmissions, gauges, etc., to determine if there are issues.
Now, this is not to say that your marine surveyor was not negligent. In fact, at times marine surveyors miss survey items and may be liable and sued. Usually, they carry professional liability insurance in the event that they do make an omission. But, even so, sometimes other factors come into play, including economics, as the cost of bringing a claim may be not economically feasible. You have to pay for a lawyer, an expert, court costs, and miscellaneous expenses, which will likely exceed the cost of a used MerCruiser engine being installed in your boat. That may want to be your first analysis.
Now, this is not to say that you may have certain rights under the Florida Uniform Commercial Code including rejection/revocation of acceptance, especially if purchase from a merchant. Your should consult with any attorney in your area knowledgeable in this area, because you will likely need to give the seller notice of revocation of acceptance and/or ask for damages of replacing the engine. If the seller was not merchant may also affect some of these issues.
Lastly, there are also issues involving the broker and what he/she represented and whether they violated the Florida Yacht and Sip Brokers Act. The most important thing for you to do is consult a skilled maritime attorney in the Tarpon Springs area to keep the costs down. You may find one on .com, on the Maritime Law Association of the United States at: http://mlaus.org/member-directory/ OR at The Florida Bar for a board certified admiralty and maritime attorney. website at: http://www.floridabar.org/wps/portal/flbar/home/directories/certifications/!ut/p/a1/04_Sj9CPykssy0xPLMnMz0vMAfGjzOINjIxcDf2DDbwszAOcDBx9fdzMnIOMjN1djIEKIpEV-Du7uQAVmLj4mIT4GfqaGhGn39fS0NHQxAKowMTRzcAzzDzM0zzE0MjRz5RI-3EARwNC-sP1o1CVYPEBWAEOJxr4G-JXAPYDxArcjizIDQ2NMMj0THdUVAQAJklOYg!!/dl5/d5/L2dBISEvZ0FBIS9nQSEh/
The answer to your question, simply, is yes, you can sue. Your success will depend on: 1) what the written survey say, 2) the relationship between the seller, broker, and surveyor (which should be a series of written contracts), 3) what another surveyor will say should have happy.
Similar to other types of professional negligence claims, an expert would be required to testify against the surveyor who authored that report. Further, there MAY be an arbitration clause.
Finally as one of my colleagues mentioned, the surveyor who authored the report may not have insurance and no assets (not uncommon in Calif). An absolute requirement for you is to consult a local maritime attorney to talk you through these and other issues (claim against seller, state vs federal court, etc.)
Look here on attorneyqna.com, Maritime Law Assoc of the U.S. (www.mlaus.org), or SE Admiralty Law Institute (www.seali.com)
I think Mr. Gardana in particular covered a lot of territory very well, so I will stick to a few other questions for you. What specific part or parts failed? What was the mode of failure? What are the differences between those parts and the marine versions? What does your mechanic say it will cost to repair/replace? A quick internet search brings up 'long-block' mercruiser engines in the 5-10k range. Is there any possibility that you contributed to the loss? (I only ask this one because the other side will ask it. Counterclaims and defenses can reduce your recovery.) Engine blocks have serial numbers. Should be a simple matter to look up, and either the mechanic or surveyor should be able to do this. So, while the short answer to your question is 'Yes," there are a lot of things to try to understand before you sue.
I also agree that surveyors do not always have insurance, though the number that have coverage is growing. What kind of certifications or Association memberships does your surveyor have? You do need to have an attorney read the survey and the original purchase contract. While there may be a fraud by the seller, the surveyor will more likely just be a negligence cause of action. It sounds like the sale was "as is" and even though it is harsh, that may effectively end a claim against the seller, particularly since you did hire a surveyor. The seller may themselves have been a victim of a prior mechanic.
What about your own mechanic? What sort of certifications does he hold? If he is not a 'certified' marine mechanic, he may not be a strong witness. I have had many mechanics who will provide their opinions to me but cannot or will not testify.
These cases are heavy with experts. You will need at least two: mechanic and another surveyor. That represents significant expert witness fees. And, consider that if you do not prove the case, you may have to pay the fees of the experts of the other side. (And check the contracts to see who pays attorney fees.) Since most surveys have similar disclaimers, one of your first questions to your new surveyor expert should be how he would interpret the disclaimers if he had done the survey for you? In other words, would he think himself liable for this particular question?
My non-lawyer comment : I am most definitely not a mechanic, but have been under the impression that 'marine' engines are mostly car engine blocks that are 'marinized,' i.e., certain parts external to the block are different, such as exhaust, intake and fuel mixture, alternator, etc. I cannot speak to the question of internal bearings or other parts, but your mechanic should be able to do this. I know that newer models special build for the marine environment, but think that may be a more modern situation. You did not specify the age of the boat you purchased, and that may impact this question.
