On 15 August 2024, a judgment of the Amsterdam Court of Appeal was published in a dispute concerning a pre-purchase survey of a yacht carried out by an expert (ECLI:NL:GHAMS:2024:1747).
Facts presented
The claimant commissioned an expert in 2021 to carry out a technical pre-purchase survey of a 1991 yacht. Among other things, the expert found corrosion on the hull. Sometime thereafter, the claimant bought the yacht. Some months later, the claimant sold the yacht again. As part of the pre-purchase survey with respect to that sale, the yacht was knocked with a steel hammer, causing a hole in the hull plating. The claimant subsequently had the yacht repaired.
The claimant claims compensation for the repair costs because of a defective pre-purchase survey by the expert when the claimant bought the yacht. The expert believes he acted with sufficient care and refers to the signed quotation which states that an examination is a snapshot and that the expert has a duty of care but cannot rule out hidden defects becoming visible later.
The court dismissed the claimant’s claim against the expert. It considers that the expert acted according to the standard of a reasonably competent and reasonably acting professional.
Court considerations
The court considers that the parties had agreed on non-destructive testing, which limited the scope of the examination and the ability to accurately determine the nature and severity of any defects in the yacht. The claimant’s request to the expert to better measure the less accessible places in the hull did not affect the indicative nature of the agreed pre-purchase survey, the court said.
The court notes that in addition to doing a visual inspection, the expert also knocked off the hull and took ultrasonic measurements, thus performing all the elements of a thickness measurement. Because the knocking off and measurement involved very small areas and was a random examination, an expert may miss a weak spot in the hull. However, this does not mean that the standard of a reasonably competent and reasonably acting professional is thereby violated, the court said.
In this context, the court considers that the expert did identify the weak spot in the hull where a hole was later punched. Indeed, the expert had observed corrosion on the hull and a decrease in material thickness. In doing so, the expert had sufficiently brought the defect in the yacht to the claimant’s attention. That the corrosion was subsequently found to be more severe does not detract from this – given the indicative nature of a non-destructive pre-purchase survey. If the claimant had wanted to know how serious the corrosion was, it should have ordered a further investigation, the court ruled.
The court therefore dismisses the claimant’s claim, thereby following the court’s lead.
Lessons learned
This case shows that the mere failure to discover a defect during a pre-purchase survey does not make the expert liable towards the client. The wording of the contract can fill in the standard of a reasonably competent and reasonably acting professional. In this case, that wording was in favour of the expert.
The outcome might have been different if the expert had not found the defect at all. In this case, although the expert had identified corrosion, the defect was subsequently found to be more serious. If the defect had not been identified at all then a duty on the client to investigate further would have been less obvious.
We have extensive experience in assisting with yacht pre-purchase surveys from a legal perspective and litigating yacht defects on behalf of yards and buyers. If you have questions about an expert’s findings or need an analysis of your dispute, please feel free to contact us.
