• by Tim Akpinar

Legal Perspective

It’s sometimes said that the happiest two days for boat owners are the day they buy their boat and the day they sell it. How much that actually holds true is something that can only be decided by the individual boat owner. There are young sailors who manage to squeeze so much fun out of rickety little sailing dinghies that you’d think their gel coats would wear off… and there are luxury yachts that sometimes sit idle for weeks, yearning to have people enjoy them. But in the big picture, a boat purchase is usually a fun event for many people after the stressful parts get forgotten in the rear-view mirror. The transaction is filled with the excitement of inspections, surveys, sea-trials, and anticipation of sunset cruises. For surveyors who perform the difficult task of crawling through every nook and cranny of a boat to make sure it’s sound, almost every day of your job is essentially someone else’s exciting “first day of buying a boat.” People are so accustomed to the valuable contribution surveyors provide during boat purchases that it’s easy to think of surveyors only in such terms. But marine surveyors do so much more. They are called upon to provide expert testimony in a collision, grounding, sinking, and storm damage cases. When they appear in court to testify, their opinions determine the outcome of maritime lawsuits ranging from salvage claims to warranty disputes. The findings of marine surveyors can help determine liability in boating accidents, particularly when their skills are applied on a forensic level. They can be called to examine whether a sinking was an unforeseeable event or was predictable in terms of maintenance issues related to wear and tear. When insurance companies have to issue checks to reimburse owners for damages, they often rely upon the expert testimony of surveyors in computing the dollar amounts of payments. But the introduction of a surveyor into a situation can sometimes lead to disputes, resulting in courts having to decide if their role is permissible. This can arise in settings where the parties do not unanimously agree as to the involvement of a surveyor. What is often at stake in such settings is not so much the surveyor’s fees, whether it’s several thousand dollars for an investigation, technical report, metallurgical analysis, and court appearances. The disputes here more often involve conflicting opinions as to the valuation of repairs or total loss figures. A compelling issue that arises in these settings is full disclosure so that no one is entering the legal arena without an idea of what type of testimony will be provided. As part of the required disclosures, “a party must disclose to the other parties the identity of an expert witness under the Federal Rules of Civil Procedure. The disclosure must be accompanied by a written report ... if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony.” This is codified in the Federal Rules of Civil Procedure under Section 26 (a) (2) (B). If a party's expert witness is not required to prepare a written report, the party must only disclose “'the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705” and “a summary of the facts and opinions to which the witness is expected to testify.” Fed. R. Civ. P. 26 (a) (2) (C). So while a complex boating or maritime dispute can open the door to a contest of expert opinions, court rules are in place to maintain guidelines for the use of experts. However, the fact remains that litigation for highly technical disputes can become costly. Ref: New Hampshire Insurance Company, as Subrogee of Sanctuary, LLC, v. Bennett Brothers Yachts, No. 7:16-CV-237-D, U.S. District Court for the Eastern District of North Carolina

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