Boat Lawyer Explains Possible Remedies for A Defective Boat - "The Floating Lemon"

Posted by John K. Fulweiler | Mar 13, 2014 | 0 Comments

Full keel or maybe a catamaran. Ketch, sloop, schooner or center console. Old, new, used, fresh water only. Months, nay, years pass. You convinced your spouse and maybe a bank. The edge of spring came, and then brightened into summer. You launched. You drove and then you broke down. Not once, a lot. Every time you got underway, it seemed like something was amiss. The windshield leaked, the engine ran ragged and that spouse of yours, well, let's just say you're both at wit's end.

No matter how we may romanticize the relationship, a boat is a machine. And like any piece of machinery, it doesn't always operate as intended. Seals fail and hoses burst ruining a weekend or two in any boating season. If you want uninterrupted weekends of blissful boredom, stay at home and watch the grass grow, right? Still, boating shouldn't be an exercise in mechanical and financial frustration, and when the problems begin to mount, it's important to take time to fairly analyze their scope and seriousness before charting your course to a remedy.

I. Make an objective determination of your boat's problems

When the rubber meets the road (or the hull the water), your ultimate remedy for a defective vessel is litigation. But if you thought boating can get expensive, litigation is worse. As a result, you may want to wade gingerly into the litigation waters. Consider first making a list of the defects you've experienced sorted by date. The list will keep you honest and allow you to objectively weigh the scope and seriousness of your boat's ailments. (Believe me, seeing "scratched cabinet handle" written next to "broken transmission mount" will help turn a seeming mass of problems into a list of serious and not-so-serious issues.) Arranging the list by dates, will provide visual cues as to how the boat performed from season to season and will help distinguish between the "feeling" that your boat is always breaking down from the reality.

If you identify a series of meaningful problems or a single meaningful problem for which a cure hasn't been found, then it's fair to say you might have a defective vessel.

II. Where to go when you boat has defects.

As with barnacles or yellowing varnish, there are remedies an owner may seek in the face of a defect. An owner may seek repair under a warranty, may seek repairs and reimbursements from the manufacturer, or may bring a lawsuit to force the manufacturer to pay for repairs or, in some instances, take back the vessel. As with any new bite of water, the key is determining which rhumb line is best for your particular circumstance.

If you're the purchaser of a new boat, it likely came with a warranty and a second-hand purchaser may have the benefit of a warranty if properly transferred. In any event, provided the warranty's conditions are met, an owner's first recourse in the face of vessel defects is usually through the warranty. Whatever the defect, consider bringing it to the proper dealer's attention and seeking repair under the warranty. If you sail this course, it's always a good idea to document in writing, say, in an e-mail or by facsimile, that you delivered your boat on a certain date for repair work and to document again when the vessel is redelivered to you. Why? If this repair is the harbinger of a long list of problems, you will be able to subsequently show in an organized fashion when and for how long your vessel was with the manufacturer for repairs.

If you're not so fortunate to have a warranty, you may have to pay for repairs up front. Still, your goal should be to force the manufacturer to pay for the repairs. When you're in these waters, think like a lawyer. No, no, I know what you're saying to yourself, but what I mean by that is think about establishing your proofs. In other words, be logical. Consider having the defect specifically identified in writing by a reputable boatyard along with a proposed repair estimate. If you are friendly with a surveyor, try and see if you can get a statement on the surveyor's letterhead (perhaps for a nominal fee) supporting the repair as being associated with a manufacturing or design defect and supporting the repair estimate as reasonable. With those proofs in hand, consider writing a letter to the manufacturer describing the problem and attaching your supporting documentation. As far as the tone of the letter, my two cents is to avoid nit-picking and stick to the heart of the issue. You're goal here is to get the manufacturer to recognize your letter as a clinical demand for reimbursement of repairs you assign as being the manufacturer's fault. Consider closing the letter with a request that if they do not respond within, say, ten business days, you intend to obtain repairs and pursue them for the repair costs as well as the costs of collection. Don't treat the letter like a message in a bottle and, instead, send it by overnight courier or some other form whereby you can track its delivery.

However you may be making repairs to your vessel, at some point the repairs eclipse the joy of boat ownership. Generally, when an owner reaches this point, the circumstances are that the time associated with the constant repairs has eaten into the majority of your boating season, or, the repairs are being made, but failing to solve the problem. Here, and depending on the circumstances, an owner can demand a replacement vessel, or, can try and revoke acceptance of the vessel and return it to the manufacturer. In either situation, you will almost always need to steel yourself for litigation.

With litigation on the horizon, there will be questions about the scope and viability of various remedies. One of the more common questions, is whether the time lost to vessel repairs can be recovered. In very broad speak, the general maritime law does not allow damages for the loss of use of yacht. Of course, being the law, there are certain exceptions (a commercial vessel, for instance). Still, decent arguments may exist that you are entitled to the costs of your slip or mooring and the launching and haul-out charges where the season was lost. Another popular inquiry is what to do if the manufacturer is not honoring the warranty? Here, while there are likely many alternatives, the Magnuson-Moss Warranty Act (15 U.S.C. Section 2301, et seq.) may provide a remedy and its text should be consulted.

Like a Notice to Mariners, take pause to appreciate that the legal waters surrounding vessel defects are tricky and the currents are strong. You need to read and understand the terms and conditions of your warranty. In addition, and like any legal claim, there are contractual and statutory time limits ("Statutes of Limitation") pertaining to when you can bring suit for various claims associated with vessel defects -- miss the time period to bring a claim and, in most instances, the claim is lost forever. The point of this sidebar is to stress that it's worth running the facts of your particular situation by your maritime attorney before doing anything. Think of the attorney as a coastal pilot who can give you a couple of pointers on where not to steer.

III. Keeping the winds at your back

No matter the style, if it's a boat, it will breakdown, that's a fact as old as time. The key is discerning a series of crappy events from an inherent problem that can be attributed to a manufacturing or design issue. While you no doubt have a tremendous amount of time and money invested in your floating dream, maintaining a level of objectiveness will allow you to chart the best course through these shallows and into deeper waters, and fairer winds.

This blog post is not legal advice. Always consult an attorney to understand what rights and remedies may be available. Each situation is different and the law is complicated, you should always speak to an attorney to make certain you properly pursue and preserve your rights and claims.

Underway and making way.

John Fulweiler

[email protected]

About the Author

John K. Fulweiler

Proctor-In-Admiralty / Licensed U.S. Coast Guard Master Formerly a partner in a New York maritime law firm, John K. Fulweiler graduated from the University of Rhode Island with a Marine Affairs degree and the University of Arkansas at Little Rock School of Law. In addition to being recognized by...


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Maritime Legal Issues Explained

Read Our Blog

Talk To Us Today

Fulweiler llc is committed to answering your questions about Maritime Injury law issues

We offer a Free Consultation and we'll gladly discuss your case with you at your convenience. Contact us today to schedule an appointment.