Terms & Conditions

 

7.0           MW Marine Survey - Conditions of Business

 

The following conditions of business form an integral part of the Agreement between the Surveyor and the Client and apply to the Survey Report in all respects save where expressly stated otherwise in the report.

 

7.1           The Client’s instructions and the scope of the Surveyor’s services are as defined in the Survey Agreement.  Except where expressly stated to the contrary in a written document signed by the Parties on or after the date hereof, these Survey Conditions and the Survey Agreement form the entire agreement between the Parties and supersede all previous agreements and understandings between the Parties, and no warranty, condition, description, term or representation is given or to be implied by anything said or written in negotiations between the Parties or their representatives prior to the communication of these terms.

 

7.2           The scope of this survey is as discussed with the client and in accordance with generally accepted pre-purchase condition inspection processes of the survey industry, and as mandated by the International Institute of Marine Surveying.  It should be noted that areas not available for inspection, due to being hidden by panelling, equipment, or not accessible by the Surveyor, do not imply that those hidden areas, and any hidden fittings, fixtures, and hull are acceptable.  Comments made in the report may expand on this. No equipment or structure warranty can be construed from this report.

 

7.3           This survey is a factual report on the inspection carried out, and represents the personal opinions expressed by the Surveyor utilising his professional experience and knowledge. These opinions are given in good faith as to the condition of the vessel as seen at the time of the survey but they should not be construed as incontrovertible fact and anyone wishing to rely on such opinion should first satisfy him/herself as to their accuracy and feasibility and where necessary a second opinion should be sought.  Whilst all due care and diligence has been exercised in the collection of data for and the preparation of this report, the Surveyor purports to provide an advisory service only, based on the opinion and experience of the Surveyor. Such advice is issued in good faith and without prejudice and it implies no guarantee, no safeguard against latent defects, subsequent defects, or defects not discovered at the time of the survey in woodwork or areas of the vessel which are covered, unexposed, or not accessible to the Surveyor internally due to the installation of non-removable linings, panels and internal structures etc., or agreement and permission and instructions not being given to the surveyor to gain access to closed off areas.

 

7.4           The Surveyor shall not be liable under this Agreement for any loss or damage caused in circumstances (i) where there is no breach of a legal duty of care owed to the Client by the Surveyor or (ii) where, notwithstanding any such breach, any loss or damage is not a reasonably foreseeable result of such breach.

 

7.5         This report is given to ……………………………………….. on the understanding that it is a confidential for his/her own use and is without responsibility to others whom it might later be shown.  Copyright remains with the Surveyor.  No responsibility is accepted in respect of any other party with regard to any errors or omissions in the report.  Third parties relying on this report do so entirely at their own risk.  The provisions of the Contracts (Rights of Third Parties) Act 1999 and any subsequent relevant legislation shall not apply to this Agreement and any person who is not a party to this Agreement shall have no right under that Act to enforce any term(s) of this Agreement.

 

7.6           The Surveyor shall have no liability whether in contract, tort or otherwise in respect of the consequences of late, incomplete, inadequate, inaccurate or ambiguous instructions or the non-disclosure by the Client of relevant information.

 

7.7           Any claim by the Client in respect of any breach of the Surveyor’s obligations under this Agreement must be notified to the Surveyor as soon as is reasonably practicable after the Client becomes aware of the breach.  Where any breach is capable of remedy, the Surveyor must be afforded a reasonable opportunity to put matters right at his expense.

 

7.8           Any claims against the Surveyor by the Client shall be deemed to be waived and absolutely time barred upon the expiry of 365 days from the date of delivery (electronic or hard copy) of the Final Report to the Client.

 

7.9           Notwithstanding any other provision of this Agreement, where the Client is acting in the course of a business or commercial operation:

 

                7.9.1        the Surveyor’s liability shall expire 365 days after the Final Survey Report is delivered to the Client and The Surveyor shall thereafter have no further liability whether in contract, tort or otherwise; and

                7.9.2        the Surveyor shall have no liability whether in contract, tort or otherwise for:

                7.9.2.1     any consequential or economic loss or for loss of profit or turnover or loss of use suffered by the Client howsoever arising, whether under this Agreement or otherwise, and without prejudice to the generality of the foregoing the Surveyor shall not be liable for any consequences of late performance of any survey and/or late delivery of any survey report;

                7.9.2.2     any breach of his obligations hereunder of which written notification shall not have been given within 14 days of the date on which the Client ought reasonably to have become aware of the existence of such breach;

                7.9.2.3     any loss, injury or damage sustained as a result of:

 

1. any defect in any material or workmanship;
2. an Act of God or other circumstances beyond the control of the Surveyor; or

iii.            the act, omission or insolvency of any person other than the Surveyor;

 

and the Surveyor shall have no liability to indemnify the Client in respect of any claim made against the Client for any such loss, injury or damage;

 

7.10         The Client shall be responsible for any losses, expenses or other costs reasonably incurred by the Surveyor that are caused by a breach of the Client’s obligations to the Surveyor hereunder.

 

7.11         The Surveyor shall not be liable in respect of any breach of his obligations hereunder resulting from unforeseeable causes beyond the Surveyor’s reasonable control.

 

7.12         The Client agrees that, for reasons of commercial practicality, it is necessary to limit the Surveyor’s potential liability in respect of loss or damage suffered by the Client as a result of any breach by the Surveyor of any of the Surveyor’s obligations under this Agreement.  As such, the Client agrees that no liability howsoever arising whether under this Agreement or otherwise shall attach to the Surveyor except insofar as such liability is covered by the professional indemnity insurance referred to at paragraph 7.13 and such liability (including all Claims Expenses, the Surveyor’s defence costs and the recovery of costs in defence of spurious and or/unfounded claims) shall in any event be limited to a sum calculated on the basis of ten times the Surveyor’s total fee or £20,000 whichever is the greater for each incident or series of incidents giving rise to a claim.

 

7.13         The Surveyor shall maintain professional indemnity (PI) insurance throughout the period of the performance of the Surveyor’s duties hereunder provided that such insurance shall remain available at reasonable market rates.

 

7.14         A normal vessel valuation for any purpose is based on the current open market conditions between a willing buyer and seller.   All valuation work undertaken shall be in accordance with the Scope of Work in the Survey Agreement  and, unless otherwise stated in writing, such work relates solely to the date and place referred to.  Valuations are based on opinions only and are not representations of fact, nor do they carry with them any guarantee of the particulars or information on which opinions are based.  A valuation does not cover the cost of building a new one identical, or the price reached during a forced sale.

 

7.15         In every case the Surveyor recommends a full survey of a vessel both in and out of the water. When the Surveyor surveys a vessel only on the basis of an inspection of the vessel out of the water, the Surveyor gives no warranty or guarantee as to the watertight integrity or buoyancy of the vessel.  When the Surveyor surveys a vessel only on the basis of an inspection of the vessel when it is afloat, the Surveyor makes no representation and gives no warranty as to the condition of the vessel beneath the waterline.  

 

7.16         These vessel particulars were recorded as disclosed to me by the Broker/Owner/Client, have not been checked by me and no guarantee of accuracy can be given.  Unless otherwise stated in writing, all services and reports are provided on the basis that they carry no guarantee for the subject vessel regarding ownership or title, freedom from mortgages or charges, debts, liens or other encumbrances, or vessel stability, performance or design.  

 

7.17         Unless otherwise stated no parts of the vessel structure and equipment have been examined where these have been hidden by paint overcoatings, linings, mouldings, machinery installations, tanks etc, and for this reason we are unable to state that these parts of the vessel or equipment unseen are free from defect.  Any opinion expressed on these areas has been based on the Surveyor’s experience and on the condition of the adjacent parts of the vessel.

 

7.18         Unless otherwise stated, machinery tanks, internal ballast, inflatable boats, electrical and electronic equipment have not been dismantled for further examination.  Therefore in as much as any opinion is given, the Surveyor has made an external examination where possible and is reporting based on his experience and on the condition of the adjacent areas.  Fuel pipework in an engine installation should comply with ISO 7840:1994, and sea water cooling hoses in machinery spaces below the water line must be manufactured from a fire resistant material and secured with 2 Jubilee Clips.

 

7.19         The Surveyor makes no representation and gives no guarantee or warranty as to the suitability, specification, condition, quality or quantity of any and all fuels onboard the vessel.

 

7.20         Unless otherwise stated no fastenings have been withdrawn, no test borings of the hull, keel or rudder have been made and no specialist testing conducted.  Other than where otherwise stated all mechanical components, electrical and electronic equipments have not been test run and only a visual external inspection made. 

 

7.21         It should be clearly understood that sails, rigging, chains and warps have not been fully ranged at the time of the survey and these should be inspected closely prior to use and regularly thereafter.  Where masts are stepped at the time of survey examination is made at eye level above deck only and it is recommended that inspection be carried out at the masthead prior to use and regularly thereafter.  A professional rigger can advise further.

 

7.22         Unless otherwise stated no opening up work has been carried out on any of the vessel’s machinery and therefore no statement of condition can be given or inferred.  The age of the vessel’s batteries should be established and if found to be greater than 5 years old then early replacement considered as the average life of a battery in a marine environment is often not more than 5 years.  An electrical drop test can be conducted by an automotive engineer to determine battery condition.

 

7.23         Bottled gas systems should be the subject of careful installation with cylinder stowage arranged in a gastight compartment with a facility for safe overboard discharge of gas from that compartment, and with all pipework in compliance with the appropriate current British Standard.  In so far as is possible flexible pipe lengths should be as short as possible and to the appropriate British Standard.  All copper pipe runs should be of a seamless type, sheathed in clear plastic tubing for protection and carefully clipped to adjacent structure.  Gas detection equipment should be installed and regular examinations of such installations conducted by engineers experienced and qualified in such systems.  The Surveyor will comment on gas installation and state his observations although only a ‘Gas Safe’ qualified engineer can certify the system as being safe and fit for purpose.

 

7.24         Regular examination is strongly recommended of all through hull skin fittings and related pipework systems.  Shaft glands, sail-drive diaphragms, should be regularly examined.

 

7.25         Dismantling for scrutiny of chainplate and stem-head fitting fastenings should be carried out, and rudder stocks, keel bolts and propeller shafts should be drawn periodically for examination over their hidden length.

 

7.26         Particular attention should be paid to the provision of adequate safety equipment, including pyrotechnics, fire-fighting equipment, life raft, lifebuoys, radio/telephone etc appropriate to the area of operation of the vessel.

 

7.27         Steering systems are inspected for strength and visible flaws and its operation between full port and starboard lock with the vessel ashore.  The normal hydrodynamic forces when under motor or sail are not present and defects in the system may as a result not be detected.                     

 

7.28         Where hull coatings have been disturbed by the Surveyor it is the owner’s responsibility to restore them.

 

7.29         It is assumed that the vessel and its equipment will be used for the purpose for which the vessel and its equipment was designed and in conditions generally prevailing in the geographical area where the vessel was examined for the purposes of the survey report.

 

7.30         The Surveyor does not imply that the vessel is fit for any particular purpose nor does he warrant that the vessel and its outfit of equipment may comply with the Regulations, Classification Society Standards, or similar nor does he imply compliance with any National or International Class Rules unless specifically stated in the report.

 

7.31         This vessel was not inspected as to its compliance with the Recreational Craft Directive, the “CE” marking system, or the compliance of installed equipment with it.  The vessel is not warranted to its suitability for use in any of the offshore banded categories. 

 

7.32         Where a sea trial is conducted equipment basic performance will be tested.  Abnormalities with the engine will be reported although satisfactory results do not imply liability on our part for future reliability.  Electronic navigation equipment will only have the basic functions recorded and not the full range of equipment capabilities.

 

7.33         The Surveyor attends the sea trial as an observer only. 

 

7.34         Where the term “appeared” is used to describe an observation it implies that the very closest of inspection, or operation of equipment, was not possible due to constraints placed on the Surveyor (e.g. no power, obscured vision, or requirement to avoid damage to equipment).

 

7.35         For pre-purchase surveys the Brokers or Sellers inventory of equipment being sold with the vessel should be checked by the Buyer as this will not be examined by the Surveyor.

 

7.36         Comments – It is expected that the vessel Owner takes action on all comments made during the report. Any actions not undertaken from the comments made by the Surveyor is done at the owner’s own risk and the Surveyor has no liability.

 

7.37         The fee agreed between the Surveyor and the Client for the services to be provided by the Surveyor under this Agreement (“the Survey Fee”) shall include the costs of travel, subsistence and accommodation unless otherwise specified in writing by the Surveyor.   Agreed fees to be paid within 30 days of submission of an invoice (electronic or hard copy) for payment, sent by the Surveyor to the Client.  Preferred payment is by bank transfer.

 

7.38         The Surveyor may terminate the appointment forthwith if the Client fails for more than 30 days to pay any sum due when demanded, or if the Client fails to respond promptly to requests for information and/or instructions and fails adequately to respond to 30 days’ formal notice of such failure, without prejudice to the Surveyor’s accrued rights.

 

7.39         In the event that any provision of these terms is held to be a violation of any applicable law, statute or regulation, such provision shall be deemed to be deleted from these terms and shall be of no force or effect and these terms shall remain in full force and effect as if such provision had not been contained herein.  Notwithstanding this, in the event of any such deletion the Parties shall negotiate in good faith in order to agree the terms of an acceptable alternative provision.

 

7.40         In any dispute between the surveyors and the client, this shall be construed under the Laws of Scotland or England at the discretion of the Surveyor.