By Eric Spoonberg
In April 1987 I was called in as an expert witness on behalf of a boatbuilder facing a $4 million lawsuit. The owner of a 50-foot yacht produced by the builder claimed design and workmanship defects caused the boat to be potentially dangerous and liable to catch fire .
How was the boatbuilder to defend himself against the charge? Based on the number of calls crossing my desk for expert witness testimony, the number of owners versus boatbuilder lawsuits is growing. The most common claims seem to be for design defects workmanship defects, breach of contract and fraud. The damages sought may range in the thousands of dollars to millions.
Some of the claims have a legitimate basis. Others are nuisance claims, petty gripes blown out of proportion and stubbornly pursued to court. Many cases contain an element of both.
In the $4 million suit mentioned above, while threat of fire sounds like a valid concern, the owner did not even file suit until 18 months after he had sold the boat, during which time no fire occurred. He also sued for reimbursement of all his maintenance bills on the boat, which included beer and lunch tabs for his crew.
But whatever the basis of a lawsuit, the end result is the same. The boatbuilder must prepare to defend himself in court.
In the past few years I have been summoned as an expert witness on behalf of the boatbuilders in half a dozen cases. I am hired by the builder's attorney to evaluate the structure and performance of the boat in question and, if necessary, to testify in court.
My first step is to request from the builder complete documentation on the boat. I need engineering calculations, up-to-date drawings with details and sea trial results. Each of these three types of documentation serves a distinct purpose. Yet all too often, I find none of the three exists.
Engineering calculations show the boat's structure was designed to some acceptable standard such as the American Bureau of Shipping (ABS) Rules. The calculations demonstrate that the design was executed in accordance with the latest science and technology and compared to a trusted, independent standard.
The explanation "because we've always built our boats that way" or "everybody else does it that way" is not likely to sit well with a judge and jury.
Up-to-date drawings show that the plans used by the workers to build the boat reflect the way it was engineered. If plans do not exist or are very sketchy, how can the builder prove the boat was built properly? Records must show the building crew had complete and accurate instructions were under qualified direction during construction of the boat.
Sea trial results of the boat (or a sister ship from the same production line) show the boat met design expectations and advertising claims. If sea trial results do not exist, a builder cannot prove his design ever performed properly prior to the owner's purchase of it.
In the $4 million case, the boatbuilder had never performed either structural calculations or performance studies, both of which should be standard in any boatbuilding operation. As expert witness, my job was to retroactively produce this documentation.
This involved trips to both the boat and the plant to verify production methods, hours spent recreating the missing calculations and writing a comprehensive report, and more hours devoted to appearances for depositions and the trial itself - all at the builder's expense.
This type of second hand documentation makes a case much harder to defend. While forensic engineering can satisfactorily reproduce much of the data, the regenerated calculations can never be as complete as the originals would have been. It also sends a message to the judge and jury that the builder did not take proper care and preparation in building the boat.
Even if the boatbuilder wins the case, the cost can be staggering. He must pay the time and expenses of the expert witness or witnesses called in to generate the missing material. He must pay his employees to assist the expert, including trips to and sea trials on the boat, and for meetings and information gathering efforts. He must pay for employee time to answer interrogations and give depositions. He must pay lawyers who must work harder to defend the case. And how much is his own time in all this worth?
In short, lack of documentation reduces the builder to the same level as the plaintiff. To prove his case, the plaintiff must hire his own expert to do design analysis, engineering and sea trials. If the builder already has this information, he is in a much stronger defense position.
If, however, the builder's knowledge and background about his boat is weak, he can be sure the plaintiff's lawyer will exploit it to their advantage. The builder should be so much better prepared going into the courtroom that even a jury unfamiliar with boats and sailing can immediately see the difference. It's a clear case of knowledge is power.
Some lawsuits seem so ludicrous you can't imagine how they could ever reach court. One owner sued a builder because his boat dragged its mooring and washed ashore - after his insurance company had already paid for the repair. Another filed a suit insisting his boat's molded-in waterline guide, a thin line that stood proud on the hull, was a dangerous crack in the laminate
Unfortunately, no matter how ridiculous the case, a certain number of steps must still be taken to answer the claim. Proper documentation can shorten these steps and save the builder time and money.
But there's even a better reason for proper documentation than the threat of law suits. By starting out with thorough plans, engineering calculations and well documented production notes, the builder has a better chance of discovering flaws or problems in the design. These could then be corrected during construction. The resulting boats will be significantly higher quality and the overall threat of litigation will be greatly reduced.
What can boatbuilders do now to avoid legal nightmares?
First, document their existing boats. Get plans made of them. Undertake the necessary engineering to check the design against design standards such as ABS. Make all changes required to bring the boats up to standards. Keep up-to-date production schedules noting significant changes to the design. Keeping all changes on record in your engineering department.
Second, look to their new designs. Go to a designer who can produce detailed structural plans, the necessary engineering in accordance with accepted standards and performance predictions. Keep design and engineering records up to date. Keep production schedules up to date.
Sounds like a lot of work for the boat builder? Yes, indeed. But not nearly as much work and headaches as defending a lawsuit that could cost millions of dollars and perhaps put the builder out of business. When a builder can precisely identify and explain every major development and detail of the boat he is building, he'll know he is building a better boat.
As for the $4 million case, it involved hundreds of hours of defense work and dragged on for nearly two years from the time the claim was first filed. My own conclusion after a detailed study and reconstruction of the boat's design and construction was that it met most, though not all, of the design standards.
Nevertheless, due to deals between the plaintiff and two co-defendants, the boatbuilder was forced to settle out of court for a sealed (undisclosed) amount.
In our current litigious society, no one is immune from the threat of a lawsuit. But taking the above precautions may help you defend a case if one ever comes. The moral is almost too simple to be true: Any boat worth building is worth building right!
Eric Sponberg earned a B.S.E. degree in naval architecture and marine engineering at the University of Michigan in 1971.
He has worked in Exxon's tanker design division, been chief engineer of Tillotson-Pearson Inc. and taught courses in small craft design minor at Roger Williams College, Bristol, RI. His services are available through MEC.
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