We are buying a sailboat that costs as much as a condo and the warranty part of the contract is literally one single page. Recently I bought a new microwave and it had more pages than that. In today’s blog I’ll talk about what I learned about warranties and who is supposed to be responsible for what.
First, the disclaimer
I am not a lawyer, but I am the one who has to deal with the warranty work, which is why I wanted to dive into this topic, there were a lot of questions that I could only get partial answers to. I started getting nervous hearing about what people have gone through in the initial new boat shake down, but I’ve come to terms with the saying that boats are a hole in the ocean you throw your money into...new or used. And I have to admit, this topic makes me a little more grouchy than usual so bear with me.
I set out to first understand who is responsible and liable for warranty work or a defect on the boat in the event of a worst case scenario and work my way backwards. I had no idea it would become an epic journey through the land of attorneys and juggernauts. So if you are following this this blog in order, you also know by now how my brain works.
- Step 1: Imagine the nuclear scenario, in this case the most drastic scenario I can imagine as it pertains to warranty work or defects.
- Step 2: Talk myself off the ledge by doing the research and figuring out who is accountable for what then spending the requisite five sleepless nights rationalizing why I’m not throwing my hard earned money foolishly into the ocean as if I’m a bachelor at a vegas strip club.
- Step 3: Finally, gather info on what types of warranty work that might be expected in the first year or so.
I’ll share what I learned so far on all these things. Mind you, I’m not on the boat yet but I did learn a few things I wanted to share in my fantastic adventure sussing the boogie man out of the warranty process. More than anything else in this blog I want you to know, it’s not just you! Getting comfortable with the warranty is challenging. I prefer to believe this is so because of the ‘loose’ nature of the industry, not because anyone wants to purposefully make it murky. I’m an optimist.
Let’s start with the actual one page warranty, it’s says bibbity blah and scooby doby do but in the end It states that in the event of a disagreement the jurisdiction is managed by local courts in the town where the boat is manufactured, AND, the law applicable to the sale of the boat and covering the warranty is French Law, AND, French Law supersedes any other contract, including the warranty document I was given, so therefore, the warranty document is basically pretty useless. Which now makes sense why it’s only one page. I mean, why try?
If it takes someone like me, with marginal intelligence to have to sort that out over a week, you can bet it certainly leads to confusion about how to resolve an issue, what constitutes as a warranty item or a poor design flaw or a defect, while you are out someone bobbing around on your boat with sketchy WIFI. None of that is spelled out.
So let’s take a real life example. A couple years ago a catamaran sank (near shore thank goodness) because the hatch was faulty, they were sailing along and the emergency hatch just busted open and the boat started taking on water. They beached the boat before it fully sank and of course, it happened at high tide during a king’s tide so the poor souls realized the next day that the boat wasn’t going anywhere for some time. You can’t make this stuff up. All the insurance crap notwithstanding, whose problem is that (the boat manufacturer or the hatch supplier), who is responsible for a recall, and what constitutes a fix, putting back in the same exact replacement hatch, sealing the hatch shut or having the builder source a new vendor for the hatch? At one point in this story, dealers were giving owners the advice that it’s best to seal the hatch shut which defeats the whole purpose of it being an EMERGENCY HATCH.
It’s these kinds of issues that I wanted to understand and get clarity on early, not later when the situation unfolds and everyone is pointing fingers.
So with this kind of situation in mind, I did some research, I don’t know about you but I would consider this imminent danger in the grey area of accountability as it pertained to French Law and product defects. Then I also had an exchange with a maritime attorney in France, familiar with cases like this. In addition, I spoke with the warranty person at our broker to understand how this would be handled.
Here’s what I learned
The good news is that the laws in Europe on consumer safety are in our favor. Gold star.
- The liability falls on the producer to the product, regardless of who the product was sold through or sourced from, it’s based on who affixes their ‘brand name’ to the product.
- This applies if the producer was bound by contract to the victim or not. So it doesn’t matter whether or not you have a warranty document or a contract directly with the factory or your broker.
- Under the hidden defect warranty regime in France, the factory would be liable both to the dealer (reseller) and to you as the product owner.
- Under French law (French Civil Code), a seller remains liable for the hidden defects to a good even after it has been resold to a third party. Although there is no direct contract between the seller and a sub-buyer (in this case the broker), the seller remains liable to the broker, but in the terms and limits of the original contract. Liability for hidden defects lies on the seller, no matter whether he is also the manufacturer. If a damage is caused by a failure of parts supplied to and assembled by the factory, then the factory would in principle be liable (note that the written warranty notice says differently, which is why you have to pay attention to the written warranty and also the law it’s written under).
Defects/Recall
- The producer has an obligation to put out products that are safe and to recall products immediately that are deemed unsafe. Action can be brought against a producer who failed to do a recall or who exposes someone to ‘immediate risk’ of serious injury or death. Check.
- Under the French Consumers Code, the manufacturer has a duty to take the necessary actions to control the risks that the products it markets may present, including withdrawal from the market, adequate and effective consumer warning and recall from consumers of products placed on the market. Besides, he could face criminal liability for not doing so when such defects are likely to cause serious damage, in particular a threat to human lives.
Legal Action
- A claim against Fountaine Pajot should be founded on liability for hidden defects, rather than on liability for defective products. The law only applies to the damage caused by a defective product to persons or other goods than the defective product itself.
- In the event that it’s not clear which party (the producer, supplier or seller) caused the issue, all will be held equally responsible.
- In case of a serious issue, FP and the reseller should both be notified. All evidence should be preserved. Usually, assistance is provided by the vessel's insurers. If a claim is made to FP and they do not reply, you can file a claim before the Court in La Rochelle.
Other Learnings and Sidebars
- There’s a fraud liability if there is an attempt to deceive a party of the qualities of a product.
- Insufficient information is also grounds for liability, the security that one can expect depends upon the information provided. That means if there was no information given on how to service or use items that results in an injury, the producer is liable.
- Regulatory compliance does not constitute a defense.
So here’s what I understand the broker does
- The factory warranty goes into effect, and the customer releases the factory from any further manufacturing improvements upon delivery on the data of handover but…
- The commissioning agent (hired by our broker) signs for customer acceptance of the boat as it leaves the factory, on behalf of you, which defines your warranty start date. More on the commissioning process was covered in the previous episode on Outfitting & Commissioning.
It is my observation based on all the discussions I’ve had that it's not always known to the owner when that handover exactly happens, which could present logistical challenges if you are also planning to book flights to France two weeks in advance.
The broker acts to help serve as the contact to the manufacturer so they aren’t overwhelmed by direct contact of thousands of boat owners all over the world. They serve as this representative to assist us most directly and also to help manage the requests and workflow, at least I hope.
Everything attached to the boat, like hatches, should be covered by the manufacturer except for major systems such as the engines, navigation, generators, etc that you select as options. In terms of these third party manufactured components, these manufacturers have boats with their components onboard all over the world and each manufacturer tends to have a "Dealer Locator" page on their website to find your nearest authorized dealer. For example, for Volvo, Raymarine, Garmin, Cummins you have to contact the dealer directly on their dealer locator website and you’re pretty much on your own to manage.
So there you go. A friend and I were joking around that they should offer a course in boat law and contracts and then he suggested calling his next boat, “Lawyers Can’t Swim”.
That’s it on who is supposed to do what, let me now go through a bunch of things that are likely candidates for initial warranty work. This is based on actual examples for new catamaran purchases so I didn’t pull these out of my head, but wanted to give you a flavor of the types of big things that come up as it pertains to the warranty.
These things are just a few examples
- Repair cracks in both keels from original blocking position or gelcoat repair where voids open up
- Replace porthole in crew forepeak
- Replace genoa furler jammer
- Mast-base water leak into salon
- Steering Cable Failure
- Engine controls failure
- Add missing vents in salon for A/C
- Fuel tank leak
- Sliding door frame leaks water into salon
Here’s some examples of smaller stuff, just you have these types of things in mind as well.
- Fix AIS; stopped working after storm, simple install error that allowed one of the power supply cables to dislodge in rough seas
- Fix tricolor mast light
- Fix (tighten and re-seal) aft cleat after storm
- Replace lost generator exhaust cover
- Replace multiple broken door hinges
- Replace kitchen island wood panel
- Generator inverter
- Bilge pumps
Welcome aboard, no wonder sailors drink so much. Here’s the good news, we are told that all this gets sorted and mellows out after the first year AND, bonus gift of buying a new boat is that this stuff is covered under a warranty, thank you very much!
It’s just really, really important again, for me to reset my expectations that I was showing up at the doc with my sunhat and sandals and sailing into the sunset. I also think that if you are taking delivery in the US through a US broker and you stick around the first season, you can sort all this stuff out because you aren’t underway fully yet. We may have set ourselves up for difficulty thinking we could pick up our own boat and deal with it in France directly on the ground with the trio of titans the manufacturer, the broker and the commissioning agent who were all in one place. What a preposterous idea!
When we are going through this process we will share it all real time later and I can eat my words hopefully and tell you it all ran much more smoothly than I expected. I think it’s best to think of all this as it being just part of the vibe, this is just another area where expectations can turn into premeditated resentments and anger. But in understanding what I do now, at least I know what the laws mean, what my rights are and have a better understanding of who is supposed to be doing what when they try to argue with me or blow me off as just another girl with a ‘can I speak to the manager’ haircut.
