The holds had been cleaned prior to loading and some hold painting carried out. In fact some painting of residue barley from a previous cargo on ledges arising from the construction in the holds, had taken place!


The difficulties associated with this type of survey are well known to us as surveyors and it is extremely difficult, if not sometimes almost impossible, to be satisfied that all residue of previous cargo, and significant rust, is not present on the ledges of beams and stingers in the holds. These surveys require considerable time and care, often even assistance and equipment to carry them out properly.


In this case of this Adelina claim, the survey company were grateful the District Court judge laid 50% of the blame on the shippers who, he contended, should have drawn to the surveyors’ attention the very high standards of cleanliness required by the NZ Authorities.


The survey fees in Tampa amounted to only $50 per hold and the judge contended that the shippers had to assume a responsibility because a much higher fee should have been expected if SGS was expected to assume a much higher standard of responsibility — or else they should have expected SGS to decline the survey in the absence of an appropriate fee. He was critical that the shippers, in their acceptance of such low survey fees and casual dealings with the surveyors, had shown too little concern regarding the risks involved.


In 1990 the case went to the US Court of Appeal where the judges found that the surveyors in the loading ports failed to carry out their surveys with sufficient care so that SGS were in breach of contract. But the Appeal Court did not award the shippers the full contract damages for similar reasons to those expressed by the lower court judge.


THE LESSONS FOR SURVEYORS


Apart from the obvious lesson of appreciating the difficulties of surveys of this nature and performing accordingly, another lesson is contained in further comments made by the first trial judge. He made the point that the attending surveyor should have stated only what he actually saw and specifically reported only on the areas of the holds to which he could gain access.


This is sound advise for all types of surveys and we surveyors should always make it clear whenever and wherever, for various reasons, we have been unable to carry out a survey to the required standard.


There are frequently surveys where we have to accept some limitations on the extent to which we can report fully on some part of a structure in ships and small craft. In some surveys of cargo it is impractical (often prohibitively expensive) to examine every item. We may be obliged to form an opinion on a limited sighting or sampling and that may be quite acceptable BUT we need to say so in the report and express any limitations. This applies to all ‘fit- for purpose’ surveys where there are often good reasons why the extent of a survey is restricted BUT it is important that principals are aware of them.


Making the appropriate statement in the report is essential but the surveyor’s responsibility will often arise well before his principal receives the written


report. The surveyor must, in these circumstances, inform his principal of the limitations on his survey as soon as possible, maybe by email or even better by telephone or in person. In many cases the written report will arrive too late for the principal to make decisions on what should have been done as a consequence of the limitations of the survey.


It may be very necessary to delay loading a cargo until a very much more extensive survey (doubtless at a much greater cost) can be carried out, perhaps to provide greater safeguards against contamination. Prompt notification may be essential in any other types of condition surveys, i.e. ‘On hire/ off hire’ for a charter, or for the purchase of ships and small craft.


Although mention has been made of situations where a surveyor may be constrained in a survey and restrictions legitimately imposed on the extent of his reporting, this should not be seen as an opportunity for an easy excuse for not bothering to do everything reasonable to overcome those obstacles. The use of disclaimers in reports where a little more care and trouble might have permitted a fuller and more useful survey, will rarely be of much protection for the surveyor. The courts are unlikely to accept any excuse for a lazy survey and will see the surveyor as having been negligent. He can expect to pay the price for his lack of care and attention.


The Report • March 2017 • Issue 79 | 43


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