MacGregorSailors.com

Chip - my two cents on your current situation and your letter - almost sent this as a PM but the board can probably add further value to this.

PLease note I am not a lawyer but think you should be engaging one pretty soon. If you havent explored it FLorida might have some lemon laws worth looking at - also Boat US has a pretty good history of escalating stuff at the Manufacturers level and would be worth contacting if things dont evolve as you feel they should.

A number of people who know a lot about boat materials and design have already disagreed that (1) voids in the ballast tank don't affect structural integrity, and (2) that voids are commonplace.

I think you should be moving the sphere of discussion away from the details of what is/ is not a defect to "Who shall we all identify as the party(licensed surveyor) who will pass final judgement? Before you hire your own, make sure it is acceptable to all three parties - you, dealer, and Macgregor, or else your funds are wasted imho.

Secondly, I am surprised that MacGregor's pressurized water test didn't cause them to discover and rectify these leaks prior to shipping the boat off to you.

This is an issue is interesting but doesnt aid your case - leave technical stuff to licensed surveyor. Per Chip H's post Im not even sure this test actually occurs.

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This is a case that requires, for the sake of satisfying the warranty and ensuring the safety of those who dare to climb aboard, a determination that (1) there are not any other voids anywhere in the tank and (2) that patchwork repairs will be sufficient because (3) there is no structural problem with the tank. Are you a marine surveyor who can make these determinations for us? Who will guarantee that there are not voids elsewhere? I am going to insist on such a guarantee or I will reject the boat as defective.

Your insistence is reasonable and what we get when we buy a boat new!

It's looking bleak on repair dates. I don't want the boat to sit under the sun for what looks like a multi-week or even multi-month period

.

I am an optimist by nature but I think the timeframe for January to repair your boat is reasonable to expect both legally (force majeure in the form of the Hurricane season) and technically- lets face it, they really dont do too many of these type repairs and hence estimating is not something one could do accurately.

Stephen[/quote]

Stephen,

Thanks for your response. I happen to agree with everything that you wrote. I am a lawyer (not offended by lawyer jokes so have at 'em) and wrote my last email to the dealer from a visceral rather than a rational, legal perspective. (I didn't even run a spell check to catch my type-o's.) Henceforth, my dealings will be more in keeping with the latter.

I haven't had an opportunity to research boater lemon laws in the state of Florida and will wait to see the results of the survey that I intend to pay for. I'd rather just pay for an independent surveyor to analyze the boat than to forever wonder about safety issues and to get into a deeper battle with the dealer and manufacturer. The Florida Bar requires that I resolve all disputes, if at all humanly possible, without resorting to the courts. Understandably, lawyers shouldn't be out there wielding their knowledge of procedures and substantive laws as swords in order to get all of their personal needs met. I am allowed to sue persons and businesses, but it just doesn't look good and should be a last resort. Thus, I am going to short circuit this whole thing by eating the cost of an independent survey. If, at that point, I learn that I have a seriously structurally defective boat, trust me, I'll demand a new boat and sue if I feel that I have no other choice.

Typically, however, as you stated, one must file a warranty claim and allow a dealer to make repairs. I imagine (but don't yet know) that structural defects would have to be severe in order to be able to demand a replacement boat. I haven't read my warranty yet but I imagine that it is fairly standard and will allow them to make repairs for manufacturer's defects (however significant they may be) while disclaiming any liability for defects not traceable to the manufacturer. Bottom line is that I am going to have to let the dealer make repairs. First, however, I want an independent source to confirm that there aren't insurmountable structural problems and to locate any and all voids.

The dealer knows that I am a lawyer and hopefully he doesn't think that I am being difficult for that reason. I just got pi$$ at the reaction of MacGregor, according to which MacGregor stated that my description of the leaks was unreasonable, whatever in the heck that means. How can an objective description of reality be unreasonable? Simply stated, there are visible holes or bubbles in the tank that are filled only with resin and water is leaking through them. (I know that some would argue that all reality is perceived through an inherently subjective lens but I don't subscribe to that view.)

My question, and that which Chip Hindes mentioned too, still remains... assuming that a repair is a viable option (in terms of permanently stopping the leaks and not adversely affecting structural integrity), with much of the ballast tank/hull joint inaccessible, how will they get to these sections to perform the repair?

--Mike

Mike,

I just sent the dealer another email and asked him the same thing that you did in your email. How in the heck does he propose to find and resolve similar bubbles/voids/holes located in inaccessible portions of the tank? I'll await his response.

Chip S.

Chip wrote:I just sent the dealer another email and asked him the same thing that you did in your email. How in the heck does he propose to find and resolve similar bubbles/voids/holes located in inaccessible portions of the tank? I'll await his response.

So, are all of the leaks you have found so far in accessible locations? Or just "visible" locations?

Assuming all of the ones you can see can actually be reached, playing Devil's Advocate here... let's suppose he says, "well, repairing the voids we can get to is no big deal... so we'll fix those, and go from there." Even if there is no more leakage after this, given the fact that portions of the joint clearly were not laid up correctly, how can they rule out the possibility that there could be hidden areas that, while not currently leaking, are weak and will begin to leak a year or two from now?

--Mike

Chip,
Because of the coastal differences........

Manufacturer to buyer.

The laws here are a little more complex, as you point out...... But the underlying material and process is substandard issue. The material that has failed is utilized throughout the boat, and macgregor would have a difficult(read expensive) time PROVING (especialy in california) that ballast tank construction is unique and isn ot utilized throughout the boat.

The boat Will have to go back to a macgregor rep, and be inspected by a macgregor rep.

Thre is no requirement for an agreed upon third party inspector. That would be convenient at best. The dealer cannot fix this. (and meet the weight and other requirements on the specifications page). If this boat was to be repaired, it should be dissassembled. Substructures would be required for an appropriate repair. With what it costs to ship one of these boats across the country, I find it hard to believe that anyone can claim to be able to repair this magnitude of a flaw correctly, cheaper than shipping it back to macgregor.

My greatest fear here is that someone is going to say that a coating of some type is going to fix this problem.

Furthermore, everything else that was glassed with that set of layers/fabric at the same time would also be suspect, and somehow even on the M those areas are not fully inspectable with the hull assembled.

I am sure a set of interrogatories or two would be a wonderful way to start the negotiation.....lol, ( and as much as I would love to write them.).my guess is it is cheaper to ship that boat than answer any set of interrogatories I would write or depositions I would take, along with court ordered factory inspections for discovery etc..., investigation of resin handling that day, lot number checking, crew identification, BOM travelers etc. all items that would be argued in the event of litigation.

I am sure that shipping this boat back is much cheaper than entering suit.

Again, photos, and test results will be necessary, And sending MAcgregor that documentation quickly is only going to help your cause. The most common cause of this kind of failure is typically resin with too much cure prior to working into the fabric....

actually, I can understand Macgregors slow response, hopefully this has never happened to them before.

BUt there is probably one, and only one person, (well maybe his wife also) who can deal with this quickly.

WEll, the point of my note is merely that at some point you need to release control of the vessel back to Macgregor or his authorized agent. You need to have the problem documented prior to that point anyway.
So Full visual inspection/photos, leak tests. Representative testing of other locations (penetrometer, flex mod, UT etc.) sorry but one the boat is out of your hands...... and yes this will all cost. PErhaps explaining that to the MAcgregor factory will spur faster response.... since they are mostl likely will find that these are normally incurred Warranty costs)

And tho I read that
"Thus, I am going to short circuit this whole thing by eating the cost of an independent survey." that is pretty much always the buyers responsibility,


and as I read "If, at that point, I learn that I have a seriously structurally defective boat,"

You are already past that.

My reason for this letter is as follows.....
The dealer cannot realisticly return this boat to like new condition, and meet the factory specs, Nor can he test it completely and determine the extant of the problem.

I believe if you check his contract with macgregor, you will find he is most likely merely a sellers agent, and Florida laws do not seem to be as good as california's for protecting the buyer.

Don't tie the boat up with the dealer, you are wasting your time. But most certainly start submitting bills to the manufacturer for warranty claim costs including inspection, transportation, documentation, etc...

I am not particularly litigous, But a leaky boat is a case extremis... as you noticed on the water.. And in the end, It is much cheaper for Roger to get this boat back quickly, He has many thousands of boats out there that are in good shape, he knows how expensive legal action is, and I have seen no sign that he wishes to incur excessive costs servicing a warranty claim, and like most of us, would rather not P^&& off an attorney let alone any other potential repeat customer.....

Floridas Repair or Replace Provisions (or accute lack thereof.... lol) seem a lot slower and much less useful than California statutes and case law

And isnt it always fun to start looking in Westlaw for good Caselaw...... keeps ya sharp, even when federal law is already clear about this

15 USC 2304(a)(4)


Hmmm, But cannot most attorneys afford a used Mac 65 or the new 70??? lol.... Wacha doing with a 26...hehehehe

Hey At least it was only one lawyer joke.......

Sounds like there are soon to be a whole set of 26M parts available....

Mike wrote:So, are all of the leaks you have found so far in accessible locations? Or just "visible" locations?...how can they rule out the possibility that there could be hidden areas that, while not currently leaking, are weak and will begin to leak a year or two from now?

I think in this case Chip is making the right move by getting an independent surveyor in on the discussion very early. I've never had the opportunity to deal with one in any capacity, but I'm thinking by the nature of their business these guys should be able to make a determination as to the probable severity and extent of problems in the fiberglass. I'd assume it would be the same guy who could tell you the possibility it can be reasonably repaired; though I suppose they could take the attitude they're only responsible for telling you what's wrong, and that getting it fixed is your problem.

In the meantime, I think your attitude is commendable; I'm afraid I would have lost my cool long ago, and in the end that usually doesn't help, it just makes things worse. On the other hand, I believe you have the right to expect quick if not instant response; "Drop it off and I may get to it after the first of the year" is unacceptable.

umm!

Reporting from the Fly Bridge wrote:Did you know that for many boats, it is a good idea to actually have a survey done on a new boat before it is even purchased? I have seen a brand new fishing boat in the $150,000 price range sinking at the dock. I know of a very popular top name expensive new $200,000 fishing boat that had the boat been surveyed before being put in the water, may not have sunk! When you look at that new boat at the show, instead of what frills the Salon has, you should look at where the drain holes are for the live wells and bilge pumps. Are they only an inch or so above the waterline? Are they those cheap plastic through hull fillings that break easily and will sink your boat? When the salesman tells you what great quality their boat is and why you should pay for it, ask him why does the boat not have Brass through hull fittings. You will enjoy the answer as the salesmen begin to tell you that it does not make a difference. I doubt he will be around to "bail you out" if and when the time comes.

Reporting from the Fly Bridge

BoatTalk wrote:Understanding Your Boat Warranty
The warranty process begins as soon as a boat leaves the factory doors. Ownership remains with the company until the boat is accepted by a dealer who then becomes responsible for damage from that point on. Be wary of the exclusions in the boat warranty. Typical exclusions are for the gelcoast, wood surfaces, upholstery, parts not manufactured by the builder, and the costs of transporting the boat to the dealer or to the factory. Builders and dealers agree that owners don't fully comprehend their warranties or don't follow the procedures; that there is a need for a nationwide network of service providers; that dealers don't provide post sales service to the buyers.

BoatTalk

Chip, seems like you're handling the issue exactly as you should.

Waternwaves,

Not being a practitioner of consumer protection law with any regularity, I was unfamiliar with 15 U.S.C. Section 2304 (Federal minimum standards for warranties). That's beautiful and thanks for the citation. Do you already know that the definition of "consumer product" used in the statute encompasses recreational boats sold in interstate commerce? Or is that a question that needs to be researched?

Of course, the problem with that statute, as I think you suggest, is that it forces one to allow the warrantor to make repairs, to exclude consequential damages if the warranty so provides in express language, and to limit a demand for a replacement boat until "after a reasonable number of attempts by the warrantor to remedy defects ...." As we now know, the manufacturer's position is to give it to the dealer for repairs and the dealer's position is to give it to the fiberglass third-party guy to do his patchwork repairs. It is already very clear that they intend to use epoxy or to cut out bad spots and lay a new layer of fiberglass over them.

They simply will never volunteer to replace the whole boat unless and until I send overwhelming evidence of widespread voids and even then they might litigate it. I guess an infrared device can find them? How does the dye test work when a void is not yet a full blown leak and when there are voids in non-visible locations?

You are absolutely correct that I would always have the initial cost of doing my own testing - I just liked suggesting that I was having to eat the cost. It sounded better and felt better. lol

I am presently working on finding a good marine surveyor at a decent price. So far, I'm looking at over 300 big ones. I like the advice of doing thorough testing and then sending a demand to MacGregor and (jointly) to the dealer based on the test results. I think there is no other appropriate course of action at present.

While it is irrelevant to my income, did you know that the average starting salary for lawyers in Florida is $36k? And many grads can't find a job. Market finally reacting to the plethora of lawyers, although the number of accredited law schools keeps growing. Go figure.

Chip S.

Is a surveyor bonded. What happens if one says everything is alright when in fact there is still considerable existing problems? Is he liable in any way?

Difficult question. I doubt that a surveyor will be bound as a professional according to professional liability standards because these guys aren't licensed or certified by state or federal goverment. The standard for being a professional who is subject to professional liability in Florida is whether one's position requires graduation from a four-year undergraduate program. Surveyors have no such requirement so they are not professionals. Don't quote me on that but I am fairly confident of it.

Most likely, they would be subject to the same general standard of negligence that applies to all of us under the common law, although the question of their duty to us would arise. I just don't know if they'd have a duty based solely on a contractual agreement to do an inspection. Answer is probably no. Furthermore, most of these guys probably require you to sign a contract in which they disclaim all express and implied warranties and state that their findings are merely an opinion. An inspection would mostly serve two purposes: give me ammo for negotiations with teh dealer and MacGregor and serve as possible expert witness testimony in a court case. A surveyor's inspection would not, however, give me later recourse against the surveyor (in all likelihood).

Chip S.

Chip S.

There are several qualifying organisations for marine surveyors. I can't say any one is better than the other, and the more groups any given surveyor has been qualified for may ensure a better survey... however, I think years of experience (in the proper area of survey - i.e. small yachts) and the recommendations of customers is ultimately the best guide. Having said that, here's some sources:

The Association of Certified Marine Surveyors is one, and they list several CMS (Certified Marine Surveyor) in the Florida area (look here). Do *not* accept an 'Associate' member, as they are far less qualified.

A third organisation is The National Association of Marine Surveyors (NAMS). This is an old organisation and gives a written exam to qualify as a CMS. They list several CMS for your area here

Another organisation is The Society of Accredited Marine Surveyors (SAMS). This is a newer group and they are most familiar with yachts.. however their membership is not necessarily qualified. They also list folks in Florida.

If you happen upon an "Accredited Senior Appraiser" (ASA), you've found someone who has undertaken additional certification from the American Society of Appraisers (ASA) and is pretty sure to be a good bet... however, these folks are pretty thin on the ground, as it's a lot of work to go through... and they mostly stick to large vessel surveys because they have high qualifications and frankly, to paraphrase Willie Sutton's quote when asked why he robbed banks... he replied "Because that's where the money is!"

A couple of other things to ask a potential surveyor... have they been qualified as an expert court witness in either state or federal courts (most good ones have), do they also get involved in brokerage, repair or sales (stay away from them if they do), are they incorporated and do they hold general liability insurance (should have both), and how long does a usual inspection take (be wary if it's less than an hour or two... it takes that long to get it right).

Hope this helps, and good luck.

Seems to me that the ballast tank fabric and seams must be particularly continuous to contain the water load. Wherever there's smoke, there may be fire. These leaks would beg my question of the strength and layup continuity of the entire tank. Was it just a sick-day for the fiberglass supe?

Please make your surveyor aware that this particular vessel can be subject to hull pounding that is unusual for most sailboats. As the fully ballasted Macgregor leaves a wave top at 12 knots or so, I'm guessing that the ballast tank seams and fabric are subjected to different stresses than one might ascribe as common structural stress. I don't see how a steady-pressure test could duplicate the real-world environment.

At the same time, I've only heard of similar problem one time in the past six years, and it happened during a dealer's demo ride to prospective customer . . . never heard the results. Thousands of these boats preform their gymnastics with nary a leak, and mine has "dusty bilges."

Finally, I can only guess that you caught Bill Snedecker on a particularly bad Monday. I've contacted him for three (minor) hardware failures, and his response has always been immediate, willing and generous. Really sorry to hear of your problems, both quality and factory response.

There have been three of us . . .mostly lurking on this board as of late who had PLANNED to buy a 26M I for one am now waiting to see.
Dang if they end up out dancing a Lawyer what would they do to me ???
decided to add this
If I was to send a email to the Factory (should I ?) not being a published Author how should I explain my hesitance to buy at this time? PM is fine by me as why should we let them read what they (Roger) is about to get, ahead of time.
If they contact Bill they will be aware of how serious I was and still may be in the purchase of this boat.

Hmmmm....three pending sales at 50% gross margin balanced against the Standard production cost of one M.....without regard for the residual from being able to dispose of the failed warranty boat either reworked or parted out....

DOnt have to be a Rhodes 19 Scholar to figure out this business case...

At least the the numbers are working for you Chip!!