Discussion in 'Bertram Yacht' started by YachtForums, Jan 15, 2010.
Excellent post Jhall767!
Does anyone know if this boat had a pre sale survey conducted at all?
Jhall767, Bertram's defences are reasonable under the law. The courts will determine if they are right or wrong. I think it would have been a good idea for the owner to have raised the wreak when they had the chance since they have the case to prove, but again, the courts will determine if that was a mistake. In your second paragraph you confuse commercial airlines (public conveyance) with private planes. The maker of the plane that crashed last week in NJ after part of the wing fell off will certainly be looking over their designs, but they won't be recalling all the planes they built since it's more likely that that wing was hit by something. As for how first class operations handle these things, Toyota didn't recall their cars even after the 911 tape surfaced with the guy saying they're 'going 120 mph and can't slow down' just before he and his family died.
I pretty much agree with you. Bertram may prevail in the courts and their arguments may be perfectly reasonable legally but there is the law and then there is right and wrong. I'm not saying Bertram or the plane manufacture needs to do a recall. But they should/would find out if any actions need to be taken. If it had been a plane where the wings fell off in flight NTSB would have raised the wreck. I actually had a reference to Toyota but deleted it out of my post. We don't see how it could happen - so it didn't. Definitely not the way to run a business.
Agreed, which is why I think the ethics thread is good. The posters are not the only one's reading that and hopefully it can do some good.
This is an amazing story from the corporate executive/engineering/marking viewpoint. The total future cost/value far exceeds the present cost/value.
That is, the present value of settling with the owner, taking ownership of the sunk boat and recovering it for a thorough inspection and determination by Bertram as to any and all defects in the boat and their cause. (Resin? design? process? other areas?) Possible settlement with supplier.Answers to the many silly and serious questions just in this thread.
Should/could be worth many times the cost/value of negative public relations, loss of present and future sales and customer confidence, legal fees and the negative impact of hearings, filings, and possible trial, loss of dealer confidence, and many more impacts including a court settlement.
For Bertram, Marine Max and the captain it's a case of which way do you want to lose; a decision you always leave to cooler heads (lawyers). Bertram determined that settling it was worth about $400,000 (if my math is correct), but not $2,000,000 plus. As for raising the boat, nothing could be gained from their perspective since it is up to the plaintiff to prove liability. If the plaintiff was so sure of his position he should have raised it for evidence. The cost would very likely be recoverable if he won. Raising the boat would be a lot like asking a question in court, i.e. you don't do it unless you know the answer will support your position.
$400,000.00?? What for legal fees? How about millions and millions in new and used (dealers) boat sales and the corresponding profit and service revenue that has disappeared? I'll bet there are 30 to 100 people in the active market that have nixed the Bertram idea in just the last three or so months because of this incident and how it was handled.
As to raising the boat ... I was talking about Bertram settling so that Bertram could own the boat and raise it for their own inspection and information.
Bertram (from the tape) either knows that they had / have a problem or, they don"t know it was their problem and need to learn about the causes.
If they knew / know they have a problem, it would have been cheaper to do a cursory investigation and spin it the best they could. At least put a band aid on their image.
If they did not know they had a problem a thorough investigation would have been priceless. The fact that Bertram (or appearance of fact) did not go all out to get the boat for investigative engineering purposes makes me wonder. Was there no need to know? It appeared that the divers may have taken samples, and the samples may have told a big story, but the boat has volumes to tell.
Separate question? A month ago or so, I seem to remember someone saying or questioning whether or not the boat was moved, drifted?
They offered to replace the boat (retail I believe about $2.2M) for $1.8M. Legal fees are deductible so they don't really matter.
"If they knew / know they have a problem". Their position is that they don't.
"The fact that Bertram (or appearance of fact) did not go all out to get the boat for investigative engineering purposes makes me wonder." All raising the boat could do would be to confirm your suspicions. That's not in their best interest.
" the boat has volumes to tell." You may very well be right which is why the plaintiff should have raised it. The samples will hopefully tell the story anyway. Of course the results belong to whoever paid for them however (but subpoenas are wonderful things).
Right now consumers may have doubts about Bertram, but people have short memories and an 'it won't happen to me' mentality. If Bertram went to great expense and proved it was their fault wouldn't they feel foolish doing the plaintiff's job for him? And then speculation would be replaced by fact which would be even harder to counter. What's that saying, 'better to be silent and be thought a fool than speak and have it proven'.
Yes, from what has been posted the boat has since disappeared into never-never land.
For Bertram, from a individual case perspective this may be true, but when one looks at the broader perspective of continuing business, this may indeed not be the case. The lawyers are supplied by the insurance company, they are looking out for the insurance company, not the insured except under the condition where both interests are the same. The continued business health of the insured is not an insurance company interest. If the bad publicity costs the insured 5 (probably less, like 3) future sales, they are at a net loss over just replacing the boat in good faith. Under these lines of thought, the decision is better left to corporate management who have a broader interest in the companies health than just this one incident. In Marine Max's case, the future sales cost/break even will be higher in volume of sales required to lose to be behind, but I don't know if that threshold won't be hit. This is definitely a case of where winning the battle may cost you the war.
I still hold the captain responsible for not assuring the vessel was insured for the voyage, that is unforgivable.
I'd be very surprised if all parties don't have their own lawyers involved as well.
Assuming this cost Bertram 5 sales with as high as 1.5M average sale price and assuming as high as 20% net profit that comes to a total potential loss of 1,500,000 as opposed to paying out 1,760,000 (2.2M-20%) for a replacement. Plus, all this notice could actually increase sales. There are two old Hollyweird PR sayings 'Say whatever you want, just spell my name right' or 'better bad press than none at all'. It's all a gamble of course, but one that's very common (Toyota?). I've been seeing very splashy Bertram ads all over, and how many people will think 'With this controversy I bet I can cut a better deal on a Bertram than with something else'?
If the Captain recommended to the owner that the vessel needed to be insured and the owner refused to insure, the Captain is no longer at fault in any way. I have owners that self-insure everything they own from the mansions to the plane to the yachts, and have a blanket liability insurance policy that covers them and their assets from liability, but not for loss.
The boat Bertram offered them for $1.8mill had over 500 hours on it and essentially was a used boat for market value, no deal IMO.
There are too many question marks about the captain for his own good right now IF he's even thinking about working as a captain anymore after this. I also understand that the boat that was lost was bought with about 500 hours so they're offering what he lost.
I have stated the sentiment previously as well. What makes me doubt that that was the situation is that the boat was indeed insured for the voyage that was initially planned, to Newport. However, that shipping was canceled so the boat had to be taken to Florida to be loaded. As every captain who runs the east coast knows, there is an insurance barrier at Cape Hatteras which requires an extra premium to go south of for much, if not all of the year, so typically if it is not planned to take the vessel south out of the coverage area, regions South of Cape Hatteras will be excluded. All one has to read is the first, the declarations page, of the insurance policy to discover the effectiveness and restrictions as well as coverages of the given policy. One page to review is all it takes. If the owner had the boat insured to go to Newport, I'm assuming he would have wanted it insured to go to Ft Lauderdale as well. As you, and I have pointed out, there is the possibility this assumption is incorrect and that would indeed absolve the captain of his liability to the owner, although it would not have absolved him from his liability to any facility, other vessel or any other environmental or economic impact with regards to any other parties involved occurring under his command which would be a stupid risk to take.
With respect, I can't say I agree with the captain having a say on insurance. Every right-minded owner knows the boat should be insured. If he doesn't, his bank will surely tell him. A captain does have an obligation to make sure that the owner is advised that separate coverage is needed for the trip south because it's something that the average owner may not be aware of , but he has no control over whether the owner takes the advice from him or the bank. No insurance does raise the amount the captain may be held liable though, assuming (a bad bet) that the insurance company isn't going to come after him for what they pay out.
My questions about the captain pertain to possibly hitting something or not noticing the boat falling apart until too late. No accusation, but a question mark.
As I said, that is correct, he doesn't have any say in whether the vessel is insured other than to advise the owner if it isn't. It is the owners obligation to insure or self insure. At the point the owner decides to self insure, it becomes the captain's decision if (s)he is willing to assume the liabilities that places on them. Personally, I would not take an uninsured/ self insured vessel without a contract stating the owner's assumption of my liabilities, a contract clause which I have willingly operated under on several occasions. Things go wrong far too often for me to like my keester hanging in the wind to be paddled from every angle.
Or raised? Did anybody ever find the missing transom or forward deck?
I sat at the helm of the 63 Certifiable at the Miami show and you cannot see the bow at all while at the helm. I can very easily see how you could have all kinds of things happening on the bow while running at speed and be completely unaware of them until the bow hits a trough and lets go.
How tall are you?
thanks for asking