In response to our complaints about the fuel system we received this letter on February 5th 2016 from the builder:
“I am trying to offer a solution to you that will not involve any costs to you. I have offered you in excess of eight dates to come down to the boat to look at your issues. Every time I propose a plan then you refuse my offer.
“As per your contract and under UK law I now suggest that I come down at a date agreeable with you to assess your concerns. I will also bring a representative of our notified body to give a report on the alleged non-compliance of regulation.
“The cost for this will be:
“28 hours travel time @ £65 per hour £1820
“2 return flights Manchester to Paris £400
“Car hire and fuel £150
“2 Hotel rooms overnight £240
“Estimated 8 hours aboard £520
“The alternative to this would be for you to bring the boat back to the point of delivery which will greatly reduce the costs.
“[The builder] will neither commit or schedule any work until this visit is complete. Please come back to me by the 12th of February with a couple of dates that would be convenient for you. I will then confirm back to you which date would be best for our consultant and myself.
“I will require payment of the above estimate before making any travel plans.”
As background, this email message came at the end of an extended exchange about the fuel problems on Wanderlust that came in September of 2015, at the conclusion of our cruising season.
Our complaints went back well before September. The blowback problem on fueling was reported while Wanderlust was in the UK, more than a year before at the end of July 2014; it was the first time we had added fuel. The appearance of fuel in bilge was reported in early May of 2015, after the builder had cut a hole in the floor of our guestroom closet to verify that we indeed have an under floor plumbing problem. It was the first time we could see into the bilge in this area.
Around the middle of September our season on board Wanderlust was winding down. The gray water pipe had been repaired in Toul; it was the end of a long fiasco. The leak was the consequence of the earlier sewer pipe repair. In April a French plumber sent by the builder had found and fixed the joint in the toilet drain had been assembled without cement. The joint had completely separated allowing the toilet to flush into the bilge. In the process of cutting holes in the floor to find the source of the water, the plumber had damaged a gray water pipe. As a result we had exchanged a sewer pipe leak for a gray water pipe leak. From the start of the 2015 season until the middle of September, we had a continuous series of under floor floods. It was a nightmare.
After we left Toul, for the first time all season, water was no longer streaming into the bilge. That should have been a good thing. But the absence of water had a consequence; we could now see that there was a pool of diesel developing in the in the keel in front of the engine compartment bulkhead. We knew previously that there was diesel in the area; the oily film on the surface of the water and the smell of diesel was obvious. But it wasn’t apparent until the bilge was dry that diesel was continuing to come into the bilge. It now was pooling in the keep box. It seems that the gray water leak had been exchanged for a diesel leak. Our complaints to the builder about the fuel in the bilge intensified.
The builder once again said that they would visit to look into was now being termed as an “alleged” fuel leak.
We found it odd that the builder would term the presence of fuel in the bilge as anything other than a fact. The complaint of fuel in the bilge first came after the builder cut a hole in our guestroom closet to confirm that we had the under floor floods that we had been reporting. When the hole in the floor was created the oily film on top of the water and the smell of diesel was obvious. How the builder could, if the builder did, miss the diesel in the hole is beyond us.
Nevertheless, despite promises to take care of the fuel in the bilge problem in May, nothing had been done. And now in September, even the reality of diesel fuel in the bilge was being questioned.
At the time of the start of the September email exchange there were about two months before we’d leave Wanderlust for the season. The builder said that they could get to Wanderlust in late September, if we paid for time and travel for two of his workers. (Based on the rates above, this would cost somewhere north of $3,500.) Even then, with lock closures ahead on our route, the dates proposed were impossible for us. We needed to move fast to reach our winter mooring in Auxerre. The gray water pipe repairs had delayed us. Any further stops for the repairs threatened to trap us behind the closed locks on the Marne. It would keep us from making it to Auxerre for the winter.
The builder was informed that the earliest date that Wanderlust would be available for work was the 18th of October. Further, we would be leaving the boat for the winter at the end of October. Any works done would need to be completed while we were present. There were good reasons for this. The repairs promised to be complex and invasive. It would be far too easy to do a partial job, as had been done previously.
We hurried to Auxerre, arriving on the 14th of October, to provide the largest possible window of time for the builder. It didn’t help. We were now told that the end of October would not be possible.
The builder wanted to attend to the boat on November 3rd, after we left Wanderlust for the season. At the time the date was offered he acknowledged that he knew the date was outside of our availability window; “I know your ideal date is work to be completed by the 27th October.” And of course the date was not available. We would not be on board.
Incredulously the builder then proposed further dates, the 10th and 24th of November, the 8th of December, the 19th of January, and the 9th of February, which he clearly knew would not work. All told six dates were proposed. All six of these dates the builder knew in advance that Wanderlust would not be available.
Why offer dates that you know can’t be accepted? If you call a fancy restaurant and they tell you that they will be closed for the month August, do you then ask for reservations on the 8th, 11th, or 17th of August just to be able to tell your friends that you tried to make reservations but couldn’t get in? Of course you don’t. So why would our builder ask about days that he knew in advance were not possible?
The email above from the builder is nearly correct in stating that he had offered in excess of eight dates to visit Wanderlust. But it was a farce. There had been no offer to come down that had a risk of being accepted. At least the builder now could truthfully tell future customers and his lawyers that they had offered us numerous dates to fix Wanderlust’s problems and we had refused them all.
In his message, the builder suggests dates in March to inspect Wanderlust. These too were dates that he also knew would also not be available. Yet when we countered by saying that Wanderlust would be available from the middle of April on, there was little interest in visiting. The only dates he liked were the ones where he knew that we would not be there.
By his exaggerated count, an excess of twelve dates were offered to attend to Wanderlust’s problems and those twelve dates were “rejected”. The builder couldn’t help customers who wouldn’t allow them selves to be helped. It makes for a good story. It’s not the truth, certainly not the whole truth, but it does make for a good story.
Thus to make things as easy as possible for the builder and to eliminate any issue about travel to France, dates of availability, etc we offered in February to ship Wanderlust by truck back to their plant near Stoke-on-Trent at our considerable expense. This offer, we believed, would eliminate any excuses about traveling to France or questions about the availability of the barge for works. After all, the builder had suggested that it would make things easier if we returned Wanderlust to her point of delivery.
Here is the meat of the email we sent:
“We will accept your offer to make the repairs to Wanderlust at your plant in Knypersley. Given the scope of the problems on board we do not believe that [the builder] has demonstrated the capability of doing complete repairs anywhere but at your plant. Becky and I will pay for the shipping costs both ways, for now, with the assumption that we will recoup the transportation costs later through legal action.
“Before we ship Wanderlust over we expect to have a signed contract stating that [the builder] will repair all documentable or demonstrably known defects on board including items that are the consequence of defective manufacture, faulty repair, and the other unresolved issues that render Wanderlust not fit for purpose…. Further, the contract will state that [the builder] will repair and clean any and all damage caused by these defects in as much as they cause cosmetic damage or health issues (i.e. sewage and diesel in the bilge, water damage and mold). Additionally, given our trouble and expense, we will require that [the builder] guarantee the repairs work for a period of a least one-year after the work is [completed]. If the repairs fail, [the builder] will promptly and without debate, question, or delay correct the problems no matter where Wanderlust is located. We will also expect that the repairs at [the builder’s] plant be fully completed in a defined period of time.”
The letter continued with operational details: We would require access to the boat during the repairs. Some of our expenses were left open to recover. We intended to hire a marine surveyor to document all of the issues in advance of Wanderlust being returned. In our mind, all pretty logical requirements if we went through the pain and effort of returning our floating home to England.
The builder now had choices. They could make the repairs at their plant or they could visit Wanderlust in 2016 after we returned in April. For a moment we believed that the builder would accept Wanderlust back and make the repairs. For the builder this seemed by far the most economical solution. It would be far more expensive for us to have the work done in France and far more difficult for the builder to make complex repairs in France. Further, there was good precedent for the builder taking boats back to the plant to make repairs. They had done it before for at least two boats. Surely given the nature of Wanderlust’s issues, they’d want to do it again.
Our hope that we have found a solution to Wanderlust’s issues did not last long. Our offer to return Wanderlust to the builder’s plant was never acknowledged or answered. Instead the builder chose to “lawyer up”. The next communication from the builder was via their legal counsel.
Another element of the builder’s email included above shows an invoice to cover the cost to inspect Wanderlust with a member of the “Notified Body”. It is an odd clause, as the builder began his email with the line “I am trying to offer a solution to you that will not involve any costs to you.” It is indeed an interesting definition of “no costs to you” when there is a charge of £3130 payable in advance to fund the inspection. How exactly does this amount to “no cost”?
As the builder states, it is his right per contract to being able inspect Wanderlust with an expert of their choosing if we allege a defect. Oddly, the builder states, “I will also bring a representative of our notified body to give a report on the alleged non-compliance of regulation.” It is a telling comment. We had not at that point made any allegation of “non-compliance of regulation”. Indeed, we had not even considered at that this point that the regulations might not have been complied with. Yet the builder was planning on bringing someone from the Notified Body, the private organization that regulates the boat building process, rather than the more typical marine surveyor. Effectively the builder was telling us that the defects we reported amounted to violations of the standards in Wanderlust’s signed Declaration of Conformity. This we could believe. It is something that we would look into.
What we could not believe was that the builder would think to charge us £3130 so that he could inspect Wanderlust to verify that they had complied with the relevant build standards. The concept is stupefying. The builder seemed to be saying that he could, if he chose to, willfully bypass the standards governing Wanderlust’s build and then charge us, if we complained, for an inspection by the Notified Body that demonstrated the non-compliance. The insistence that we pay for the inspection simply felt like bullying.
No progress to resolve the dispute was made before we returned back to Wanderlust in Auxerre in April of 2016. Soon after we arrived we scheduled a visit from our marine surveyor to document the problems on board. We tried to find a date where the builder could attend along with his designated expert for a joint visit, but it did not happen. Indeed, we specifically proposed inspection dates when we knew the builder would be in the area to attend a nearby sales event and do work on other boats. With just an extra hour of driving he could have dropped in and examined Wanderlust. But he chose not to.
Instead the builder proposed dates in May, all of which we agreed to. It was the first time the builder offered dates that he knew we would be available. But as the builder selected the 18th of May for a visit he added a condition that he needed to have sight of our surveyor’s report prior to a visit. It was a condition that had been added unilaterally by the builder. And it was not a condition that we could even agree to; our surveyor had specified that any release of the report would be contingent on his approval. Though we would have shared the report if it were completed, there was no legal requirement to do this. When our surveyor’s report was not completed a week before the schedule inspection, the builder canceled.
The truth is the cancellation of the visit in May came as no surprise to us. There was really nothing that the builder could see that he wasn’t already well aware of. The majority of the problems had been reported and directly witnessed by the builder. What could he find that he didn’t already know was there? Why go through the expense of an inspection to find exactly what you know is there in the first place?
All told between April of 2015 and September 2016, there have been eleven months where Wanderlust has been available for work or inspection. Eleven months. Three hundred and thirty days. At any time the builder could have made repairs or inspected Wanderlust. But it didn’t happen.
It seemed clear to us that the builder wanted to walk away and wash his hands of the all too numerous problems that remained from the build. All future communications, we were told, should be directed through the builder’s legal representative. The message was clear: Go ahead and sue us.
Now it was on us to arrange for the repair work that needed to be done. But even that wasn’t so simple. We had to find a yard that would be willing to do the wide ranging and technically complex work. That would prove to be a major challenge.
Beyond finding a yard we now had to think of the legal challenge ahead. If we started making repairs before the builder had the chance to inspect they would claim that we had violated protocol that allowed for the inspection. But until the builder inspected, repair work would be on an indefinite hold. Not only did the builder not make repairs but also he was effectively blocking us from getting them done on our own. The diesel fuel, it seems, would continue to come into the forward cabin bilge. The many problems on board would remain. There was no end in sight.