Often ITIC’s surveying members are asked by ship owners, with whom they have no contract, to sign an indemnity, disclaimer, waiver or release in favour of the ship owner, before they are granted access to the vessel. For example, when appointed by a prospective buyer to perform a pre-purchase survey or when appointed by cargo insurers to inspect cargo aboard a vessel.
ITIC has provided many surveyors with advice about how to tackle these requests and further information on this can be found here.
ITIC Suggested Wording
We suggest that in the first instance, any indemnity/waiver presented to you by the owner be declined. However, if the owner insists on a wording you may want to present the owner with the following: “ In consideration of your allowing [the Surveyor], its agents and/ or servants (“the Company”) to board the above vessel for the purposes of carrying out a survey on behalf of the Company’s principal/s, the Company hereby undertakes not to make any claim against the Owner, their servants or agents (“the Owners”) for any losses suffered by the Company (other than those for which the Owner cannot exclude their liability by provision of statute) provided such losses occurred solely due to the Company’s negligent acts and omissions or wilful misconduct.
Further, the Company hereby agrees to indemnify the Owners against any losses they suffer (including claims brought by any third party) arising from the Company’s negligent acts and omissions or wilful misconduct whilst onboard the vessel.
This Agreement shall be governed by and construed in accordance with English law. Any disagreement or dispute arising from this Agreement is subject to the exclusive jurisdiction of the English High Court or, if agreed in writing between the parties, arbitration in London, subject to the provisions of the Arbitration Act 1996, or any statutory modification or re-enactment thereof for the time being in force and the current rules of the LMAA at the time of the dispute.”
Finally, the surveyor may want to include a clause in their own terms with their principal that allows them to recover any losses they may suffer which are not caused by their own negligence as a result of performing the survey.
Guidelines for incorporating Standard Terms and Conditions
Having an excellent set of Standard Terms and Conditions (Terms) in your desk drawer or on your website, is all very well, but unless you have incorporated them into your contract with your client, they will not form part of your legal relationship and you will not be able to rely on them should a dispute arise. It is therefore very important that you incorporate your Terms into your contract. ITIC provides detailed information on how to incorporate your Terms here.