Does A Surveyor Have The Right To Give The Broker The Survey Report

The Surveyor should have asked your permission before giving it to anyone else.
If he didn't and you have not signed something to say he can without you realising then he is definitely in the wrong.
Potentially now if you don't buy the boat the broker can show it to another buyer who might accept it and not pay for their own survey.

Hi, you paid for it and it belongs to you, to do with as you wish. Send the broker a bill for at least half of the cost detailing that you have not released the confidential report.

Both should have known way better - the surveyor for giving it to the broker in the first place, and the broker for accepting it. Not cricket.

Under copyright law the creator of the work (report) owns it. In my line of work we always get contractors (ie in this case a surveyor) to sign copyright assignment and ndas. (non disclosure). The surveyor did act unethically but i think you would have a hard time doing anything about it. In any case when I was yacht broking I found it better that everyone knew all the facts about a boat so noone got dudded. Keeping surveys secret would usually benefit a seller hiding stuff.Ask the seller to pay half. He might have ethics.

What does it say in your contract?

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Subsonic said..

Trek said..
Under copyright law the creator of the work (report) owns it. In my line of work we always get contractors (ie in this case a surveyor) to sign copyright assignment and ndas. (non disclosure). The surveyor did act unethically but i think you would have a hard time doing anything about it. In any case when I was yacht broking I found it better that everyone knew all the facts about a boat so noone got dudded. Keeping surveys secret would usually benefit a seller hiding stuff.Ask the seller to pay half. He might have ethics.

This^^^^
The surveyor might technically own the report, but they should've known better than to gift a copy to the broker when you've footed the whole bill.
i would be asking the surveyor why he/she figured it was alright to hand a copy to the broker. If nothing else it might make them consider what they've done from your perspective. They might be a bit fresh in the game and not considered. but as trek said, i think the best thing you could hope for is to go to the broker and suggest they should be paying you half the cost since they have benefited from the situation.

Especially if the broker uses the report in any way such as offers it to a prospective buyer to look at.

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Trek said..
For sure the surveyor should have given it to you only. There are more sharks in the marine industry than in the Pacific. It happens in medicine too. A patient doesnt automatically own reports about his own body! Like what JakeNN said though, have a look what your contract says.

Try this - I use it all the time for work - Its an online lawyer service. You ask a question or two. They field the question out to their lawyers and roughly an hour later you get an answer.

expresslawyer.com.au/

Then you know exactly.

Never a truer statement, seemed the surveyor was selling the boat , so much so I asked him who he was representing.
thank you to everyone for their comments.

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Trek said..
Under copyright law the creator of the work (report) owns it.

[SNIP]

This statement is not 100% correct. It depends on the commercial and employment arrangement between the parties. If you are an employee of a company and create something during working hours at that company, you do not own it, the company does.

Given this was a contractual arrangement between two parties, not an employment arrangement, the surveyor would own the report, unless the contract specifically assigned ownership to the customer.

However, even considering all of the above, it was still ethically wrong for the surveyor to give the report to the broker.

I'd like to clarify a few legal points here if I can. Hopefully my 32 years in practice as an IP lawyer qualifies me to do so.

What the surveyor can and can't do with his report is governed by whatever agreement you had with him (under contract law). If there was a written agreement- great; that will spell out his obligations. But if it's a document he got you to sign, it's bound to protect his interests better than yours. Look for a clause that says "I, the Surveyor, can do whatever I bloody like with the report...". If there's a clause that says the report is to be kept confidential (by him) then you've got something. So if he was obliged to keep the report confidential, and only disclose it to you, then he has breached that term by giving a copy to the broker. If agreement was just verbal, are you able to prove that he was obliged to keep the report confidential? Probably not.

As to the copyright issue, if he is the author of the report, he will own copyright in the report, unless (i) he created the report in the course of his employment, in which case his employer will own the copyright, or (ii) there is an agreement in writing that copyright was to be/ has been assigned (to you). If he own the copyright in the report, that doesn't override any contractual terms that spell out what he can do with the report. Owning copyright in a work doesn't mean the copyright owner can do whatever they please with the work. (So Trek, you advice is only half right- owning copyright won't give the surveyor the right to do what he pleases, but a non-disclosure/ confidentiality clause or agreement will stop him from disclosing it to others). Copyright law and contract law make up the full picture. (For the scholars, breach of confidential information can have a foot in both contract law and intellectual property law).

If the surveyor owns copyright in the report, and you've paid for the report, that doesn't necessarily give you the right to reproduce (photocopy, cut and paste, post to Seabreeze, etc.) the report. You don't really need to have the copyright assigned to you if you don't need to reproduce the report, but in many commercial situations it is important to make sure you get all the rights you need.

Finally if there's a marine surveyor's professional body that sets out an ethical code of conduct, you might find some joy there. But I'll leave that to you to research. Beyond my expertise and I'm on holidays!

Now, where do I send my bill?????

Cheers

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Q: When you engage a surveyor to do a report on the boat you are about to buy is he not representing you?

Yes, they are acting for you.

Q:Has Zzzzzz got any recourse? In reality, this time, probably not. Zzzzzz, have you actually suffered some kind of loss as a result of the surveyor's actions? For sure, as a buyer you'd be wanting to use the report to your benefit, and an element of surprise might have given you a strategic advantage. But if at the end of the day you're in no worse a negotiating position, you don't really have a loss to chase.

To avoid this in the future, when engaging a surveyor, make sure that you state, in writing, (in an email is fine) that the report is to be treated as confidential and must be provided only to you as the client.

I have found that there is an Australian Institute of Marine Surveyors, who have a Code of Conduct at
www.aimsurveyors.com.au/resources/Documents/CODE%20OF%20CONDUCT%20-%20FINAL.pdf
I must say the Code looks pretty "sparse".
Zzzzzz, if your surveyor is a member of the Institute, you could perhaps remind them of their obligations under the Code to:
- "Treat all contracts for work with honesty and integrity
- Strive to receive instructions in writing and work to the instructions to the best of your ability
- Always act in the interest of the Principal or Client [ ]"

With such a vague Code, it's not clear if these have been breached. Lodging a formal complaint is likely to be a right p.i.t.a.

I didn't find anything in the Code that deals with confidentiality of a surveyor's report, but there is a section on page 8 about employer's confidential information. The statement "To be protected by the law of confidentiality, the information must be confidential in nature, meaning that it must have the "necessary quality of confidence" and it must be disclosed in circumstances importing an obligation of confidence." is accurate.

If they're not a member, then "ya is just swimmin' wid da sharks".

Be very careful about naming and shaming. It can easily, and expensively, backfire. (Seen that a few sad times over the years).

Anyhow, I hope it all works out.

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MikeyS said..

Q: When you engage a surveyor to do a report on the boat you are about to buy is he not representing you?

Yes, they are acting for you.

Q:Has Zzzzzz got any recourse? In reality, this time, probably not. Zzzzzz, have you actually suffered some kind of loss as a result of the surveyor's actions? For sure, as a buyer you'd be wanting to use the report to your benefit, and an element of surprise might have given you a strategic advantage. But if at the end of the day you're in no worse a negotiating position, you don't really have a loss to chase.

To avoid this in the future, when engaging a surveyor, make sure that you state, in writing, (in an email is fine) that the report is to be treated as confidential and must be provided only to you as the client.

I have found that there is an Australian Institute of Marine Surveyors, who have a Code of Conduct at
www.aimsurveyors.com.au/resources/Documents/CODE%20OF%20CONDUCT%20-%20FINAL.pdf
I must say the Code looks pretty "sparse".
Zzzzzz, if your surveyor is a member of the Institute, you could perhaps remind them of their obligations under the Code to:
- "Treat all contracts for work with honesty and integrity
- Strive to receive instructions in writing and work to the instructions to the best of your ability
- Always act in the interest of the Principal or Client [ ]"

With such a vague Code, it's not clear if these have been breached. Lodging a formal complaint is likely to be a right p.i.t.a.

I didn't find anything in the Code that deals with confidentiality of a surveyor's report, but there is a section on page 8 about employer's confidential information. The statement "To be protected by the law of confidentiality, the information must be confidential in nature, meaning that it must have the "necessary quality of confidence" and it must be disclosed in circumstances importing an obligation of confidence." is accurate.

If they're not a member, then "ya is just swimmin' wid da sharks".

Be very careful about naming and shaming. It can easily, and expensively, backfire. (Seen that a few sad times over the years).

Anyhow, I hope it all works out.

This is exactly my thoughts in regards to using the survey to my advantage, that was blown right out the door.
i would have thought that when you engage a service of any kind that you became a client and you had some kind of client protection.
The yacht has now been purchased after being renegotiated but it wasn't a good experience both for me or the vendor.

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MikeyS said..
To avoid this in the future, when engaging a surveyor, make sure that you state, in writing, (in an email is fine) that the report is to be treated as confidential and must be provided only to you as the client.

The OP (Zzzzzz) never told us how the surveyor was contracted .. either written or verbal ... so the most important facts to answer the question were never provided to us. Very odd why it was kept a secret.