The customary use of amicable maritime surveys demonstrates their effectiveness, and in the absence of a general legislative or professional framework, practice has created this field and precisely refined its contours so that it can be usefully utilized as evidence. The thesis demonstrates that the effectiveness of the amicable maritime survey rests on two pillars.
The first vector of the amicable survey's effectiveness results from the selection of a reliable surveyor, based on criteria related to the surveyor that practitioners refer to during the selection procedure. Effectiveness is then based on the conduct of the survey itself, specifically the concrete implementation of the search for truth and, to a lesser extent, the adversarial nature of the survey.
However, the intent here is not to reiterate all the points developed in the thesis. Rather, we would like to return to subjects of practical interest, namely, on the one hand, the surveyor's independence and, on the other hand, the evidentiary value of the survey.
As a preliminary point, a semantic clarification of the term "amicable" is necessary. The amicable survey implies a common agreement between the parties; therefore, in maritime insurance (specifically cargo), it is generally bilateral as it is decided jointly by two parties. It is thus not typically unilateral, although it can rightly be described as unofficial when this term is synonymous with non-judicial. However, the amicable survey report can also be utilized in a distinct context, generally relating to a liability claim following a loss that justified the payment of insurance compensation. The amicable survey can become unilateral with respect to third parties to the insurance relationship if they did not participate in the organization and execution of the maritime survey, nor were they involved in it.
First, we would like to present some analytical keys regarding the independence and competence of the surveyor, as well as the tenuous links that unite these concepts. Second, we will return to two crucial points regarding the judicial treatment of the survey, notably to draw attention to the preparation of case files.
1. The surveyor's independence
A reliable amicable surveyor, likely to be chosen to act under insurance policies, is an independent and therefore competent surveyor. Regarding the surveyor's independence, the goal here is to draw attention to certain elements that should alert and reinforce the vigilance of practitioners towards certain amicable survey reports—the mere affiliation of a surveyor to an expert group (CESAM or Lloyd's, for example) not being sufficient to attest to their independence.
1.1. The existence of a risk
The fact that the amicable surveyor intervenes because they were appointed by one of the parties creates a risk, intuitively perceptible, regarding their independence. This situation indeed generates the risk that the surveyor may rule in favor of the interest that is paying them. This risk exists particularly because the amicable survey is conducted outside the control of a judge (who can neither appoint a surveyor nor pronounce their recusal or replacement) and because the profession is not regulated (and lacks a uniform code of ethics or an organization capable of addressing breaches of independence). The risk is all the more significant considering that the surveyor is a professional whose activity is, often exclusively, the realization of surveys, which can create a form of economic dependence on the interests they represent. The risk is even greater as the cargo survey business has become highly competitive, with a restricted number of players having real power over the choice of the surveyor.
1.2. Situations requiring heightened vigilance
Certain situations demand increased attention as they are symptomatic of the realization of a conflict of interest risk, although their existence does not definitively imply the risk's realization. These situations include (though the list is not exhaustive):
- Situations in which the surveyor can prioritize their personal interest, notably when there are salvage sales with the surveyor's remuneration expressed as a percentage of the transaction, and when the company in charge of tallying the cargo at departure is also in charge of tallying at discharge.
- The existence of deductibles in insurance policies, which represents a real risk. If the recourse is not exercised through insurance brokers, the claim is entirely managed by the insured, and the insurers and brokers have no visibility over this management. The insured, most often a commercial company, does not have the same approach as insurers regarding claim management. It may be based on the pure profitability of the claim. The insured may therefore be tempted to exert pressure on the surveyor.
- The share capital structure of the surveying company, because certain companies explicitly representing specific interests have established surveying companies (acting for these same interests or for others).
1.3. The realization of the risk
The risk materializes primarily in two different ways:
- The falsification of figures, which involves a deliberate modification of the report and appendices to alter the reality of the extent of the damage.
- The issuance of an "accommodating" (complaisance) report, which impacts the cause of the damage and ultimately seeks to alter liability for the damage.
1.4. Mitigating the risk
The risk of a conflict of interest materializing must be put into perspective on several levels. These mitigating elements can, if detected by third parties to the survey relationship, dismiss the risk and should guide practitioners in detecting it.
- From a practical standpoint, the existence of guarantees implemented by the surveyors themselves: the establishment of or adherence to charters, codes, or other bodies of rules classified as soft law; intellectual independence (materialized, for example, by resisting requests for modifications or alterations); legal independence (visible through an analysis based on corporate law, such as the transparency of the identity of partners in an LLC).
- Also from a practical standpoint, regarding external controls on the surveyor: controls by insurers, brokers who appoint the surveyor, and during the exercise of liability recourse (amicable or carried out by lawyers).
- On an intellectual and moral level, mitigation relies first on the contractual relationship: contractual good faith, which requires the surveyor to fulfill their mission (namely, determining the extent, cause, and origin of the damage objectively); the qualification of the contract, which is a contract for services implying the provider's independence in executing their mission (unlike a mandate contract, which involves concluding a legal act—not the goal of the maritime surveyor's intervention—and requires the agent to be mandated specifically to achieve a defined result).
On this same level, the surveyor's independence is also linked to their competence, which is both a proof and a vector of independence.
2. The evidentiary value of the amicable survey report
The reflection of the surveyor's independence and competence mirrors in the survey itself: the maritime survey must pursue a constant objective of seeking the truth because the report is an evidentiary element.
2.1. The amicable survey serves as evidence
Case law broadly admits that "the amicable survey serves as evidence." Consequently, it must be produced in accordance with procedural requirements to be effectively usable during civil proceedings. Indeed, case law holds that "the amicable survey report constitutes documentary evidence like any other," and requires it to comply with the requirements laid down in particular by Articles 15, 16, and 135 of the Code of Civil Procedure.
It is important to keep in mind that the maritime amicable survey report is, in most situations, intended to serve as evidence in commercial disputes, involving commercial companies in the exercise of their activity, to prove legal facts. Yet, evidence is freely admitted in maritime litigation.
2.2. The lack of intrinsic evidentiary value of the amicable survey report
Because the chambers of the Court of Cassation had divergent approaches for a long time, a mixed chamber, in a ruling delivered on September 28, 2012, attempted to clarify the links between the amicable survey and the sanction related to the lack of an adversarial process. In this case, an insurance company sued another company and its insurer to obtain their joint and several condemnation to pay an insurance indemnity it had paid to its insured, based on a survey report established by a surveyor appointed by the company and issued following a non-adversarial survey. The Court of Appeal dismissed its claim on the grounds that its pretensions were exclusively based on said report. The Court of Cassation upheld the Court of Appeal's decision and determined then that "if the judge cannot refuse to examine a document properly submitted to the debates and subjected to adversarial discussion, he cannot base his decision exclusively on a survey carried out at the request of one of the parties."
The Court thus declares the amicable survey, a priori non-adversarial, valid, but specifies that it must be corroborated by other elements and cannot stand alone. Thus, at first glance, it is the lack of reference to any other evidentiary element, whatsoever, that is prohibited.
This decision follows a logic adopted by a majority of the chambers of the Court of Cassation which equivocally betrays the desire to erect a form of hierarchy of reports based on their nature. If "an amicable survey report subjected to adversarial debate can only constitute one clue among others to prove a fact," it must be deduced that its regime is modeled on that of an annulled judicial survey report. This temptation is understandable but, when analyzed more broadly, it demonstrates the establishment of a hierarchy of evidence that is not legally founded and goes against the freedom of evidence relative to legal facts upheld by commercial law.
Case law subsequent to this ruling seems to require that the amicable survey report must be "corroborated by at least one piece of evidence likely to positively establish the alleged fact" and decides that a confrontation with other elements produced in the debates is not sufficient. This requirement is, a priori, relatively simple to respect and it could, for example, be an estimate, a bailiff's report, or a geometric surveying plan. Although the argument that a low-value element could "act as a foil" to the report, the report's appendices seem able to be used usefully and effectively to corroborate the affirmations contained in the survey report. The fact remains that the position adopted by the Court of Cassation calls for some reservation with regard to the law of evidence.
2.3. The regrettable lack of a link between the adversarial principle and evidentiary force
Regarding the link between the adversarial nature and the evidentiary force of an amicable survey report, which logically should have been firmly established, case law subsequent to the 2012 ruling seems to invalidate the existence of this link. Thus, it appears that compliance with the adversarial principle is not necessarily considered when assessing the evidentiary value of the amicable survey report.
As early as 2018, the Second Civil Chamber decided that a Court of Appeal that relied exclusively on a non-judicial survey carried out at the request of one of the parties, "regardless of whether it was in their presence," violated Article 16 of the Code of Civil Procedure. This is also the position of the Third Civil Chamber which, moreover, specified the contours of this disconnection. This solution applies, indeed, except where the law provides otherwise and "regardless of whether the opposing party was regularly summoned to it." All these decisions were rendered under Article 16 of the Code of Civil Procedure, which states that the judge observes and ensures the observance of the adversarial principle.
In a ruling delivered on March 5, 2020, the Third Civil Chamber of the Court of Cassation decided to quash a ruling of the Toulouse Court of Appeal on the grounds that "the judge cannot refuse to examine a report established unilaterally at the request of a party, provided it is properly submitted to the debates, subjected to adversarial discussion, and corroborated by other evidence." In this case, it was a measurement certificate, carried out unilaterally. Regrettably, this ruling may indicate that a non-adversarial survey corroborated by a unilateral element has a greater evidentiary force than a survey that is amicable but adversarial.
However, this position is not shared by the Commercial Chamber of the Court of Cassation. The latter indeed decided that an amicable, non-judicial survey carried out at the request of one of the parties, conducted in an adversarial manner, regains a certain probative force: "having noted that the survey of the two helicopters had been carried out by the Airclaims firm in the presence of the Ixair company, highlighting the adversarial nature of the survey, the Court of Appeal was able to rely exclusively on this report."
2.4. The need for further clarification
This difference in positions renders the scope of the 2012 ruling obsolete and demands new clarification, which should be established in light of effective compliance with the adversarial principle. It seems logical that the adversarial nature of the amicable survey determines its evidentiary value and therefore its probative force, as the adversarial principle should play an objectifying role that should strengthen the credibility of the judicial discourse. It therefore appears appropriate to insist: the recognition of an intrinsic probative force for an amicable survey carried out in an adversarial manner must be recognized and defended, particularly regarding surveys conducted in the context of maritime insurance.