client's approval of fabrication drawings 12

[etrobal]

gentlemen,

prior to the start of the fabrication or manufacturing of separators, tanks, through conduit valves, hot well pumps, for power plants and other mechanical items, we require the fabricator to submit detailed fabrication drawings, for our approval.

in the course of our approval, we stamp the drawings with: "APPROVAL OF THIS DOCUMENT DOES NOT RELIEVE THE CONTRACTOR OF ITS RESPONSIBILITY UNDER THIS CONTRACT."

in case of a fatal flaw, we were advised that this notation does not hold water in an international court of justice, or court of arbitration.

how can we revise this to indicate that we hold the designer/manufacturer/fabricator responsible for any fatal flaws.

note that in all our biddings, where available, we require ASME stamps, API monograms or its equivalent, if available, in JIS, DIN, ISO or any acceptable equivalent international standard.

basis of design is also provided to the bidders as B31.1, B31.3, ASME VIII, as the case maybe, as reference to our requirements.

it goes without saying that tests required by the standards must be performed.

many thanks in advance.
positive or negative comments are most welcome. it balances my outlook on the problem at hand.

 

[whammett]

Legally, I do not see how that could not hold up in court, but I have an engineering degree not a juris doctorate, so...

Maybe the fact that its stamped, and they have not actually signed a contract?

In any case, IF there is no way to hold them legally liable, your only saving grace is to have someone in house double check the fabrication documents for flaws.

"Scientists dream about doing great things. Engineers do them." -James Michener

 

[desertfox]

Hi etrobal

I always thought checking and approval were different ie:- If you check a design then to me you go through all the calculations, drawings and tolerance stacks, now I can accept that I am responsible for the design.
If I approve a design I take that to mean:- someone is designing/manufacturing a bicycle for my client it will have two wheels, brakes etc, I can approve the design but without checking all the calculations and drawings how can I be responsible for it.
Maybe your company lawyer can advise how to change the stamp, or can a clause be written into a contract which makes your sub contractor solely liable.

desertfox

 

[EngineerTex]

On a side note, this is why every country (and state here in the U.S.) should have a Citizens' Review Board (CRB) where lawyers and judges can be disbarred or unseated when they have overstepped their bounds or filed frivolous lawsuits. The beauty of the CRB is that no citizen with a law degree would be allowed to serve and the lawyers and judges don't even need to show up for the proceedings. The CRB simply reviews existing court documents and throws people out of the legal profession who have betrayed the public trust. Obviously, lawyers acting in defense would be exempted. The CRB would reinforce the notion that passing the bar is not a license to steal from productive members of society.

That being said, and on to the question at hand, I would ask who told you that this wouldn't stand up in court? They may be correct, but they should also be able to tell you why it wouldn't, citing precedence.

However, I really believe that you should talk to an attorney in a firm which represents both plaintiffs AND defendants in these exact types of cases. It seems that your entire livelihood hinges on precise wording of one single sentence. I don't think that's the time to try to save on consultant fees.

Furthermore, you should also talk with your insurance company. Specifically, speak with their legal department and ask for help with how to cover yourself and minimize liability in these cases. It seems to me that any insurance company that provides engineering liability coverage should be very interested in helping you save your neck and their own.

Engineering is not the science behind building. It is the science behind not building.

 

[MiketheEngineer]

You are asking a bunch of engineers a legal question - call your lawyer...

 

[drawoh]

etrobal,

I am yet another person in this forum who is not a lawyer. What gives?

I have seen some articles on hiking and other outdoor activities, and liability waivers. Waivers actually hold up in court, at least here in Canada, if they are written clearly, and carefully explained to the other person. If they are written in Latin in four point type and not explained, they don't hold up. In summary, I offer to take you scuba diving after you agree to not hold me responsible for any accidents, even if I cause them.

Your stamp is applied to your drawings, possibly by some clerical level employee who is mindlessly following procedure. The customer's technical clerk accepts the prints and tells his boss that you have approved everything. If your waiver is perceived as legalistic BS, and no one pays attention. Your clerks and your vendor's clerks are not lawyers for some reason.

You could instruct your courier to deliver the prints directly to the relevant manager, and have them read out the waiver before handing anything over. This all could make you look like an idiot. You know your vendors. I don't

If you want your vendor to be responsible for the stuff they do, you need to get your lawyer to write up a contract that clearly assigns rights and responsibilities.

JHG

 

[KENAT]

"we were advised that this notation does not hold water in an international court of justice, or court of arbitration" then perhaps ask whoever told you this what it should say.

As Mike said, sounds like a question for a Lawyer.

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[JStephen]

From reading your post, I'm not sure just what responsibility you're referring to. You mention "responsibility under the contract" in the stamp wording, but then "responsibility for fatal flaws" below that. Are you trying to make the fabricator liable for accidents that might happen? Or just responsible to do the work per the contract?

 

[micalbrch]

I agree with all other answers to your post but as you asked for negative or positive feedback I dare to do it.

I work in most cases on the supplier side and I hate clients who want to have everything approved, want design calculations, take 6 weeks time till they approve it (delivery date is of course not affected by this) and then stamp or sign it with a sentence that means more or less "Whatever I checked and approved does not matter. If I made a mistake, it would not release you from your responsibility." Especially consultants like to do that.

I think a client (or a consultant) is responsible for what he approves. If I submit a drawing that includes all required dimensions and get it approved, it will not be my fault in case it will not fit.

Just my thoughts - you asked for it.

 

[BrianPetersen]

^ I am with the above. If you are not going to assume at least some responsibility by going through an approval and drawing-stamping process, then why have that approval and drawing-stamping process at all? What's the purpose of approving the shop drawings?

 

[desertfox]

Well look at it another way, you pay somebody to design and build something for you, now you might wish to look at the drawing of the finished article whatever it might be before manufacture, now in service it fails because of a design fault how can the person who looked at the drawing be liable when he was the one who paid a company to use their expertise and design and build it in the first place.


desertfox

 

[MintJulep]

Very often a vendor will submit nothing more than an "outline" drawing, or an "interface" drawing, showing little more than the overall dimensions, and locations of interfaces.

If I "approve" this (worthless) drawing, I have not approved the design. I have not been presented with sufficient detailed design information to judge if the design will actually work.

If I ask for more information about the design vendors will say "propitiatory", or "it's our standard design".

Then it gets installed and something doesn't work the way it is supposed to work as required by the contract or specification.

Without fail, a vendor's first response is "well you approved the drawing that we submitted."

This is why "approved" stamps have language like this on them.

It's the vendor's responsibility to comply with the specification and contract and provide something that is in compliance. The client's "approval" of a few pitiful drawings or other scraps of information does not relieve the vendor of his responsibility.

 

[msquared48]

If you are worried about international law, you need to engage an attorney versed in this field. As your firm obviously does a lot of projects, this could substantially decrease your firms exposure to litigation. You may also consult with your E& O insurer.

Mike McCann
MMC Engineering
Motto: KISS
Motivation: Don't ask

 

[micalbrch]

desertfox and MintJulep: You are right. You cannot be responsible for a fabrication fault. That's the vendor's issue. But you must be responsible for what you approve (dimensions for example). I have seen pretty often that clients or consultants even take exeption of that by using some legal phrases.

The fact that vendors do not want to present all their engineering knowledge and detailed drawings is understandable. For the next job you buy from somebody else and I as the previous vendor must be afraid that my knowledge is passed to my competitor. You get my machine. If you want, you can dismantle it and measure everything and make material analysis. But I do not have to help you with that.

 

[VerneE]

Here are some phrases on "approval" stamps I have seen. In some cases they call it a "review" not an approval. it depends on how strongly you want to avoid being held liable if a problem turns up later:

Approval is only for conformance with the design concept of the Project and compliance with the information given in the Contract Documents. Contractor is responsible for all dimensions, quantities and performance requirements to be confirmed and correlated at the job site; for all information that pertains solely to the fabrication processes or to techniques of construction; for all coordination of the work of all trades; and for assuring consistency with the Contract Documents.
Approval of drawings or items does not relieve the Contractor of the responsibility for complying with all requirements of the Contract Documents.

The Owner’s approval of the Fabricator’s Shop Detail Drawings is a verification that the drawings appear to be consistent with the Contract documents. “Approval” does not relieve the Fabricator of the responsibility for the accuracy of dimensions on Shop Detail Drawings nor for complete submittals satisfying applicable Contract requirements, nor does it permit deviations from the Contract without the Owner’s documented consent.

Reviewed for conformance with general design intent of contract documents. Approval in no way relieves contractor of responsibility for dimensions, quantities, coordination, scheduling, or special job conditions. Contractor’s submission for approval represents contractor’s acceptance of responsibility, unless written notification of discrepancies is made prior to approval of correction.

 

[IFRs]

I think you should state what you are approving, not what you are not. Something like "These drawings have been reviewed for overall size, orientation and required features." Unless, of course, you are reviewing for code compliance, safety, material selection, etc - then include those items that you are competent in and have indeed reviewed and can take responsibility for.

 

[Ron]

While it's good advice to seek a lawyer's opinion on something like this, you have to understand that most attorneys do not deal with shop drawing or fabrication drawing approvals on a routine basis. Many of them have screwed it up. Opinions and case law are available on both sides of this one.

Keep in mind that in some cases, stamping a shop drawing in a certain way could be construed as a contractual change. You don't want to be in that position.

It is better if such items are covered in your contract. For instance, you could have a clause in the contract that states that fabrication drawings must be submitted for conceptual review consistent with the contract terms, but that such review is not intended to dictate the fabricator's means and methods, nor does such review relieve the fabricator from compliance with any or all terms of the contract.

If you don't cover such items in the contract, then it is up to someone (judge, jury, lawyer, arbitration panel, etc.) to interpret the intent of the contract. That's known as being outside the "four corners of the document". When that happens you leave your fate to others, who might not interpret the provisions of the contract in the manner in which you intended.

Get a lawyer, but get one who has experience in the shop/fabrication drawing approval process.

 

[zeusfaber]

The reference to an "International Court of Justice" in the OP strikes me as a bit odd and risks leading you astray.

My understanding is that international bodies like the ICJ and the ICCt aren't likely to be interested in your case unless either it's a state on state spat, or you as an individual have been engaged in something very much worse than not checking your drawings properly.

Once you start dealing overseas, your real problem is that you open yourself up to action in all sorts of jurisdictions - each of which has its own set of rules - and the potential plantiff gets to pick the jurisdiction that gives their action the best chance of success.

Drawoh has already pointed out that waivers can be made to stick under Canadian law: In English law, they can't - at least not where death or personal injury is concerned. Some European jurisdictions take a "Strict Liability" approach, which is even more interesting.

The message is a bit the same as everybody else's: You need to talk to a good lawyer, but not just one who understands drawings - you need one who understands the jurisdictions you're buying and selling in (and every time you start in another country, you need to consider another trip to the lawyer).

A.

 

[etrobal]

gentlemen,
thank you very much.

let me explain further how this came about.
our consultant, obviously not a laywer, did advise that the stamp does not hold water in a court of arbitration, in case of a fatal flow.

having written that, i get the impression here that a technical lawyer, somebody who has a degree in engineering as well, is the man of the hour.

allow me to cite an example:
we bided out a 150mw power plant, an epc contract. we required the winning bidder to submit all documents, from p&id's, fab drawings of pumps, gensets, valves, towers, tanks, fire equipment, piping stress results, foundation design and calculations, the works. i hope this will not muddle the issue but we did have consultants looking into the documents, hand in hand, over our shoulders for the rest of the project duration, until start up, commissioning and turn over. but, but, they did not sign any stamp of approval, we did. we were tasked to review and provide our stamp, herein being discussed, and sign the documents. the contractor cannot proceed with the fabrication or erection thereof without the stamp. now, what if a fatal flow occurs, rendering a total plant shutdown, or worse, loss of lives? can we go after the power plant designers and their subcontractors?

then the new consultants for another 100 mw power project arrived. they did not offer much of an alternative on that stamp after their comment. but i'd rather read posts here first, before i go back and discuss this stamp with the new arrivals, with, as per advises here, our insurers, our inhouse legal team and a thorough overhaul of the contract documents.

all the replies were quite enlightening, indeed. allow me to clarify my request for a negative feedback, this was not a dare (i always request that in my posts), but then again, thanks for that, sir micalbrch. appreciate it very much.

again, it was an enlightening reading.
thank you very much indeed.
i look forward to my next question.
God bless.

 

[sheiko]

Check the "split of responsability matrix" in your Engineering Execution Plan.

"We don't believe things because they are true, things are true because we believe them."