S 0808 General Bill, By McConnell, Elliott and Ford
 A BILL TO AMEND CHAPTER 23, TITLE 50, CODE OF LAWS OF SOUTH CAROLINA, 1976,
 RELATING TO WATERCRAFT AND OUTBOARD MOTORS, BY ADDING ARTICLE 5 SO AS TO
 PROVIDE ADDITIONAL "LEMON LAW" REMEDIES FOR THE ENFORCEMENT OF WARRANTIES ON
 SAILBOATS, BOATS, MOTORS, TRAILERS, ASSOCIATED EQUIPMENT, COMPONENTS, OR
 PARTS, TO PROVIDE THAT, IF THE SELLER OR MANUFACTURER IS UNABLE TO CONFORM A
 SAILBOAT, BOAT, MOTOR, TRAILER, ASSOCIATED EQUIPMENT, COMPONENT, OR PART TO AN
 EXPRESS WARRANTY WITHIN A SPECIFIED PERIOD AFTER NOTICE OF A DEFECT,
 CONDITION, OR NONCONFORMITY, THE SELLER OR MANUFACTURER, AT THE OPTION OF THE
 CONSUMER, MUST REPLACE THE SAILBOAT, BOAT, MOTOR, TRAILER, ASSOCIATED
 EQUIPMENT, COMPONENT, OR PART WITH A COMPARABLE SAILBOAT, BOAT, MOTOR,
 TRAILER, ASSOCIATED EQUIPMENT, COMPONENT, OR PART OR ACCEPT RETURN OF THE
 SAILBOAT, BOAT, MOTOR, TRAILER, ASSOCIATED EQUIPMENT, COMPONENT, OR PART AND
 REFUND THE FULL PURCHASE PRICE TO THE CONSUMER, INCLUDING COLLATERAL CHARGES,
 AND TO PROVIDE OTHER PROVISIONS FOR THE ENFORCEMENT OF WARRANTIES ON
 SAILBOATS, BOATS, MOTORS, TRAILERS, ASSOCIATED EQUIPMENT, COMPONENTS, AND
 PARTS.

   12/12/01  Senate Prefiled
   12/12/01  Senate Referred to Committee on Fish, Game and Forestry
   01/08/02  Senate Introduced and read first time SJ-32
   01/08/02  Senate Referred to Committee on Fish, Game and Forestry SJ-32

TO AMEND CHAPTER 23, TITLE 50, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO WATERCRAFT AND OUTBOARD MOTORS, BY ADDING ARTICLE 5 SO AS TO PROVIDE ADDITIONAL "LEMON LAW" REMEDIES FOR THE ENFORCEMENT OF WARRANTIES ON SAILBOATS, BOATS, MOTORS, TRAILERS, ASSOCIATED EQUIPMENT, COMPONENTS, OR PARTS, TO PROVIDE THAT, IF THE SELLER OR MANUFACTURER IS UNABLE TO CONFORM A SAILBOAT, BOAT, MOTOR, TRAILER, ASSOCIATED EQUIPMENT, COMPONENT, OR PART TO AN EXPRESS WARRANTY WITHIN A SPECIFIED PERIOD AFTER NOTICE OF A DEFECT, CONDITION, OR NONCONFORMITY, THE SELLER OR MANUFACTURER, AT THE OPTION OF THE CONSUMER, MUST REPLACE THE SAILBOAT, BOAT, MOTOR, TRAILER, ASSOCIATED EQUIPMENT, COMPONENT, OR PART WITH A COMPARABLE SAILBOAT, BOAT, MOTOR, TRAILER, ASSOCIATED EQUIPMENT, COMPONENT, OR PART OR ACCEPT RETURN OF THE SAILBOAT, BOAT, MOTOR, TRAILER, ASSOCIATED EQUIPMENT, COMPONENT, OR PART AND REFUND THE FULL PURCHASE PRICE TO THE CONSUMER, INCLUDING COLLATERAL CHARGES, AND TO PROVIDE OTHER PROVISIONS FOR THE ENFORCEMENT OF WARRANTIES ON SAILBOATS, BOATS, MOTORS, TRAILERS, ASSOCIATED EQUIPMENT, COMPONENTS, AND PARTS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Chapter 23, Title 50 of the 1976 Code is amended by adding:

Section 50-23-510. For purposes of this article:

(1) 'Associated equipment' means:

(a) a system, component, or part of a sailboat, boat, motor, or trailer as originally manufactured or a similar component or part manufactured or sold for replacement, repair, or improvement of the system, component, or part;

(b) an accessory or equipment for, or appurtenance to, a sailboat, boat, or trailer, including marine radio and navigational equipment sold as an accessory or equipment for a sailboat or boat;

(c) a marine safety article, accessory, or equipment intended for use by a person on board a sailboat or boat.

(2) 'Boat' means a sailboat, motorboat, or any other waterborne craft or vessel used or capable of being used for transportation or to navigate on water. 'Boat' does not mean or include a seaplane on water, jet or water skis, aquaplanes, surfboards, rowboats, canoes, kayaks, or other similar towed or hand-propelled devices.

(3) 'Boat trailer' or 'trailer' means a wheeled, tongue and axel vehicle designed to hold, carry, haul, or transport a boat when towed by a motor vehicle, truck, tractor, or similar motorized towing equipment.

(4) 'Consumer' means the purchaser, other than for purposes of resale, of a boat that is subject to a warranty and a person to whom ownership of a legal or equitable interest or lawful possession of a boat is transferred during the duration of an express warranty applicable to the boat and any other person entitled by the terms of a warranty to enforce the obligations of the warranty.

(5) 'Express warranty' means:

(a) a written affirmation of fact or written promise made in connection with the sale of a sailboat, boat, motor, trailer, associated equipment, component, or part of a boat, motor, trailer, or associated equipment, component, or part by a supplier to a consumer which relates to the nature of the material or workmanship and affirms or promises that the material or workmanship is defect free or will meet a specified level of performance over a specified period of time;

(b) an undertaking in writing in connection with the sale by a supplier of a sailboat, boat, motor, trailer, associated equipment, component, or part of a sailboat, boat, motor, trailer, or associated equipment, component, or part to refund, repair, replace, or take other remedial action with respect to the sailboat, boat, motor, trailer, associated equipment, component, or part in the event that the sailboat, boat, motor, trailer, associated equipment, component, or part fails to meet the specifications set forth in the undertaking, which written affirmation, promise, or undertaking is furnished to the consumer at or near the time of purchase; and

(c) any other warranty created by the overt words or actions of the seller in connection with the sale of a sailboat, boat, motor, trailer, associated equipment, component, or part of a sailboat, boat, motor, trailer, or associated equipment.

(6) 'Inboard motor' means a built-in, self-contained internal combustion propulsion system, including its fuel supply, which is used to propel a boat and which is not detachable as a unit from the boat.

(7) 'Implied warranty' means the Uniform Commercial Code implied warranties of fitness for a particular purpose, of habitability, if applicable, of merchantability, and the implied warranties of good faith and fair dealing, and any other implied warranty arising by operation of law because of the circumstances of sale, rather than by the seller's express promise.

(8) 'Motor' means any machinery or mechanical device that induces or imparts motion including, but not limited to, turbines, inboard motors, outboard motors, or other self-contained internal combustion, steam, electrical, or other mechanical propulsion systems designed to propel a boat on or across water.

(9) 'Motorboat' means every sailboat, boat, watercraft, or vessel, other than a seaplane on water, that is propelled or designed to be propelled on water by a motor, machinery, or one or more mechanical devices that induce or impart motion, regardless of whether the motor, machinery, or mechanical device is permanently or temporarily affixed or is the principal source of propulsion.

(10) 'Outboard motor' means any self-contained internal combustion propulsion system, excluding its fuel supply, which is used to propel a boat and which is detachable as a unit from the boat.

(11) 'Sailboat' means a boat, vessel, or watercraft designed to be primarily propelled by wind and sail, and includes sailboats equipped with a motor as an alternative source of propulsion.

(12) 'Supplier' means any person engaged in the business of making a sailboat, boat, motor, trailer, associated equipment, component, or part directly or indirectly available to consumers and includes the seller, manufacturer, distributor, or dealer of a sailboat, boat, motor, trailer, associated equipment, components, or parts.

(13) 'Warranty' means any express or implied warranty.

Section 50-23-520. (A) If a new sailboat, boat, motor, trailer, associated equipment, component, or part does not conform to all applicable express warranties during the two-year period following the date of the original delivery of the sailboat, boat, motor, trailer, associated equipment, component, or part to the consumer, the consumer shall report the defect, condition, or nonconformity to the manufacturer, its agents, its authorized dealers, or the seller during the two-year period.

(B) If the notification of a defect, condition, or nonconformity to an express warranty is received by a manufacturer's agent, an authorized dealer, or the seller, the agent, dealer, or seller must within seven days forward written notice thereof to the manufacturer by certified mail, return receipt requested. The manufacturer, agent, authorized dealer, or seller must correct the defect, condition, or nonconformity at no charge to the consumer, notwithstanding that the repairs are or must be made after the expiration of the two-year period.

Section 50-23-530. (A) If, after a reasonable number of attempts within the time periods permitted by this article, the seller, manufacturer, its agents, or authorized dealers fail, refuse, or are unable to conform the sailboat, boat, motor, trailer, associated equipment, component, or part to an applicable express warranty by repairing or correcting any defect, condition, or nonconformity which substantially impairs the use and value of the boat to the consumer, the manufacturer, at the option of the consumer, must replace the sailboat, boat, motor, trailer, associated equipment, component, or part with a comparable sailboat, boat, motor, trailer, associated equipment, component, or part or accept return of the sailboat, boat, motor, trailer, associated equipment, component, or part from the consumer and refund to the consumer the full purchase price, including all collateral charges. The fees and charges shall include, but are not limited to, all license fees, registration fees, and any similar governmental charges, less a reasonable allowance for any damage not attributable to normal wear or improvements. Refunds must be made to the consumer, and the lienholder, if any, as their interests may appear.

(B) It is an affirmative defense to a claim under this article: that an alleged defect, condition, or nonconformity does not substantially impair the use and value of the sailboat, boat, motor, trailer, associated equipment, component, or part; or subject to subsection (C), that a defect, condition, or nonconformity is the result of abuse, neglect, unauthorized modifications, or alterations of the sailboat, boat, motor, trailer, associated equipment, component, or part by the consumer.

(C) Abuse, neglect, unauthorized modifications, or alterations of a boat, motor, trailer, associated equipment, component, or part by a consumer is not an affirmative defense to a claim under this article unless the abuse, neglect, unauthorized modifications, or alterations by the consumer caused or resulted in the defect, condition, or nonconformity for which the consumer sought repairs or correction under this article.

Section 50-23-540. (A) It may be inferred that a reasonable number of attempts have been undertaken to conform the sailboat, boat, motor, trailer, associated equipment, component, or part to the applicable express warranties, if:

(1) the same defect, condition, or nonconformity has been subject to repair three or more times by the seller, manufacturer, or authorized dealers within the two-year period specified in Section 50-23-520, but the defect, condition, or nonconformity continues to exist; or

(2) the product is out of service by reason of repair for a cumulative total of sixty or more calendar days during the two-year period specified in Section 50-23-520.

(B) The inference provided in subsection (A) that three or more repairs is a reasonable number of attempts to conform a sailboat, boat, motor, trailer, associated equipment, component, or part to the applicable express warranty does not apply, and the remedies provided in this section become immediately available to the consumer, when the consumer shows, among other matters justifying disregard of the inference, that:

(1) the seller, manufacturer, or authorized dealer has failed without reasonable excuse to correct the defect, condition, or nonconformity within two months of the date the consumer reported a defect, condition, or nonconformity subject to this article; or

(2) further attempts at repair would be futile.

Section 50-23-550. The term of an express warranty, the two-year period specified in Section 50-23-520, and the sixty-day out of service period specified in Section 50-23-540 must be extended by:

(1) a period of time during which repair services are not available to the consumer because of terrorist attack, war, invasion, strike, fire, flood, or other natural disaster; or

(2) a period of time the sailboat, boat, motor, trailer, associated equipment, component, or part is undergoing repair under this article; provided, however, that these periods shall not be extended for any period attributable to the consumer's failure to obey any reasonable instructions by the seller, manufacturer, its agent, or authorized dealer concerning delivery of the sailboat, boat, motor, trailer, associated equipment, component, or part to the seller, manufacturer, its agent, or authorized dealer for the purpose of conforming a sailboat, boat, motor, trailer, associated equipment, component, or part to a warranty or fulfilling the supplier's obligations under this article. For the purpose of this article, the period of time the sailboat, boat, motor, trailer, associated equipment, component, or part is undergoing repair means a period beginning on the date the consumer reports a defect, condition, or nonconformity to the seller, manufacturer, its agent, or authorized dealer and ending on the date any of these parties deliver the sailboat, boat, motor, trailer, associated equipment, component, or part to the consumer after attempting to correct the defect, condition, or nonconformity.

Section 50-23-560. If an action is brought against a manufacturer under this article, the manufacturer may implead the distributor, seller, authorized dealer, or any other responsible party in accordance with the law and rules of civil procedure and the impleaded party shall bear the liability as may be found by a court of competent jurisdiction.

Section 50-23-570. Notwithstanding any other provision of law, with respect to a sale of a sailboat, boat, motor, trailer, associated equipment, component, or part to a consumer, for the period of two years following the date of the original delivery of the sailboat, boat, motor, trailer, associated equipment, component, or part to the consumer, no manufacturer, seller, dealer, distributor, or any other person shall:

(1) exclude, modify, or otherwise limit any implied warranty of fitness for a particular purpose, habitability, if applicable, or merchantability or any other implied warranty; or

(2) exclude, modify, or otherwise limit any remedy provided by law, including the measure of damages available, for a breach of an implied warranty. A disclaimer, modification, or limitation in violation of this article is void and unenforceable.

Section 50-23-580. A provision in an agreement entered into by a consumer for the purchase of a new sailboat, boat, motor, trailer, associated equipment, component, or part which waives, limits, or disclaims any right or remedy provided in this article, or which includes additional cost or expense for affording the consumer any right or remedy provided in this article, is contrary to public policy, void, and unenforceable.

Section 50-23-590. (A) The rights and remedies provided in this article are cumulative and nothing in this article limits a right or remedy available to a consumer under another law.

(B) The rights and remedies provided by this article inure to a subsequent purchaser or transferee of a sailboat, boat, motor, trailer, associated equipment, component, or part.

(C) The seller of a new sailboat, boat, motor, trailer, associated equipment, component, or part must provide a notice to the original purchaser of a new boat outlining the provisions of this article and the rights and remedies provided in this article.

(D) In an action arising under this article, a court of competent jurisdiction may award costs and reasonable attorneys fees to a prevailing party."

SECTION 2. This act takes effect upon approval by the Governor.