Ferguson et Al v Caribbean Development (Antigua) Ltd Trading as Jolly Harbour Marina
| Jurisdiction | Antigua and Barbuda |
| Judge | Thomas J |
| Judgment Date | 03 May 2007 |
| Neutral Citation | AG 2007 HC 19 |
| Docket Number | ANUHCV 0023 of 2000 |
| Court | High Court (Antigua) |
| Date | 03 May 2007 |
High Court
Thomas, J.
ANUHCV 0023 of 2000
Mr. Gerald Watt Q.C. and with him Dr. David Dorsett for the claimants
Mr. Sydney Christian Q.C. and with him Mr. Vernon Tomlinson for the defendant
Damages - Contract for storage of vessel — Claim for breach of contract and negligence in the alternative — Bailment — Duty on bailee to exercise reasonable care — Vessel damages as a result of improper storage during a hurricane — Counterclaim by defendant for trespass and storage fees — Defendant liable for negligence and breach of contract — Special damages of EC$395,096.98 awarded — general damages awarded of $ 106,650.00 — Counterclaim for storage fees allowed — Defendant awarded EC $202.50.
On 11 th January 2000 the claimants filed a writ of summons indorsed with a statement of claim.
The claimants claim against the defendant is for damages for breach of an agreement to haul and safely store the claimant's yacht “Moonshine” at their boatyard at Jolly Harbour Marina in the Parish of St Mary's in the State of Antigua and Barbuda, and which agreement was made between the parties on 14 th June 1999.
In the alternative the claimants are seeking damages for loss of and/or damage to the claimant's yacht “Moonshine” caused by the negligence of the defendant their servants or agents in the transporting of the said yacht by travel lift from one area of the boatyard to another and for the negligent storage of the said yacht in an area outside of the boatyard, and in a trench dug in reclaimed land fill, unsuitable for the purpose of storing the said yacht.
The claimants are also seeking interests, costs and such further or other relief as the court may deem fit.
In their statement of claim the claimants contend that at all material times they were the owners of the yacht known as “Moonshine”. It is also the claimants' contention that the defendant was at all material times a company registered under the Laws of Antigua and Barbuda, and carrying on business as a marine boat repairs and boat storage facility situate at Jolly Harbour.
At paragraph 3 of the statement of claim the claimants aver that on 14 th June 1999 they entered into a written agreement with the defendants whereby the defendants would haul and store the said “Moonshine” in a keel hole known as “painters trench” in the boatyard of the defendants to abide the passage of hurricane “Lenny”. According to the claimant it was an implied term of the contract that the defendants, whether by themselves their servants and/or agents would take all necessary steps to properly/safely store the Moonshine to abide the said hurricane “Lenny”.
At paragraphs 6 to 10 of the statement of claim the following is pleaded:
“6. In breach of the aforesaid agreement and contrary to the defendant manager's expressed undertaking, the defendants by themselves, their servants and/or agents hauled “Moonshine” over soft ground by way of a travel-lift for storage in a satellite yard approximately 500 yards from the main boat yard, and stored Moonshine in a trench which was wholly unsuitable for its safe/proper storage, as a consequence of which Moonshine sustained damage.
7. The said travel-lift sunk and stuck fast in the soft ground over which Moonshine was conveyed, and the defendant well knew that was the probable result of such conveyance.
8. The defendant by its servants and/or agents employed the use of a backhoe to yank and pull the travel-lift from the soft ground, and so to dislodge it and as a consequence of which Moonshine, also sustained damage.
9. The plaintiff relied on the competence and experience of the defendant company management and personnel.
10. Further or in the alternative the matters complained of were caused by the negligence of the defendants, their servants or agents”.
The particulars of negligence and/or breach of contract pleaded as well as particulars of damage to the hull, starboard side, portside, rig, sundeck, and soft furnishings.
Damages in the amount of EC$793,015.90 are claimed plus interest thereon pursuant to section 27 of the Eastern Caribbean Supreme court Act, Cap. 143.
On 27 th July 2000 the defendants filed an amended defence.
With respect to the ownership of the “Moonshine” as pleaded by the claimants, no admission is made. It is however admitted by the defendant that it carried on business as pleaded by the claimants.
At paragraph 3 of its amended defence the defendant's averment is that an agreement was made on or about 14 th June, 1999 to haul and store the claimant's vessel in a “keel hole” and there was no agreement to store the said vessel in the main boatyard and/or in a keel hole known as “painters Trent” to abide the passage of hurricane Lenny or otherwise. It is the further averment of the defendant that it will contend that it was agreed to store the vessel in a “keel hole” or in any of its storage areas subject to the availability of space.
With respect to the negligence as pleaded by the claimants at paragraphs 3, 5 and 6 of their statement of claim, the following admission is made by the defendants at paragraph 5 of the amended defence:
“5. Save that the defendant admits that during the transportation of the vessel to the satellites area the defendant's travel lift became embedded in the ground, the defendant denies that the vessel was negligently transported as a result thereof or stored in a manner unsuitable for storing the vessel as alleged in paragraphs 6, 7, 8 9 and 10 and all the particulars therein of the statement of claim, all due care having been taken by the defendant to properly secure the vessel in proper slings and to remove the travel lift from the area in which it became embedded with reasonable care and skill and without causing any damage to the plaintiffs' vessel”.
In so far as loss and damage are concerned, the defendant denies that they were caused by its negligence and contends further that any loss or damage were caused without any negligence or default on its part. It is further contended that any damage caused to the claimants' vessel was caused by the heavy weather encountered during hurricanes Jose and Lenny, relative to the age and the existing condition of said vessel.
At paragraphs 9 and 12 of its defence the following averments is set out:
“9. The defendant further contends that it was an express term of the agreement to store the vessel that the vessel be moved, stored and kept at the sole risk of the plaintiff and that it was the duty of the plaintiff to keep the vessel adequately insured against all risks, including hurricane risk which the plaintiff failed to do.
12. Further, or in the alternative, if the defendant is held liable for any sums herein the defendant seeks set off against the [claimants] claim the sums counterclaimed in diminution or extrication thereof”.
The defendant's counterclaim is centered on the question of the claimant's vessel on its premises beyond the agreed storage period up to and no later than 30 th April 2000.
At paragraphs (8) to (11) of the counterclaim the defendant pleads the following:
“(8) On or about May 2000, the plaintiff left Antigua without informing the defendant and/or removing the vessel, leaving the vessel on the defendant's premises unsupervised and in a state of repair, prior to the commencement of the hurricane season.
(9) Notwithstanding the allegations made by the plaintiff as to the defendant's negligence, which the defendant has denied in the defence filed herein, and notwithstanding the defendant's demands that the plaintiff should remove the vessel to enable it complete the works in the satellite area, the plaintiff has failed and/or refused to remove the vessel from the defendant's premises.
(10) The works partially carried out on the plaintiffs' vessel and the wooden scaffolding erected around the same constitute a hazard in the area in the event of a hurricane and furthermore, the plaintiff has failed, notwithstanding that hurricane season has commenced, to provide the defendant with evidence of hurricane insurance.
(11) In order to mitigate its damages, the defendant has carried out re-surfacing works in part of the satellite storage area only. However in view of the plaintiffs' failure to remove the vessel from its premises, further to the termination of its storage agreement, the defendant has been unable to carry out and complete the re-surfacing works in that area in which the plaintiffs' vessel is stored.
As a result thereof, the defendant has suffered loss and damage”.
The particulars of the loss and damage pleaded are:
- Estimated costs of carrying out additional works in the future, to res-surface the area in which the plaintiffs' vessel is stored amounting to EC$9,720.00 2. Loss of revenue in respect of the storage space occupied by the plaintiffs vessel at US$7,50 per month from 30th April, 2000 until such date as the defendant is granted orders that the vessel be removed.
The defendant's counterclaim is for:
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(1) An order that the plaintiff remove the vessel from the defendant's premises.
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(2) Damages
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(3) Interest thereon pursuant to S.27 of the Eastern Caribbean Supreme court Act, Cap. 143.
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(4) Costs.
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(5) Such further or other relief as the court may deem fit,
The claimants' reply to the amended defence and counterclaim was filed on 16 th October 2000. In it the claimants join issue with the defendants on paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of their defence, save in so far as the same consists of admissions.
As regards the matter of the removal of the yacht from the satellite yard to the main boatyard the claimants contend that a request in...
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