George v Coastal Marine 2004 Ltd (t/a Mashfords), Court of Appeal - Admiralty Division, April 21, 2009, [2009] EWHC 816 (Admlty)

Resolution Date:April 21, 2009
Issuing Organization:Admiralty Division
Actores:George v Coastal Marine 2004 Ltd (t/a Mashfords)
 
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Neutral Citation Number: [2009] EWHC 816 (Admlty)Case No: 2008 Folio 176IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONADMIRALTY COURTRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 21st April 2009Before :MRS JUSTICE GLOSTER, DBE- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Tom Whitehead Esq (instructed by Ashfords) for the ClaimantJames Watthey Esq (instructed by Hill Dickinson LLP) for the DefendantHearing dates: 10th, 11th and 12th November 2008; written closing submissions received 8th December 2008- - - - - - - - - - - - - - - - - - - - -JudgmentMrs Justice Gloster, DBE:Preliminary1. This is a claim arising out of damage sustained by the motor vessel ``Bon Ami'' (``the Vessel'') during the weekend of 6 to 8 May 2005, when she ``grounded hollow'' in a tidal berth (``layerage 3'') at a shipyard at Cremmyl in Cornwall belonging to the defendant, Coastal Marine 2004 Limited, which traded under the name ``Mashfords'' (``the Yard''). 2. The Vessel, which was built in 1958, is a Scottish drifter, motor driven and of wooden construction. She is a former merchant fishing vessel with a registered length of 21.3m, an overall length of 21.74 and length between perpendiculars of 20m. She was purchased by the claimant, Christopher Martin Lee George (``the Claimant'') in December 1999. At the time of the incident giving rise to this claim, he was in the process of converting the Vessel so as to enable him to charter her out for fishing and recreational trips from Plymouth.3. The Vessel has a wooden hull, protected by a metal strip, known as the keel band. The keel itself is structural; the keel band is not. It serves merely to protect the keel when the Vessel takes ground on berthing. A wooden vessel ``grounds hollow'' if it rests on the sea-bed when the tide falls, but does so in such a way that the flat keel does not rest evenly along the layerage bed. In such a case, only part of the length of the flat keel band is supported, and there will be a gap, or hollow, between the unsupported length of the keel band and the layerage bed itself. It was common ground between the experts and the parties that, if a vessel grounds hollow, it may twist and distort, because the weight pressing down on the keel will not be evenly distributed, and damage may consequently occur. 4. It was common ground that, in this case, after the Vessel had moored in layerage 3 at approximately 5.30 pm on Friday, 6 May 2005, the Vessel's flat keel band did indeed subsequently ground hollow. That was because, when the tide went out, during the night of the 6-7 May, and the Vessel took the ground, at approximately an hour before low tide at 11.47 pm, its flat keel band would have spanned a 9.2m change in gradient on the sea bed of the layerage and thus would have been unsupported for a significant part of its length. It was also agreed that this was an unsatisfactory situation which could lead to the damage to the Vessel's hull, once the ground had been taken at low water.5. It was also common ground:i) that it was not possible for the Vessel to lie at layerage 3 without taking ground at low water; ii) that the Claimant wanted the Vessel to take ground at low water so that it would dry out, and so that the hull could be pressure-washed and anti-fouling paint applied; andiii) that layerage 3 extended beyond the length of its adjoining quay wall, which was referred to as ``the Coal Quay''; this was in contrast to layerages 1 and 2 at the Yard, where the respective adjoining quay walls were longer than the Coal Quay, and where the marked layerages did not extend beyond the quay walls.6. The Claimant contends that the Vessel grounded hollow because, in breach of contract and/or its duty of care, the Yard failed to provide him with a safe berth. He contends that, had a safe berth been provided, the Vessel would not have grounded hollow. The Claimant says that layerage 3 was unsafe because of the increase in the gradient of the beach at the landward end and because of some alleged unevenness and debris on the bed of the layerage. At trial he also contended that layerage 3 was unsafe because of the short length of the Coal Quay wall.7. In his Particulars of Claim he sought damages totalling £133,146.50, but that was reduced at trial to £87,949, made up as follows:i) the cost of repairs carried out to date in the sum of £37,720;ii) the cost of repairs still to be carried out, estimated at £24,000; iii) slippage fees in the sum of £4,207;iv) lay up costs in the sum of £3,510; v) fuel in the sum of £512; vi) alleged loss of charter income in the sum of £18,000; this was amended at trial to plead loss of use in the alternative; the figure claimed was £17,850 and continuing, by reference to interest at 7% per annum on the agreed capital value of the Vessel of £85,000.8. The Yard denied liability on the various bases set out in its defence. In particular, it contended that:i) the only ``danger'' in layerage 3 was the increase in the gradient of the beach about 9.2m from the landward end; it was perfectly safe as long as the Vessel was placed sufficiently to seaward;ii) the Yard's staff gave clear instructions where to place the Vessel within layerage 3 to avoid her settling onto the berth with her keel straddling the increase in gradient and therefore with part of her keel unsupported (i.e. to avoid grounding hollow); in particular, the Yard contended that it instructed the Claimant to move the Vessel 12 feet astern from the original position where the Claimant had moored her;iii) the Claimant rejected those instructions and placed the Vessel too far to landward with the result that it grounded hollow and suffered damage. 9. As to the pleaded losses, the Yard's position was as follows: i) cost of repairs: that not all the repairs were necessary to restore the Vessel to its pre-incident condition; that the proper cost of repairs was £29,500 as agreed by the Claimant's own insurers;ii) further repairs: that the additional sum of £24,000 in relation to repairs still to be completed, represented a combination of betterment, investigation and proposed repairs which were not necessary;iii) slippage fees: that these costs were too high due to the Claimant's unreasonable decision to use Serco at HM Naval Base Devonport;iv) lay up costs: that this head of claim was unsustainable as being either based on the Claimant's own time, or relating to expenditure that would have been incurred in any event; further the claim was effectively withdrawn at trial;v) fuel: these charges were too high;vi) alleged loss of charter income in the sum of £18,000 or loss of use in the alternative by reference to the capital value of the Vessel: there was no sustainable evidence of loss of charter income and that claim was entirely speculative; as to the alternative loss of use claim, based on the capital value over time, that was accepted to be the right measure of loss but the rate of interest should be 1% above Bank of England base rate, and the court should allow interest only for the limited time for which it was reasonable to wait for repairs, i.e. until the Claimant's own underwriters approved their execution. The parties' submissions as to the nature and scope of the Yard's duties in contract and tort10. The following facts were common ground. By an oral contract made on or around 26 April 2005, the Yard (by Richard Porter, the General Manager at the Yard) agreed that the Claimant could moor the Vessel alongside a quay or beach wall at the Yard, in a tidal berth, or layerage, at which the Vessel could take the ground at low water and dry out so as to permit (i) pressure washing of her hull and (ii) the application of anti-fouling paint. The Claimant wanted to moor at layerage 1, alongside the Yard's east quay, having moored there previously. Mr. Richard Porter agreed to this, in the knowledge of the purpose for which the Claimant wished to use the layerage. The Claimant visited the Yard on 5 May to check that arrangements were in hand and to look at layerage 1, it being his practice to inspect berths at which the Vessel was to moor. On the morning of 6 May 2005, Mr. Richard Porter telephoned the Claimant to inform him that layerage 1 was unexpectedly unavailable because two fishing boats had arrived overnight and moored on the berth. Mr. Richard Porter had tried to contact the skippers of the boats, but had been unable to clear the berth. Mr. Richard Porter duly offered the Claimant the options of rescheduling the appointment or taking a berth at layerage 3, alongside another quay. The Claimant chose the latter. He had not previously moored there or inspected the layerage bed at low tide. Where the Claimant in fact moored the Vessel, alongside the quay at layerage 3, she did not lie safely aground, but grounded hollow. After the incident, and the damage to the Vessel, the Yard did not charge the Claimant for the berthing fees.11. There was some dispute about precisely what was said when layerage 3 was offered to the Claimant in place of layerage 1. I find that on the balance of probabilities the gist of what was said (and not said) was as follows:i) Mr. Richard Porter told the Claimant that layerage 3 was ``less suitable'' than layerage 1 because the quay wall was shorter, but that, nonetheless, the berth was big enough to take the Vessel:ii) Mr. Richard Porter did not tell the Claimant about the existence of the change in gradient, at the beach end of the layerage, although Mr. Richard Porter had this point in mind, when he said that the berth was less suitable; I accept that he considered that it was not necessary to mention the change in gradient because he considered that there was no way in which he would have let a vessel be moored so as to straddle it;iii) despite the indication that layerage 3 was less suitable than layerage 1...

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