3. Whether the plaintiff should pay the defendant on then the counter-claim or
part of it.
These issues must be determined on the evidence before turt. There are
other ther subsidiary issues also which the Court
would need to consider, such
as, the status of the Vessel and how that would affect the reasonableness
and skill with
which the defendant carried out their work on the Vessel;
also whether those who operated the Vessel after its repair exercised
due
diligence and skill, in particular, when handling its engine. All these
issues are important in determining whether
the defendant should be held
responsible for the faults subsequently experienced by the Vessel after it
left the defendant's
shipyard.
Whether there was a contract between the parties
When the plaintiff entered into the �Purchase Agreement� (Exh.1) with Mr.
Gavin at Honiara on 26 July 1989, it is clear
that the Vessel was already
lying ashore at Taroniara. The Vessel was �delivered� to the defendant for
engine fitting
and other works to be done on it. The evidence shows that the
defendant accepted to do the work requested by the plaintiff
and they did do
the works requested on the Vessel. The plaintiff paid the defendant for the
work done on the ship up
to September 1993. It was in February 1994 that the
work on the ship was completed and the plaintiff took delivery of the
Vessel. The costs of the work done on the Vessel between October 1993 and
February 1994 had yet to be paid by the plaintiff.
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There was o evidence, a binding contract between the plaintiff and thed the
defendant in this case. As agreed under that
contract, the defendant
installed the engine in the Vessel and did full body works on it. Before
delivering it to the
plaintiff, the defendant carried out tests called
�Speed Trials� to see if the works on the Vessel were properly done. The
�speed Trials� were successful and the Vessel was handed over to the
plaintiff. That was the fulfilment of the contract
for work on the part of
the defendant and for which they have been partly paid.
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The Defects
It is the case for laintiff that there were defects in functioning of
th the engine of the Vessel and that the defects
were the result of the poor
workmanship of the defendant. I do not think that there is evidence to
dispute the fact that
the engine experienced �hard start� while it was in
Honiara. A letter dated 7 March, 1994 from the Licensing Section of the
Ministry of Transport, Works & Utilities Exh. 2) confirmed this. In that
letter which was written following a survey
of the Vessel, it was noted that
the engine starting system was defective and that there were electrical
faults needed
to be rectified. It would appear that these defects were
attended to.
Sometime later the ship then made a trip to Honiara and on the wahe way, oil
leakage was discovered from the engine. When
the ship returned to Ysabel
from Honiara from this trip, the engine stopped on arrival at Ysabel. The
engine bearings
seized - up. The plaintiff ordered spare parts through the
defendant at the cost of $800.00. The spare parts arrived, but were
wrong
ones. The engine had not been fixed since then and the ship ceased operation
since then.
The evidence show that there were faults in the l�s engine. These
fau faults were found after the plaintiff took possession
of the Vessel
following its full overhaul by the defendant. The question is who is
responsible for the defect? Were they
the consequence of a poor workmanship
of the defendant? It is to those considerations that I now turn.
The case for the plaintiff is that the defects were the result of the
def defendant�s negligence or poor workmanship.
In a contract such as the one in
this case, for work to be done, one party (plaintiff) agreed to pay and the
other, (defendant)
agreed to do the work. Implied in that contractual
relationship in this case, is that the defendant would carry out the work
properly with reasonable care and skill as shipyard operator and that the
plaintiff would pay for the work done. From
the nature the business
transaction between the parties, that must be the implication which could
reasonably be inferred
in this case. See The Moorcock (1889)14 P.D.
64; [1886 - 90] All E.R. Rep. 530;
Reigate -v- Union Manufacturing Co. (Ramsbottom)
[1918] 1 K.B. 592; Shirlaw v. Southern Foundries (1926) Ltd [1939] 2
K.B 227.
he plaintiff's witness Lonsdale Bosa checked the Vessel�s el�s engine in early
1994 at Ysabel and found the timing were misplaced.
He fixed that and the
engine was working again. It was after the second trip from Honiara to
Ysabel that Mr. Bosa was
asked to check the engine again. He did and found
the gasket was in place except that it was a wrong one. This is in contrast
to Mr. Tanisapa's evidence that there was no gasket present in the engine.
George Nigiso who gave evidence for the defendant was a qual qualified engineer
who worked at the defendant�s shipyard
for 20 years. He held a 300 HIP
Engine Certificate. He certainly has had more years experience as engineer.
He supervised
the work on the plaintiff�s vessel and its engine was done
competently and found no problem at all after it was completed and
even
during and after the trial runs or �speed trials.� The engine was an old one
and despite that, the overhaul work
on it was done competently. He agreed
that there were apprentices who helped in the overhauling work, but he said
those
were under his supervision. According to him, the problem with oil
leakage could only have (sic) happened if someone opened
up that part of the
engine which could cause the seal to break. In which case a new one had to
be put in.
If therefore Mr. Tanisap no gasket in the engine and Mr. Bosa found
later on r on that there was actually one in place,
though wrong size, then the
conclusion is that someone must have done something to the engine resulting
in inserting
a gasket in that part of the engine.
We are not told exactly when were the trips to aom Ysabel and how far
apart were those trips from each other. The
Court was only told that the
first trip to Ysabel must have been in early 1994 which must be after 7th
March i.e. after
the Marine inspection in Honiara. The second trip must have
been sometimes, late March or early April 1994 since in his letter
of 4 May
1994 to the defendant's General Manager, the plaintiff was talking about
being already out of business for six
(6) weeks.
This case, however, concerns a contract the substance of which is the
provision of service by the defendant, that is,
the doing of the repair work
or overhaul on the plaintiff's vessel. In such a contractual relationship,
there must be
the implied term that defendant would carry out the service
with reasonable care and skill. The existence of such duty has
been conceded
(and in my view, rightly so) by the defendant in this case. It is however
upon the plaintiff to establish
that the work done on his vessel was done in
breach of that duty. Regard must also be taken of the status of vessel. This
was a vessel which was old and totally out of navigation. It was sold on �AS
IS AS LIES� basis. Both the body and the
engine of the vessel had had to be
completely overhauled. It had been lying ashore for sometime and had not
been in service
for quite sometime. From the Purchase Agreement (Exh. 1) it
would be safe to assume that the vessel must have been lying ashore
at
Taroniara even before 26 July 1989. Thus in a case such as this, I feel the
status of the vessel together with the
nature of the repair work and the
whole nature of the work which the defendant contracted to do are important
considerations
in determining the reasonableness of the care and skill with
which the defendants carried out their work. The burden is on
the plaintiff
to show that the status of the ship and the nature of the work to be done
were such that when the defendants
did what they contracted to do, they fell
below the standard of workmanship required of them.
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Regard muso be taken of the status of vessel. This was a vessel whic which
was old and totally out of navigation. It was
sold on �AS IS AS LIES� basis.
Both the body and the engine of the vessel had had to be completely
overhauled. It had
been lying ashore for sometime and had not been in
service for quite sometime. From the Purchase Agreement (Exh. 1) it would
be
safe to assume that the vessel must have been lying ashore at Taroniara even
before 26 July 1989. Thus in a case such
as this, I feel the status of the
vessel together with the nature of the repair work and the whole nature of
the work
which the defendant contracted to do are important considerations
in determining the reasonableness of the care and skill with
which the
defendants carried out their work. The burden is on the plaintiff to show
that the status of the ship and the
nature of the work to be done were such
that when the defendants did what they contracted to do, they fell below
that
standard.
The evidence in this case, however, ijudgement, makes the positiosition very
clear, that is to say, here was a vessel
old and in a dilapidated condition,
out of navigation and lying ashore, most likely even before the plaintiff
purchased
it; extensive body work had to be done on it; its old engine
required major overhaul; having done repairs and other extensive
work on it,
the vessel was tested and became functioning; the plaintiff took delivery of
it after it had gone through
successful �speed trials� and sailed it to
Honiara; the vessel was operated by bosun and an engineer who was then only
less than three years qualified; all the defects said to have arisen from
the vessel�s engine had only occurred after the
vessel had been successfully
tested and after the vessel was put in the charge of the plaintiff�s
employees; there were
inconsistencies in the detection of the defects,
especially, with regard to the gasket, between the plaintiff�s engineer and
Mr. Bosa who had more than 30 years� experience in marine engineering; there
is the strong inference from the evidence
that the engine had been worked on
after it left the defendants� hands; and that the plaintiff failed to take
the reasonable
step, expected of him, of taking the vessel back to the
defendants to attend to the faults, instead he allowed his own employed
engineer and other people to deal with the faults. All these factors
together with the status of the vessel itself bear
out heavily a burden on
the plaintiff of satisfying the Court that the defendants had not done their
jobs with reasonable
care and skill.
Conclusion
Unfortunately for the plaintiff, the evidence is such that the Court cannot
be satisfied that the defendants could possibly
be said to have carried out
their jobs without reasonable care and skill. The contrary is very much the
case. They had
carried out the work as contracted to do and had done so with
reasonable care and skill. I do not think it would be right to
expect the
defendant in this case to resurrect the plaintiff's old vessel into a 100%
fault - free and seaworthiness.
That being the case, the plaintiff's claim
cannot succeed and is dismissed.
The plaintiff conceded that the defendant did fr work on the ship from
m
October 1993 to February 1994. That being
so, the defendant must be paid for
the work it did. On the other hand the defendants have not disputed that the
plaintiff
ordered spare parts to the value of $800.00 and those parts had
not been used but were or are still in the possession of the
defendant. I
feel that amount must be deducted from the counter - claim amount.
There will be jut for the defendants in the Counter - claim in the sum
of $14,056.69 less $800.00. The sum payable
to the defendants is $13,256.69.
Order:
(1) Plaintiffs Claim is dismissed.
>
(2) Judgment for the defendants on the Counter-Cler-Claim in the sum of $13,
256.69 plus costs.
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(GJB
Muria)
CHIEF JUSTIJUSTICE
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