1. The
plaintiff is a chartered accountant in private practice and he is the owner of
the yacht "Striopach". She is a Countess 28 cruiser/racer, being 28 ft.
overall length and 4.04 tonnes displacement. The hull was built in 1981 by
Colvic, a well-known English manufacturer which specialises in building hulls
for completion and fitting-out by the purchasers or boat builders on their
behalf. The hull for "Striopach" was purchased from Colvic in 1981 by Mr. Tony
Kingston, a director of Kilmacsimon Boatyard Limited, Bandon, County Cork. It
is not in dispute that it was fully fitted out to a high standard at Mr.
Kingston's yard. The yacht was launched in 1985 and was used by Mr. Kingston
for cruising each season until 1991. She was maintained in excellent condition
and in that year was sold to the plaintiff for £21,750. This sum included
£750 for a rubber tender. Allowing for the cost of a mortgage,
registration and other expenses, the plaintiff's final outlay was £24,000.
He took possession of the yacht on 2nd August, 1991. Eighty Countess 28's have
been built. There are three in Ireland, including the plaintiff's yacht, and
the remainder are in the United Kingdom. Most of them are twin bilge-keelers
and the remainder are single keel boats like "Striopach". The former are
primarily intended for use in shallow waters, such as many parts of the east
coast of England. Having two keels, they are able to take the ground upright
when they dry out at low water. A disadvantage is that they are slower and
more cumbersome than the single keel models. As the main yachting centres in
the Dublin area are deep-water, bilge-keelers are of little interest there.
2. The
plaintiff is a member of the Dun Laoghaire Motor Yacht Club and keeps his yacht
on club mooring B2 near the bight of the west pier in Dun Laoghaire harbour.
The plaintiff has used the yacht primarily for family cruising and it is also
not in dispute that he has maintained her up to a high standard and she has
been at all material times in excellent general condition.
3. The
defendant company was in 1993 the owner, operator and manager of a pontoon
drilling barge. In September of that year the defendant was engaged in
drilling operations at Dun Laoghaire harbour. On or about 27th September the
"Striopach" was lying to her club mooring and the defendant's barge was at
anchor nearby. On the night of 29th/30th September in course of a severe gale,
the barge dragged her anchor and struck the yacht on her starboard aft quarter
causing her serious damage over a substantial area. For many months after the
event the defendant's staff and advisors believed that there had been no
negligence in relation to the barge and that the cause of the damage was that
"Striopach" had dragged her mooring and struck the barge. Ultimately, it
emerged that the yacht had remained firmly moored at all times and that the
offending vessel was the barge. The significance of this is that the insurers
of the latter took no interest in the damage done to the yacht and did not
investigate the plaintiff's claim as to damages until long after repairs had
been carried out.
4. At
the time of the accident the yacht had been insured by the plaintiff for damage
up to a maximum sum insured of £22,500 with a Lloyds syndicate in London
through the agency of a Dublin broker. The latter was informed of the claim on
30th September. The boat was removed to a cradle at the coal quay, Dun
Laoghaire on that date and she was inspected on 1st October by Mr. Ken Dixon, a
marine surveyor, on behalf of the plaintiff. He furnished a written report
dated 8th October. He described damage done to the yacht at several places,
the most important being a hole 5 ft. long by 4 ft. deep at the aft starboard
quarter extending into the transom. In a covering letter Mr. Dixon stated:-
5. The
plaintiff decided to obtain an estimate for repairs from Kilmacsimon Boatyard
Limited. He was aware that they had appropriate facilities for carrying out
the work and from personal experience he had a high regard for their
reliability and workmanship. In the light of Mr. Dixon's advice, he
ascertained from Colvic that the cost of a new hull, including transport to
Ireland, would be £11,500 sterling. The cost of stripping out the
original hull and refitting all parts etc. would bring the grand total up to
approximately £43,000. In short, that was not a viable alternative to
repairing the existing hull. The plaintiff also considered the remaining
alternative. i.e., to purchase a second-hand Colvic Countess 28. He perceived
that in all probability there would be difficulty in finding a fin keel version
in the U.K. of comparable quality and that the search would be likely to
involve the expense of several visits to Britain which in the end might be
futile. He ascertained that similar second-hand Countess 28's were fetching
from £20,000 to £25,000 sterling and his evidence in that regard was
not challenged.
6. The
plaintiff had the yacht transported to Bandon and he obtained an estimate from
the Kilmacsimon Boatyard in the sum of £19,830 together with a handling
and commissioning account of £511.87 making a total of £20,342. He
decided to accept the estimate and to have the boat repaired. He did not
obtain any other estimate. He was aware that his claim on the defendant would
also include other items, including depreciation arising out of the damage and
loss of equipment which collectively would bring the grand total above the
maximum amount covered by his insurance policy. He instructed the boatyard to
proceed with repairs and, for reasons which I do not understand, he decided not
to claim the actual cost of repairs from his own insurers but to pay all
expenses himself. This entailed raising a bank loan of £20,000 which in
the end has given rise to a substantial liability for interest.
7. Mr.
Kevin O'Mahony, a marine surveyor who practises from Cork, was instructed by
the plaintiff to survey the yacht and to advise on the liability issue which
was then alive. He gave evidence that he found the yacht to be very well
constructed and maintained. In his words it was "most impressive". He
obtained a break-down of the repairs estimate and he believes that the amount
charged was fair and reasonable. At that time there were five other boatyards
capable of carrying out the required repairs - one in Dublin, one in Wicklow,
one in Portumna and two in Cork. He thought that the salvage value of the
yacht would have been between £5,000 and £8,000. His estimate of her
pre-accident value was £23,000 to £25,000. He estimated depreciation
as a result of the damage at 10% of the insured value. He was surprised that
the defendant's insurers had not appointed a surveyor on a "without prejudice"
basis to examine the yacht promptly and to have some in-put into the
plaintiff's decision as to what should be done.
8. The
net issue is whether the plaintiff acted reasonably in deciding to have
"Striopach" repaired and whether the various items comprised in his claim are
recoverable from the defendant company.
9. The
principles governing the assessment of damages in relation to maritime
casualties is conveniently summarised in the following passages in
McGregor
on Damages
,
14th Edition, p.p. 684/5:-
10. The
cost of repair is, however, appropriate only if in the circumstances it is
reasonable for the plaintiff to effect the repair: it might be cheaper to buy a
replacement on the market and sell the damaged goods for what they will fetch.
Thus in
Darbishire
-v- Warran
,
[1963] 1 WLR 1067 at (C.A.), Harman L.J. went on to point to the exception
where:-
11. Applying
the foregoing principles to the circumstances under review, I have come to the
following conclusions:-