Ottawa, Ontario, this 28th day of October, 2005
PRESENT: MADAM PROTHONOTARY ARONOVITCH
AMIRALTY ACTION IN REM
BETWEEN:
DEEP SHOREMARINE CONTRACTING INC.
(Defendant by Counterclaim)
and
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP M.V. "POLISH PRINCESS"
(Plaintiff by Counterclaim)
REASONS FOR JUDGMENT
[1] Late in June 2003, Mr. Laflamme, the owner of the "Polish Princess", a 43 foot Georgian Steel houseboat, took possession of it following repairs and refurbishment made to the vessel by the plaintiff, Deep Shore Marine Contracting Inc. ("Deep Shore"). The repairs were carried out at Deep Shore's establishment at the Long Island Marina, in Kars, Ontario. The vessel was then returned to the Pirate Cove Marina, on the Rideau River, where the owner had moored and kept his vessel for the past ten years.
[2] The defendant, Mr. Laflamme, alleges that immediately on taking possession of the vessel in June, he could see that there were numerous problems with the work performed by Deep Shore including water damage to the interior of the vessel. In the interim, Mr. Nicholas Nantsios, the President of Deep Shore, had presented Mr. Laflamme with an invoice for outstanding services which Mr. Laflamme had refused to pay. What predictably ensued is the plaintiff's claim for services and materials delivered to the Polish Princess that were unpaid, and remained unpaid to date of the trial, followed by the owner's own counterclaim due to delay and water damages to the vessel allegedly caused through the plaintiff's fault.
[3] The services performed by Deep Shore were primarily repairs to the hull of the boat which had to be wholly reconstructed, followed later at the request of Mr. Laflamme by the painting of the vessel, and the installation of aluminium sheeting over the roof of the back, or "aft" cabin of the vessel. This aluminium sheeting is also referred to as "diamond" or "checker" plating.
[4] Deep Shoretendered two invoices for the services rendered. The first invoice dated February 10, 2003, was for the sum of $21,348.64, to replace and rebuild the hull of the boat. At the date of the trial, $20,000 of it had been paid by Mr. Laflamme in installments. Only the GST in the amount of $1,396.64 remains owing on this first invoice. The second invoice dated June 8, 2003, in the sum of $11,379.56 is for the extra work commissioned by Mr. Laflamme. It is this second invoice that is contentious between the parties and principally at issue in this trial.
[5] In defence to the plaintiffs claim, the defendant has alleged that the costs of the repairs were misrepresented by Deep Shore, that Deep Shore was negligent in not properly covering and protecting the ship from the elements until it was brought indoors to be repaired, and that Deep Shore delayed the repairs causing Mr. Laflamme to loose the opportunity for which the repairs where effected, namely, the sale of the boat. The defendant, plaintiff by counterclaim, therefore claims the sum of $8,166.50, for misrepresentation and breach of contract, it being the amount of the estimate to repair the damage allegedly caused by Deep Shore. Mr. Laflamme also claims the return of the $20,000.00 paid to date for the repairs to the hull, as well as storage costs in the amount of $1,200.00.
[6] The questions for trial as set out in the Court's pre-trial Order are the following. Were the services set out in the June 2003 invoice requested and performed, and what amounts, if any, are due to the plaintiff for the work? Did the plaintiff cause damage to the boat in the course of performing work on it, and if so, what is the amount of the damages? Was there delay in performing the work, and if so, what is the amount of damages?
Evidence at trial
[7] Although the evidence is spare in this respect, the following is the chronology of events as I understand it, leading from the return of the vessel to Pirate Cove in June 2003, to its eventual delivery to Rideau Ferry Harbour ("Rideau Ferry") for repairs to the roof and walls supporting the aft cabin which the defendant says were damaged by Deep Shore. Mr. John Godwin, an employee of Ferry Harbour, who at the date of trial was continuing to repair the damage allegedly caused by the plaintiff, is also the author of the expert report tendered here on behalf of the defendant.
[8] At a date and time unspecified, but after the return of the vessel to Pirate Cove at the end of June 2003, one of Mr. Nantsios' workmen, then Mr. Nantsios himself was called to the boat to fix a leaking air conditioner. These service calls were billed to Mr. Laflamme as part of the second invoice. In July of that summer, the boat was arrested for non-payment of the repairs. While under arrest the boat remained in the water, at Pirate Cove, until the end of October. It was then taken out of the water, and shrink-wrapped for storage over the winter months. The shrink-wrap was removed in mi-summer 2004. Later that year, on November 9, 2004, the defendant paid the necessary monies into Court to secure the release of the vessel from arrest. It was delivered to Rideau Ferry for repairs on November 11, 2004. Mr. Godwin commenced his repairs in February 2005. As I have said, at the date of trial, repairs to the boat and more particularly to the aft cabin of the boat where ongoing.
[9] Mr. Nantsios says that he first met with Mr. Laflamme to discuss the repairs to be vessel on December 18, 2002. He indicated at that meeting that his company intended to start work on the hull of the vessel the following week, and discussed the work that would be undertaken with Mr. Laflamme. Mr. Nantsios says that he requested payments to be made in installments to cover the cost of labour and materials as these were incurred. According to Mr. Nantsios, Mr. Laflamme agreed to paying in installments but indicated that he preferred not to tie up his capital during the winter and wanted to wait until spring when market conditions would be more favorable to showing and selling the vessel. According to Mr. Nantsios, the work on the vessel did not start until February 7, 2003, for that reason.
[10] When the vessel was moved from Pirate Cove to the plaintiff's establishment at Long Island Marina, it became clear to Mr. Nantsios that the vessel was in poor repair and suffered from water damage as well as exposure to the elements. He noticed that an "excessive" amount of water was leaking out of the boat. When the steel hull of the boat was cut, holes had to be made in it first to drain the water, which according to Mr. Nantsios was coming through the roof.
[11] By April 29, 2003, the work to the hull was done with the exception of sandblasting and painting which required more favorable weather conditions to be completed. According to Mr. Nantsios, Mr. Laflamme frequently and regularly visited the repair site without at anytime indicating that he was displeased with the work in progress. To the contrary, he had requested additional work to be done. According to Mr. Nantsios, Mr. Laflamme never brought to his attention or complained about the fact that the windows were left open and that water was getting into the vessel during his visits to the site.
[12] The sandblasting commenced in late May, followed by the painting. It was during that period that Mr. Laflamme attended to inspect the work in progress and requested that aluminium plating which he had purchased and provided to DeepShore be installed on the roof of the aft cabin. Mr. Nantsios took it that this was merely "cosmetic" to enhance the appearance of the vessel for sale. He explained that this was not meant to make the roof watertight. To do so, Mr. Nantisos would have quoted Mr. Laflamme $12,000 to $14,000. Mr. Nantsios stated that it was his job to only make the hull watertight. His evidence as to the use of sealant in the installation of the checker plating was that sealant was applied wherever there was a physical joint or a screw.
[13] Requested to explain the repairs he was called to carry out to the air conditioner once the boat had been returned, Mr. Nantsios replied that he had not removed the air conditioner in the course of the work he had performed, and that he had gone around the air conditioner in order to install the checker plating. Mr. Nantsios had obliged by attending at the boat to fix the air conditioner because Mr. Laflamme was refusing to pay the outstanding invoice and "holding his money to ransom".
[14] Mr. Sheppard was next to testify on behalf of the plaintiff. He is an employee of Deep Shore, who had been involved in all aspects of the repairs. He attested to the state of the vessel when he was working on it. The steel of the hull was rusted so badly that it could have been "shoveled" out of the bottom of the boat. Above the water line, Mr. Sheppard characterized the structure of the boat as "weak". According to Mr. Sheppard, nothing on it was straight; the surfaces whether it be walls or floors, were wavy and bubbled. This he attributed to 30 years of being in the water.
[15] Mr. Curtis, a tradesman, who had worked primarily on the painting of the boat, testified that in his opinion the installation of the checker plating was a "band-aid" solution to make the boat look good for sale. As to the state of the vessel, he related one instance where he was installing aluminium trim between the deck and the wall, and could not fasten the screws to the wall because "there was nothing there". There was "no material", no structural value in the wooden framework to hold a screw. Mr. Curtis surmised that the inside of the wall there was punky with rot, and that the trim was being installed to true up the wall, the surface of which was wavy due to age and wear.
[16] Mr. Turner, the plaintiff's final witness, was also later recalled as the plaintiff's rebuttal expert witness. Mr. Turner had started working at Pirate Cove Marina in 1994. The Polish Princess had arrived there late that year, or the summer of 1995.
[17] Mr. Turner had performed all sorts of jobs at the marina. For the most part, his job entailed putting boats in the water, preparing them for winter, doing some minor mechanical work, and assisting the mechanics in a variety of repairs to the vessels at the marina. Mr. Turner had been the Harbour Master and continued to be referred to as such, in 2004, when he became the Assistant Manager at Pirate Cove. He was familiar with Mr. Laflamme's Georgian Steel. Over a period of 10 years or so, Mr. Turner had helped to winterize and dewinterize Mr. Laflamme's vessel roughly 20 times. This consisted of putting shrink wrap on the boat to protect it, and later removing it in the spring or early summer when the vessel was ready to be put in the water. Mr. Turner had personally put caulking on the boat when it was leaking, and was there when Pirate Cove made more extensive repairs to the boat.
[18] It was Mr. Turner who had helped Mr. Laflamme to move the vessel from Kars back to Pirate Cove Marina. He recalled Mr. Laflamme telling him at the time that Deep Shore had done an excellent job. Mr. Turneracknowledged that with the exception of a couple of seasons when it was improperly covered, Mr. Laflamme for the most part, had taken good care of his boat. Mr. Turner knew of, and had seen the work done in the spring of 1997, to renovate and put in new kitchen cupboards, carpet and flooring in the interior of the vessel. He characterized the renovation to the interior as a "beautiful" job. Mr. Turner testified however, that the reason for removing the old interior was water damage. The walls were stained and the floors were rotten. By renovating, Mr. Laflamme had addressed the problem with the interior but not, according to Mr. Turner, the problem with the roof which was in bad repair and needed to be replaced.
[19] According to Mr. Turner, Mr. Laflamme knew that the roof needed to be replaced. Mr. Turner understood from talking to Pirate Cove's Manager that Mr. Laflamme had asked for and was given an estimate to replace the roof in 1999 or 2000. However, he did not have the work done at Pirate Cove (apparently there wasn't room at the facility). Instead, Mr. Laflamme brought the vessel to his place of business to have his own workmen patch the fiberglass covering the roof of the boat.
[20] The gist of Mr. Turner's evidence was that Mr. Laframme's 28 year old boat had water damage to the interior of the vessel prior to going to Deep Shore. According to Mr. Turner, Mr. Laflamme was always having problems with leaks, and knew that the boat was leaking. Mr. Turner recalled, as an example, the problems with Mr. and Ms. Laflamme's closet situated in the aft cabin which was constantly wet. The bathroom window was apparently leaking inside the walls and had started to rot out the closet. It was bad enough that the Laflamme's had to throw out some of the affected clothing. Mr. Turner testified that this damage had occurred after the renovations had been carried out in 1997.
[21] Mr. Turner then went on to list the other repairs that he knew of that had been made to the Polish Princess, in addition to the caulking of leaks he had carried out himself. The command post, a three sided plywood structure, covered by a canopy, that stands on the "fly bridge", being the roof of the front cabin, had rotted and had to be replaced. The window between the front and back cabins was rotten and had to be replaced. As mentioned, the fiberglass surface covering the aft deck had cracks in it and had to be repaired.
[22] Mr. Turner acknowledged that most boats leak. On that basis, he dismissed the survey conducted in 2001 as evidence that the surveyor had not noted any problems with the interior of the boat. He doubted the surveyor would be concerned at the sight of some water staining. Mr. Turner pointed out that the report said nothing as to the state of the interior of the vessel, and that the surveyor would not have been in a position to observe, or able to express an opinion about the condition of the inside of the walls that supported the structure of the aft cabin.
The defendant's evidence
[23] Mr. Laflamme does not dispute the amounts payable under the first invoice for the repairs to the hull which he in fact paid, and admits having been given the Work Order, or first invoice, as of February. He also conceded that the work was competently done and that the $1,396.84 of GST outstanding on the first invoice was due and owing to Deep Shore.
[24] According to Mr. Laflamme however, contrary to the plaintiff's claim, Deep Shore had agreed to be paid for those repairs from the proceeds of the sale of the vessel which was to be within forty-five days of the completion of the work. Mr. Laflamme said that contrary to that agreement, he had begun to provide installment payments as of March 8, 2003, only because the plaintiff didn't have the funds to pay for materials. In May, Mr. Laflamme was in the process of advertising the boat for sale. Mr. Nantsios had run out of money and the project was running late, he therefore had no choice but to provide a further payment at that time. Due to these delays however, Mr. Laflamme had lost the potential buyers he had lined up to purchase the vessel.
[25] As to the extra work, Mr. Laflamme testified that he instructed the plaintiff to paint the vessel and install the diamond plating on the basis of a verbal agreement that the work would cost $3,500. The boat need fresh paint, and "in order to prevent any future leaks", he wanted diamond plating on the roof of the vessel along with flashing on the sides. The work was originally intended to be undertaken at Pirate Cove Marina however, according to Mr. Laflamme the delay on the part of the plaintiff made it impossible to return the boat to the marina in its then current condition, and therefore had to be done at Deep Shore.
[26] Turning to the water damage to his boat, Mr. Laflamme's says that on several occasions when attending the plaintiff's place of business he expressed concerns that the boat was not covered and the windows were open. The plaintiff assured him that this was a temporary situation.
[27] When he picked up his vessel Mr. Laflamme could see numerous problems with the quality of the work done by the plaintiff and "obvious" water damage. He believed that the damage could only have been caused by the failure to properly cover the vessel and close the windows during repairs and to properly seal new plating around the air conditioner. He felt however, that he had no choice but to accept delivery of the vessel.
[28] Mr. Laflamme testified that after the vessel was returned, further water damage occurred during a rainstorm, water seeped into the boat at the seams where the plaintiff had installed the diamond plating, and around the air conditioner which according to the defendant the plaintiff had removed during repairs and reinstalled without proper sealant. The owner called Mr. Nantsios for assistance following the rainstorm. The leak was fixed by installing a gasket.
[29] Attached to Mr. Laflamme's affidavit dated March 31, 2005 are pictures of purported water damage taken by him in mid-June. The pictures are offered as evidence of improperly installed checker plating, water damage to the kitchen counter and cupboards and as well as water damage to the bedroom walls and mattress. He stated in his affidavit that he has been provided with an estimate that the damage would cost $13,081.18 to repair.
[30] Mr. Laflamme's evidence was that the boat was in good condition when it went to Deep Shore and that nothing other than basic maintenance had ever been done to the boat. Cross-examination as to why he had put on the diamond plating, he said it was suggested to him that instead of painting his boat he should install the diamond plaiting that way he would "never have to worry about re-painting the boat again". As a further improvement, he thought he would put flashing all around the boat to let the water run off in case of rain - like eavestroughing on a house. He maintained throughout that he had had no water damage and no problems with water leaks whatsoever, prior to the installation of the checker plating.
[31] Ms. Laflamme's was next to testify. According to her evidence in chief, the work on the boat was supposed to be finished on February 10, 2003, and at the beginning of May 2003 was still far from completion. Her affidavit states that she had noticed that "while in Deep Shore's care the boat was severely damaged". She had attended at the repair site in April 2003 and had noted that the windows were open, as well as the patio doors at the back of the aft cabin next to which stood the bed.
[32] As to the state of the boat on the return of the vessel to the Pirate Cove Marina, Ms. Laflamme had not gone inside the vessel to see for herself. Mr. Laflamme had apparently insisted on having the boat cleaned before she saw it. The cleaning lady who performed the work has supplied an affidavit attesting to the musty smell in the cabin and apparent water stains on the mattress.
[33] Ms. Laflamme did refer to a heavy rain that summer. Water had "poured" into the boat and buckets had to be placed on the counter inside the vessel. The water, according to Ms. Laflamme "was presumed to becoming from the air conditioner".
[34] John Godwin, as I have said, is the author of the expert report prepared on behalf of the defendant. Mr. Godwin's expertise is not contested by the plaintiff. The Court is asked however, to consider the weight to be given to the evidence in light of Rideau Ferry's obvious financial interest in the repair of the vessel being carried out by Mr. Godwin who is employed by Rideau Ferry.
[35] Mr. Godwin's Report of February 23, 2005 is re-produced below.
"It is my considered opinion that the entire aft cabin superstructure including roof, walls, internal cabinetry, wall panels and furnishings sustained severe water and moisture damage as a direct result of inadequate installation of aluminium "checker plate" panels and aluminium trim moldings which had been applied to the aft cabin roof.
The panels and trim moldings appear to have been installed without proper usage of marine sealants which resulted in water penetrating beneath the "checker plate" panels. Being that the original manufactured roof was designed and arched to allow water run-off, water which penetrated the panels travelled outward, whereby further penetrating beneath the unsealed aluminium edge moldings thus penetrating the exterior plywood wall structure, which are rotted to the extent that approximately 80% must be removed and replaced. (emphasis added)
Further to this, additional structural roof and interior damage was a result of improper installation of stainless steel screws without caps applied to secure the "checker plate" panels. Overall screen lengths exceeded through the pre-existing fiberglass coated 5/8" plywood roof deck. With no evidence of marine sealants at those locations, water penetrated, thus resulting in additional damage to roof structure and internal components.
Upon examination, it was determined that the aft cabin roof and wall structure was at such a stage of deterioration as to cause a considerable degree of collapse to a point that the only means of support are the aft window aluminium moldings.
Digital and standard photos have been catalogued during the examination process for your review. It is estimated that the costs to restore the vessel to a safe structural and watertight condition are in the amount of thirteen thousand eighty one dollars and eighteen cents, $13,081.18."
[36] According to Mr. Godwin it is common practice to use diamond plating on the roof of this sort of vessel, and if properly installed, it would have acted as a shield to water. He said of the damage that he uncovered to the walls and roof of the aft cabin, that he had never experienced such "catastrophic" damage to a boat.
[37] By reference to photographs taken during the progress of his repairs he explained that the center panels of the roof were not in very bad condition, water having run off the center to the sides. The two-by-two plywood rafters along the outer edges of the roof however were completely rotten. The plywood inside the side walls or panels supporting the roof was saturated or rotten. The worst of the damage was to the back of the aft cabin. According to Mr. Godwin, the water had accumulated and been trapped there, as the back of the vessel which houses the engine, sits lower in the water.
[38] According to Mr. Godwin, the checker plate was not installed to the outer edge and was installed using improper or insufficient sealant. In his opinion, water had flowed under the panels, underneath the unsealed trim moulding down into the joints of the aluminium side panel and inside the wall structure where it remained trapped. He found that the aluminium trim moulding was not sealed at all. Mr. Godwin also described a method of affixing screws to fiberglass which ought to have been used and evidently was not, thereby also contributing to the seepage of water. Asked how long it might take to notice that water was seeping beneath the checker panels, he responded that if the weather was severe it would occur immediately and one would be able to hear it.
[39] In Mr. Godwin's opinion, this was not a question of the age of the vessel, as the roof of the front cabin, which according to him was of the same construction as the roof of the back cabin, was the original structure and showed no indications of needing repair, nor the external walls of the forward cabin. Any damage he had seen to the forward cabin was typically localized damage due to moisture penetration around the window edging which is common. Since the roof is constructed of plywood overlain with fiberglass, he agreed that cracks might appear in the fiberglass due to the expansion and contraction of the plywood, especially at the edges. According to Mr. Godwin however, any resulting water leakage would be localized and would not have spread as it evidently had, in this case. Mr. Godwin also accepted that water, over time, might leak in at the seat of the railings that are atop the outside perimeter of the aft cabin roof. Here again, he was of the view that any such water damage would be localized.
[40] The plaintiff's response to the Godwin report was the report of Mr. Turner dated April 4, 2005. Defendant's counsel objected to Mr. Turner's qualifications as an expert given that he could claim no experience in marine body work and construction. Plaintiff's counsel maintained that an expert witness is not always an individual with formal training and credentials and than an individual would give expert or opinion evidence by reason of this special skill or experience over and above that of the average person.
[41] Stressing Mr. Turner's first hand acquaintance and experience with the maintenance of the Polish Princess, and his familiarity generally with boats, and with this type of boat in particular, counsel for the plaintiff maintained that Mr. Turner has knowledge and experience relevant to the proceeding which should be heard and that the Mr. Turner ought to be called as a rebuttal witness to comment the Godwin Report.
[42] Mr. Turner's own report was accepted in evidence subject to the objections of counsel for the defence. The objection and the weight to be given to Mr. Turner's testimony were left to be determined by the Court following the introduction of his report in evidence.
[43] Mr. Turner's rebuttal statement begins by confirming his familiarity with the problems the vessel had since it arrived at Pirate Cove and goes on as follows, often repeating portions of his earlier testimony in cross-examination.
"...I have owned fifteen boats over the last thirty years and have extensive knowledge of the marine industry. I have seen just about every type of mechanical repair as well as fiberglass repairs. I have a special interest in Georgian steel boats as I owned a 38 foot Georgian Steel which experienced the same water leaks around fittings & railings on the roof as Mr. Laflamme's. When I sold my boat three years ago, I informed the new owners that after twenty five years my roof was in need of repairs.
Mr. Laflamme's roof is now approximately twenty eight years old. His flybridge had to be replace in the late 1990's due to rot. In addition, the wood around the rear window, which is above the roof in question, was also replaced at the same time due to rot. The main structure of the roof was never repaired or replaced. Pirate Cove performed an estimate to repair the roof as parts of it were starting to leak into the new interior of the boat. Mr. Laflamme took it on his own to repair the roof himself due to the cost of the quotation from Pirate Cove. Approximately a year later, Mr. Laflamme had the boat transported to his place of business on Highway 31 where he and his own employees performed the repairs. The repairs were not structural, simply cosmetic. The roof was never completely redone and the leaks continued.
Over the course of time, the boat showed signs of water damage to the interior due to the age of the vessel. This was prior to Mr. Laflamme sending the boat to Deepshore Marine to replace the entire hull which also showed sight o of it's age.
If there was nothing wrong with his roof, why would Mr. Laflamme instruct Deepshore Marine to cover it up with aluminium checker plate? I have never seen this type of material used on any other boat.
I disagree with the report supplied by John Godwin of Rideau Ferry Marina as there is no way to differentiate between the extent of the water damage that occurred prior to the work performed by Deepshore Marine and after."
[44] Mr. Turner expressed the following opinion as to how the damage displayed in Mr. Godwin's photographic evidence may have been caused. After 28 years of the boat being shrink-wrapped and people leaning against the railings, the screws bolting down the fittings and railings to the roof would get loose with time, and allow water to eventually seep all the way into the walls. This, according to Mr. Turner, is consistent with the finding that there was hardly any damage to the center of the deck, or roof, all of it being localized at the exterior parameter of the roof and the inside of the walls over which the railings sit. He added that in his experience installation of checker plating was not the norm and that he had personally never seen it on a boat. In his view, checker plating ought never to have been used in this case. According to Mr. Turner, there would be no reason to put checker plating over a good fiberglass roof and one would only do so to hide visible defects in the roof.
[45] Mr. Turner accepted that some "little bit" of water had seeped through and under the checker plating installed by Deep Shore. However, in his opinion it was impossible that leaks from checker plating would have done the kind of damage displayed in Mr. Godwin's photographs, in such a short time. According to Mr. Turner, leaks from the checker plate would have perhaps stained the wood in the outer walls, not have turned them black with rot. What was displayed in the photographs according to Mr. Turner was wood that had rotted over time.
ANALYSIS AND CONCLUSIONS
The plaintiff's claim
[46] By the admission of the defendant the work on the hull which is the subject matter of the first invoice was competently done, and the $1,396.64 in GST is due and owing to Deep Shore.
[47] Turning to the second invoice, I am satisfied on the basis of the evidence of Messrs Nantsios, Sheppard and Curtis in that regard, that the labour and services related to the painting of the boat as well as the installation of the checker plating and trim were rendered, as requested, and that the charges for the said labour and material, as billed, are due and owing to Deep Shore.
[48] I find the same with respect to charges to the repair of the air conditioner. The allegation is that the air conditioner was removed by Deep Shore in the course of the work it performed and improperly replaced without sufficient sealant. The evidence of Mr. Nantsios was straight forward on point. Due to its age he had not removed the unit but had installed the checker plating around it. He had only removed and then replaced the air conditioner when at the request of Mr. Laflamme, he had attended at the vessel to fix a leak on the unit. That evidence is supported by Mr. Turner who testified that the air conditioner had leaked before the repairs carried out by Deep Shore.
[49] Mr. Laflamme's own testimony was that the leak was fixed when Mr. Nantsios replaced a gasket. I accept the evidence that the air conditioner was not removed and refitted in the course of the repairs made by Deep Shore, and based on Mr. Laflamme's own testimony find no merit in the contention first, that it continued to leak thereafter, or that the improper placement of the checker plating caused it to leak, whatever the amount of sealant used.
[50] Mr. Laflamme in his testimony took issue with certain alleged over-billing on the second invoice. I find no basis to conclude that either the charges for sandblasting, or storage is redundant with charges on the first invoice. I conclude that they are similarly due and owing to the plaintiff.
[51] In sum, I am satisfied that the services and materials billed in the second invoice were delivered to the vessel and that the full amount of the invoice, for the sum of $11,379.56, is due and owing. That said, it is also evident that Mr. Laflamme did not take cognizance of the second invoice until the work had been completed, or near completed. It cannot be said that the parties were ad idem as to the terms on which the work would be performed, the rate at which they would be paid, or as to any other terms of the belated invoice. The second invoice, in that sense, has no contractual effect. Accordingly, the rate stipulated therein for interest payable on overdue accounts is not enforceable against the defendant.
The Counterclaim
[52] Turning to Mr. Laflamme's own counterclaim, I will first consider whether Deep Shore's delay in completing the repairs to the hull caused Mr. Laflamme to sustain damages in that, as a result, he was unable to sell his boat.
[53] I accept Mr. Laflamme's testimony, as corroborated by all of the witnesses that the object of the repairs including the installation of the aluminium plating was to prepare the boat for sale. There is no basis however to find either that Deep Shore delayed in performing its work or that the delay was the reason Mr. Laflamme was unable to sell the Polish Princess.
[54] The timing of the work and the ultimate delivery of the boat was evidently a function of the rate at which Mr. Laflamme was able to pay for its performance and the cost of the supplies delivered to the vessel.
[55] The intervals at which payments were made by Mr. Laflamme, albeit reluctantly, roughly coincide with those required under the terms of the Work Order (the first invoice), which Mr. Laflamme admits to being given from the outset. Indeed, the progress of the work and payments made on account of it, bear out Mr. Nantsios' version of what was agreed to by the parties. It is the defendant therefore who, in my view, bears full responsibility for the time in which the work was performed and completed. In addition, no evidence whatever was adduced of a prospective buyer for the vessel, nor of any lost opportunity to sell it.
[56] With respect the principal claim of the water damage caused by Deep Shore, it is the defendant, plaintiff by counterclaim, who bears the burden of proving that the vessel sustained damages, the extent of the damages, and that these were directly attributable to the work performed by Deep Shore. In my view, the owner has failed to meet its burden of proof.
[57] The principal allegation in the defendant's defense and counterclaim are to the effect that the damages were caused as a result of the vessel being left unprotected with its windows open while in Deep Shore's care.
[58] Mr. Laflamme testified that he complained of this numerous times when he visited the work site to review the work in progress. Mr. Nantsios has denied that Mr. Laflamme made any such comments or expressed concerns in that regard. Mr. Nantsios' workmen recall only comments expressing satisfaction. No comments about the state of the interior of the boat were made to Mr. Turner when he and Mr. Laflamme picked up the boat for the return voyage of the vessel to Pirate Cove.
[59] Ms. Laflamme, who visited the site and whose evidence is to the effect that she was also concerned, admitted on cross-examination that she had never personally seen the interior of the boat in dry dock during the repairs, nor did she see the state in which the boat was initially returned to Pirate Cove. The defendant has in evidence the uncontested evidence of the cleaning lady who would have cleaned the interior of the boat upon its return, and submitted a brief affidavit to the effect that there was a musty smell in the cabin, and that the mattress showed water stains. This is the mattress which resides next to the patio doors at the very back of the aft cabin which the evidence indicates are often left open, including by the Laflamme's.
[60] Taken as a whole, I do not find any convincing evidence that any water damage was caused to the vessel while in Deep Shore's care. More importantly, that any water damage to the interior of the vessel might have occurred as a result of windows being left open during its stay at Deep Shore is negated by the defendant's own expert. It is Mr. Godwin's categorical opinion that the damage that he observed, and to which he attests in his report was due exclusively to the improper installation of the checker plating.
[61] Of note, the installation of the checker plating as the source or cause of the water damage to the vessel was not pleaded by the defendant, and is a new theory of the case. There are a numbered affidavits filed as Mr. Laflamme's evidence in-chief. The first one, sworn on June 11, 2004, consistent with the pleadings, states the defendant's belief that the water damage and water stains that he noted when the vessel was brought back to Pirate Cove was due to the plaintiffs failure to cover the ship and the fact that windows were left open. These pleadings were not amended thereafter.
[62] In addition, the defendant, in his counterclaim, did not request damages to be assessed, but stipulated the quantum of damages as $8,166.50. Not having amended his claim the plaintiff by counterclaim, in any case, is not entitled to a sum greater than that alleged and claimed.
[63] I will now turn to Mr. Godwin's opinion as to the cause of the water damage to the structure of the aft cabin. In that connection, I will deal fist with whether Mr. Turner may be qualified as an expert rebuttal witness.
[64] As counsel for the plaintiff maintains, potential experts need not possesses specific accreditation or credentials to qualify as experts. They need only possess "special knowledge and experience going beyond that of the trier of fact". R. v. Marquard, [1993] 4 S.C.R. 223 at para. 35, citing R. v. Beland, [1987] 2 S.C.R. 398 at para.16. Sopinka, Lederman and Bryant in The Law of Evidence in Canada (1992) at 5369-7 is to the same effect:
The admissibility of [expert] evidence does not depend upon the means by which that skill was acquired. As long as the court is satisfied that the witness is sufficiently experienced in the subject matter at issue, the court will not be concerned with whether his or her skill was derived from specific studies or by practical training, although that may affect the weight to be given to the evidence.
[65] Mr. Turner, while not an expert in marine construction or repair, nevertheless has extensive experience of boats. That said, I have accepted and given weight to his evidence, solely on the basis of his personal observation and experience of the history and life of the Polish Princess during the past ten years. Mr. Turner's evidence has proven a useful background against which Mr. Godwin's evidence can be assessed.
[66] Thus, I have given no weight to Mr. Turner's account of his experience with his own Georgian Steel, which I take to be anecdotal and not relevant. I have dealt similarly with Mr. Turner's hearsay recollection of the fact that Mr. Laflamme purportedly had asked for a quote to rebuild the roof of the aft cabin.
[67] Mr. Turner's evidence as to the history of the vessel, as he knew it, was straight forward and consistent. Mr. Laflamme, for his part, did not produce any evidence as to the repair history of the boat. He denied and had no recollection that the staff of Pirate Cove, including Mr. Turner, had ever attended on the vessel to repair leaks and apply caulking. He recalled reluctantly that the command post made of plywood had rotted and had to be replaced. (It was Mr. Godwin himself while employed at Pirate Cove who had carried out the work). Neither Mr. Laflamme nor Ms. Laflamme recalled that the back window of the front cabin that slopes toward the aft cabin had rotted and had to be replaced. At the same time, the Laflamme's did not deny that there was leakage and water damage to their clothes chest even after the interior was renovated. Ms. Laflamme merely said it was not to the point of having to throw out her clothes. Mr. Laflamme only after prompting confirmed that he had had the fiberglass roof of the aft cabin repaired at his own shop by his own workmen, the extent of the repairs being unknown.
[68] Turning to the testimony of Mr. Godwin it is to the effect that up to 80% of the plywood in the walls supporting the structure of the back cabin as well as the plywood two-by-two's at the outside perimeters of the roof were rotten and had to be removed and replaced. All of it, caused in a relatively short time, due only to the installation of the checker plating.
[69] One of the photograph's that is illustrative of the state of the interior of the walls is photograph No. 6, taken from the portside of the boat. It shows the plywood walls of the aft cabin laid bare. The plywood in some areas shows only water stains. In other areas the picture shows a concentration of nearly black, rotten, disintegrating wood. The areas of concentration of blackened rot are under the sloping back window of the front cabin, all around the portside windows, and throughout most of the entire back portion of the wall at the rear of the aft cabin.
[70] The concentration of decaying wood indicates intense accumulation of moisture in areas that the evidence shows are at risk for water damage consistent with the age, state, and particular history of this vessel.
[71] Mr. Godwin's own testimony bears out that the "catastrophic" damage was more likely sustained over time. Mr. Godwin testified that water damage around windows is to be expected with usage; that water does seep in by the seat of fittings or railings which sit on the outside perimeter of the roof or deck of the aft cabin; and that water does come in through the cracks in the fiberglass that are inevitable over time. All of this damage however, he says, would be localized. The pictorial evidence is that the decayed and rotten wood, though beyond the point of penetration, is in fact localized in those areas. Principally, at the back of the aft cabin where water would flow and accumulate due to the back of the vessel sitting lower when in the water. The back of the aft cabin is also the area where the patio doors are found, as well as the bathroom which we are told leaked into the clothes closet, and was an ongoing problem.
[72] I have considered Mr. Turner's account of the vessel's prior problems with water leaks, the evidence of Deep Shore's workmen as to the state of the boat generally when it arrived at Deep Shore, and Mr. Curtis' testimony in particular that at certain points he was unable to find enough material in the walls to which he could attach a screw. The evidence taken as a whole, in my view, is consistent with water penetration sustained over time sufficient to wholly decay the wood in the very areas where it maybe expected to penetrate and accumulate over the Polish Princess' 28 years in the water.
[73] As to the defects in the checker plating, I accept Mr. Godwins' testimony that the checker plating was not watertight and would have allowed some water to penetrate beneath the joints or seams of the checker plating. Mr. Turner admits as much. That said, there are no visible holes or gaps in the plating. It is unclear in the circumstances how much water would have penetrated beneath the checker plating, as a result. Very little according to Mr. Turner.
[74] To add to this, the boat was not exposed to the elements but was under shrink wrap for a good portion of the time at issue. Also, no evidence was adduced of extreme weather other than one rainfall. None was provided as to the excessive flows of water which, according to Mr. Godwin, would have been necessary to cause such severe damage in a relatively short time.
[75] Not only is the amount of water that would have permeated the plating unproven, one can only speculate as to the damage, if any, that would have been caused from any leaks through the aluminium plating as distinguished from the water damage already sustained by the vessel.
[76] At any rate, the owner had a duty to remediate or mitigate any damage that would have resulted from leaks in the checker plating. Mr. & Ms. Laflamme's evidence is that they were aware of the water damage as of June 2003. The pictures taken by Mr. Laflamme and attached to his affidavit were taken as of then. If water was underfoot as they walked on the checker plating they would have heard it. The owner had a duty, as of then, to take steps to correct the situation.
[77] Nor was owner excused from acting to protect the boat from damage by virtue of the arrest of the boat. The possession of and responsibility for the arrested vessel does not change by virtue of the arrest. Marine Banking Co. v. "Dora" (The) [1997] F.C. 282 T.D. Pursuant to Rule 483(1) of the Federal Courts Rules (the "Rules") possession of and responsibility for property arrested pursuant to the Rules does not vest in the sheriff but continues in the person in possession of the property immediately before the arrest.
[78] In the circumstances, having proven neither water damages to the vessel resulting from the work of Deep Shore, nor the costs, if any, of any measure to mitigate the damages, the plaintiff by counterclaim is not entitled to any damages on account of the counterclaim.
[79] As to the amount of interest that the plaintiff is entitled to on the second invoice, the interest claimed by the plaintiff in its statement of claim is one and one half percent (1.5%) per month until date of payment, which is the rate of interest on overdue account stipulated on the second invoice. For the reasons given, that rate of interest is not enforceable against the owner. As no evidence has been adduced by the plaintiff as to either the costs of borrowing, or as to costs incurred due to the loss of the use of the sums at issue, I have set the pre-judgment interest at the rate of money paid into Court, accruing and compounded as for money paid into Court.
[80] In sum, I conclude that the plaintiff is entitled to payment on his claim in the amount of $12,776.20, with pre-judgment interest at the rate of monies paid into Court, from the date of the invoice June 8, 2003, to the date of judgment, as well as post-judgment interest until final payment.
[81] The counterclaim of the defendant, plaintiff by counterclaim, will be dismissed in its entirety.
[82] The costs of the action and counterclaim shall be to the plaintiff.
[83] Counsel for the plaintiff is directed to prepare for endorsement a draft judgment to implement these conclusions, such draft judgment to be approved as to the form by the defendant all as provided by Rule 394 of the Rules.
"Roza Aronovitch"
Prothonotary
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1271-03
STYLE OF CAUSE: DEEP SHORE MARINE CONTRACTING INC. v.
THE OWNERS AND ALL OTHERS INTERESTED IN
THE SHIP M.V. "POLISH PRINCESS"
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 11 and 12, 2005
REASONS FOR JUDGMENT: ARONOVITCH P.
APPEARANCES:
MR NICHOLAS KATSEPONTES
MS. WENDY PARKES
SOLICITORS OF RECORD:
BURTON GREGOROPOULOS KATSEPONTES
OTTAWA, ON
MCFARLANE LEPSOE
OTTAWA, ON