Sarah Nickolls v Noakes Rigging Pty LtdPeter Bush v Noakes Rigging Pty Ltd

[2008] NSWDC 299

CITATION:	Sarah Nickolls v Noakes Rigging Pty LtdPeter Bush v Noakes Rigging Pty Ltd [2008] NSWDC 299
HEARING DATE(S):	20, 21, 22 August, and 13 October 2008
JUDGMENT DATE:	23 December 2008
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict for the Defendant in each case. 2. Plaintiff to pay the Defendant’s costs in each case.
CATCHWORDS:	BAILMENT – duty of bailee for reward – yachts propped up on dry stands in boatyard – yachts blown over and damaged during storm involving gale force southerly winds – whether Defendant bailee discharged onus of establishing damage was not due to negligence on its part – DAMAGES – whether marine survey fees incurred by an insurer claimable as damages
CASES CITED:	Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 Califf v Danvers (1792) Peake 155; 170 ER 112 Jacap Low Loaders v Lindores Plant and Equipment [2004] NSWCA 5 Simpson v Thomson [1877] 3 App Cas 279 Florida Hotels Pty Ltd v Mayo & Anor (1969) 113 CLR 588 Redken Laboratories (Aust) Pty Ltd v Docker & Anor [2000] NSWCA 100 Fox v Percy [2003] 214 CLR 118
PARTIES:	Sarah Nickolls (Plaintiff) Noakes Rigging Pty Ltd (Defendant) Peter Bush (Plaintiff) Noakes Rigging Pty Ltd (Defendant)
FILE NUMBER(S):	0702 of 2006; 2269 of 2006
COUNSEL:	Mr JG Stewart (Plaintiffs) Mr MG McHugh (Defendant)
SOLICITORS:	McCulloch & Buggy (Plaintiffs) Piper Alderman (Defendant)

JUDGMENT

Introduction

1. These two cases were heard together. They involve subrogated claims for liquidated damages brought by one insurer against another in respect of damage sustained to two yachts that were owned by the respective Plaintiffs. These yachts were resting on hard stands within the Defendant’s boatyard when they were blown over during a storm involving gale force southerly winds in the early hours of 23 March 2005.

Issues for determination

2. The following issues arise for determination:

(a) Was the legal relationship between the parties in respect of the yachts that of bailment for reward and if so what was the content of the duty of care owed by the Defendant bailee?

(b) Was the damage to the yachts belonging to the Plaintiffs caused by a want of exercise of reasonable skill and care or negligence on the part of the Defendant bailee?

(c) In the event that the Plaintiffs are entitled to damages, are the marine survey fees incurred by the Plaintiff’s insurer properly characterised as forming part of the Plaintiff’s damages?

Summary of findings

3. I find that the relationship between the parties was that of bailor and bailee. I find that the bailment was for reward. I find that the Defendant has proven that it had discharged its duty to take reasonable care of the yachts left in its custody. I find that the damage occasioned to the yachts occurred due to the operation of unpredictable natural forces and was not due to or materially contributed to by any act, neglect or default on the part of the Defendant. I also find that in the circumstances no further steps were required to have been taken by the Defendant to prevent or lessen the damage occasioned to the yachts as a consequence of the operation of natural forces. I find that the claims made by the Plaintiffs for marine survey fees are not properly maintainable.

Witnesses

4. The following witnesses gave evidence:

(a) Mr Rupert Henry, the husband of the First Plaintiff Sarah Henry who owned the yacht Burning Palms;

(b) Mr Peter Bush who owned the yacht Tradition;

(c) Dr Graeme Wood, a consultant wind engineer;

(d) Mr David Sudano, the Defendant’s boatyard manager who was on duty on the day in question;

(e) Mr David Holmes, a shipwright and marine surveyor engaged by the Plaintiff’s insurers;

(f) Mr Phillip Pilcher, a Marine Surveyor engaged by the Plaintiffs’ insurers;

(g) Mr Jeff Thomas, an employee of the Defendant;

(h) Mrs Mary Bergstrom a client of the Defendant who was on her yacht in the Defendant’s boatyard during the storm in question;

(i) Mr Sean Langdon, the managing director of the Defendant company.

Facts

Undisputed facts

5. The Defendant operates a long established boatyard and boat repair business that has for many years been involved in the hard stand dry repair and maintenance of a variety of watercraft, including yachts.

6. At some time prior to 22 March 2005, as had been the case on a number of previous occasions, each of the Plaintiffs had left their respective yachts at the Defendant’s Berry’s Bay boatyard for maintenance work to be carried out. For that purpose the yachts had necessarily been lifted out of the water and placed on stands situated on flat concrete decking within the boatyard premises. The respective yachts were identified by the names Burning Palms which was owned by the Plaintiff Sarah Henry (nee Nickolls) and Tradition which was owned by the Plaintiff Peter Bush.

7. The Defendant’s boatyard manager Mr Sudano described the manner in which boats were placed on dry stands within the boatyard. He described how with the aid of slings and a lifting device, 98% of the weight of a yacht was placed on the keel before the stands were placed under the vessel. Tripod stands were then placed at strategically chosen points around the hull of the yacht. The legs of the tripod stands stood firmly on the concrete decking. The adjustable head of the tripod stand would then be placed up against the hull at an angle. Once in place these tripod stands would be chained together to counter-act lateral movement and to promote stability. The chains were then pulled tight, the tripod stand head plates were then notched up by their threaded screw fittings to rest adjacent to the keel and the final weight of the yacht was then dropped down. Protective plywood pads were then wedged between the head plates and the hull of the yacht to spread the load on the hull surface and to protect the paintwork. The vertical point of contact of the keel comprised wooden blocks or crush pads so the yacht did not rest on bare concrete. In this way the yachts were balanced by gravitational forces, propping them up and steadying them thus preventing them from falling sideways.

8. In addition, if yachts were considered to be of higher risk of falling over they could also be tied down by securing tie lines tied from the top of the halyards down to anchor points on the concrete decking. The boatyard manager described how in his 12 years of experience in this particular boatyard, to his knowledge there had never been a need to tie down the yachts Burning Palms or Tradition in that manner.

9. On the afternoon of 22 March 2005 the boatyard manager had been alerted to the possibility of inclement weather. His experience in looking at the build-up of clouds that were then apparent had led him to this view. In the mid-afternoon he contacted the duty forecaster at the weather bureau and had ascertained that rain and wind were predicted. He and a number of other employees of the Defendants then went around the boatyard and checked the yachts that were out of the water and propped up on dry stands.

10. The boats in the yard, including these two yachts, were secured in the manner in which they had always been secured as described above except that these two yachts were not tied down by the halyards to anchor points. Four tripod stands had been placed against the hull of Burning Palms, two on either side. The boatyard manager made an assessment and saw no need for this or to change the way the yachts had been left on the hard stand on 22 March 2005.

11. In view of the weather warning, before the close of business on 22 March 2005 the adequacy of the props was checked by the Defendant’s boatyard manager, the general manager and Mr Langdon who was a rigger and also a director of the Defendant company. Evidence was given that the chains on the props or tripod stands were checked for security to stop them from moving in strong winds. Another purpose of the chains was to prevent boat owners from moving the tripod stands once they were fitted.

12. The boatyard manager finished work at about 7.00pm on 22 March 2005. There were no further inspections of the yachts from that time and until the following morning when the yachts were found to have sustained damage.

13. At some time during the night of 22 March 2005 and in the early hours of 23 March 2005 a storm developed. Strong southerly winds swept through the boatyard and as a consequence Burning Palms was pushed over onto its side despite the fact that it had been held in place on the hard stand. As a consequence, Burning Palms fell upon the yacht Tradition. Consequent upon these events both yachts sustained considerable damage that was discovered at about 6.00am on 23 March 2005.

14. Mrs Bergstrom, a client of the Defendant, owned a yacht that was known by the name Flamingo. That yacht was also situated on a hard stand at the Defendant’s boatyard during the storm in question. Mrs Bergstrom had stayed on her yacht on the evening of the storm. She described how she was awake during the early hours of the morning and heard metallic objects about in the boatyard being moved about in the storm and causing apparent damage. She described the storm as being the worst she had ever experienced in her 60 years of association with sailing boats.

15. On 31 March 2005 the Bureau of Meteorology published a Sydney Climate Summary for March 2005. That summary confirmed that on the morning of 23 March 2005 gale force winds had reached 100kph at Sydney Airport causing power outages in many suburbs and generating sea swells of up to 11 metres. There was no direct evidence of the wind speeds at the Defendant’s boatyard at any relevant time for 23 March 2005.

16. It is not necessary to describe the damage to the yachts in detail nor is it necessary to analyse the value and incidental cost of the repairs to each vessel as the repairs had been undertaken by the Defendant and the quantum of the repairs was the subject of agreement. Consequently the claims were for liquidated damages in each case.

Disputed facts

17. The disputed facts were within a relatively narrow compass. First, the Plaintiff claimed that the Defendant did not have a process in place which could be called a system to protect boats on the hard stand from falling over as a result of wind forces. Secondly, the Plaintiffs claim that the supporting tripod props were not linked by chains which, if they had been fitted, would have prevented the yacht Burning Palms from falling over.

Resolution of disputed facts

Were chains fitted to the tripod stands?

18. It is convenient to first deal with the dispute over whether or not the tripod stands employed by the Defendant to assist with placing the yachts on hard stands were fitted with and linked by tightened connecting chains.

19. The suggestion that the linking restraining chains were not fitted came from the affidavit of Mr Phillip Pilcher, a marine surveyor who purported to quote from a statement allegedly made by Mr Jeff Thomas to the effect that Burning Palms was not secured by restraining chains. That was not the evidence of the Defendant’s employee Mr Thomas. In cross-examination Mr Pilcher did not maintain that view and said Mr Thomas used the word “secured”. The term secured refers to the fact that the yachts were not tied down with hazard lines to hard anchor points embedded into the concrete yard surface which is an entirely different matter to restraining chains.

20. I find that restraining chains were in fact fitted to link and stabilise the tripods underneath Burning Palms. This fact is incontrovertibly evident from photographs within Exhibit “A” which show damage to the hull of Burning Palms that was obviously caused by chains that were fitted at the time Burning Palms fell over.

Did the Defendant have a process or system in place to protect boats from falling over?

21. Apart from carrying out an inspection, the question that arises is, what system if any would be required to be implemented by the Defendant to protect yachts on hard stands. Once a yacht has been stabilised and successfully placed on a hard stand, by definition, any destabilising gravitational forces would have been addressed. The only circumstance that would serve to upset the equilibrium thereby established would be the application of a destabilising force to disturb this state.

22. Barring physical contact, the most likely and obvious source of such a force would be a strong wind. Assuming an effective hard stand had been implemented, which I find to have been the case, the next question that arises is what additional system could have reasonably been put in place to address the possibility of a yacht being blown over from its hard stand by the force of wind. In my view the only such system would be one that entailed a process of visual inspection.

23. The evidence of Mrs Bergstrom, Mr Sudano, Mr Thomas and Mr Langdon was to the effect that an inspection was carried out. I accept that evidence.

24. I find that the Defendant did have a process of inspection in place and I find that this was appropriate to the circumstances. I therefore reject the notion that no system was in place. It matters not whether the system of inspection was evidenced by a list of items appearing on a page on a clipboard that may have been required to be ticked off by an employee or whether a suitably skilled employee simply cast an experienced eye over the yacht on the hard stand and determined by evaluation that it had been adequately secured. I find that by virtue of the process of inspection the Defendant did have a process in place that justified the label “system”. In my view the criticism advanced by the Plaintiff to the effect that the Defendant did not have a system in place to protect boats on the hard stand from falling over due to wind forces is misplaced.

Agreement as to quantum

25. In the event of a finding in favour of the Plaintiffs, quantum was agreed as follows:

(a) In proceedings numbered 702 of 2006 brought by Mrs Henry (nee Nickolls) quantum was agreed at $80,399.26 including marine survey fees or $77,346.99 excluding marine survey fees.

(b) In proceedings numbered 2269 of 2006 brought by Peter Bush (nee Nickolls) quantum was agreed at $29,003.40 including marine survey fees or $27,991.33 excluding marine survey fees.

Expert evidence

26. I am mindful of the general criticisms made of the value of expert evidence in the reconstruction of events involving the operation of mechanical forces (whether this be in respect of motor vehicle collisions or in this case, storm damage due to wind) and I therefore approach the consideration of such evidence with caution. Fox -v- Percy [2003] 214 CLR 118 per Callinan J at 166 to 168.

Wind engineer

27. The Plaintiffs obtained an expert interpretation of wind data that was issued by the Bureau of Meteorology several days subsequent to the storm. That interpretation was prepared by a consultant Wind Engineer, Dr Graeme Wood, whose report comprised Exhibit “H”.

28. The underlying data for that interpretation was obtained from anemometer readings taken at various geographical locations around Sydney. Using statistical modelling techniques applied after the event to selected parts of the Bureau’s data a predicted calculated wind speed of 90 to 98 kph was obtained for the vicinity of the Defendant's boatyard for the evening in question. Expert evidence was to the effect that statistical modelling indicated that such peak wind speeds were to be anticipated in that area about once every year.

29. These wind speed estimations were based on the assumption that the anemometer readings were taken at a distance of 10 meters from the ground. That assumption was unproven by the Plaintiffs who relied upon it. The wind speed estimates so obtained were open to downward statistical adjustment by up to 5 percent to allow for variations in the height of the anemometers.

30. The wind speed estimations were subject to a number of other variables. These included uneven and undulating terrain, land obstacles such as trees, buildings, the presence of other structures as well as the presence of bulky watercraft that could serve as windbreaks. The presence of such obstacles would operate to cause a drag effect to slow the wind down in the immediate locality and cause the wind to gust in unpredictable directions and at unpredictable speeds. Another variable to be taken into account was the difference between sea level and the height of the hard stand deck above sea level. That height difference was not the subject of precise evidence. Expert evidence was to the effect that these wind speed estimations were open to statistical adjustment by up to 20 per cent on account of these variables.

31. It is important to observe that these estimated values were obtained by a process of hindsight analysis which, whilst possibly valid for an after the event theoretical study of wind behaviour, were not, without further factual evidence, legitimate indications of or bases for an inference as to what the Defendant ought to have known concerning predicted wind forces for the evening of 22 March and for the early hours of the morning of 23 March 2005.

32. The Plaintiffs introduced this expert evidence to seek to show that strong southerly buster winds of the intensity and duration encountered in this instance were foreseeable. It was argued that this circumstance served to define the content of the duty of care owed by the Defendant in this case.

33. Without in any way criticising the evidence of Dr Wood it is relevant to note that his opinion was the subject of a fairly placed caveat concerning the effect of southerly winds operating as a drag force on to yacht Burning Palms, namely:

“An estimate of the drag force on the vessel is impossible to predict without the complete geometry of the vessel and information relating to other objects surrounding the vessels at the time of the incident.”

34. In my view the very limited evidence describing the vessels and what was in the surrounds at the relevant time did not neutralise that caveat in order to make any useful or reliable estimations on the drag forces that may have operated on the yacht Burning Palms during the time the winds that caused the damage prevailed over the site.

Marine Surveyor opinions

35. The Plaintiff introduced evidence from Mr David Holmes, a Marine Surveyor and boat builder who prepared two reports respectively dated 4 June 2007 and 1 March 2008.

36. Mr Holmes was of the view that it was reasonable to stand a vessel of the style of Burning Palms on 4 tripods provided ties, which I take to mean chains, are used to secure the tripods : See Exhibit “M” page 2.

37. In his opinion the sole reason Burning Palms fell over was the alleged failure of the Defendant to fit tripod ties or chains. I reject that opinion because the foundation for it is flawed in that I have found the tripods had been chained together.

38. Although Mr Holmes referred to 4 or 6 tripods being required to be tied together in order to secure the vessel I do not interpret his opinion to mean that 6 tripods were mandated or that the fitting of only 4 tripods represented a lack of due or reasonable skill and care.

39. I find that the report prepared by Mr Holmes dated 1 March 2008 which was marked Exhibit “N” addressed matters raised in two reports dated 28 July 2005 and 7 January 2008 that were prepared by Australia Maritime Operations & Logistics and which were not tendered. For this reason, except for one matter to which I will later refer, I find this report to be of no probative value. Insofar as this report purports to make comments on photographs showing the state of chains on tripods supporting Burning Palms those comments are of no assistance as the photographs upon which the report is dependent were taken after the yacht had been righted and after the storm.

Characterisation of the legal relationship of the parties - bailment

40. The Plaintiffs had left their yachts in the custody of the Defendant for the purposes of carrying out maintenance work pursuant to an agreement to that effect. This constituted a bailment for reward. The Plaintiffs contend that it was an implied term of the agreement that the Defendant would exercise all due care and skill in and about the performance of the work : Florida Hotels Pty Ltd v Mayo & Anor (1969) 113 CLR 588; Redken Laboratories (Aust) Pty Ltd v Docker & Anor [2000] NSWCA 100. The Defendant does not dispute these propositions that must be subject to the caveat that such a duty of care to protect the property of the Plaintiff applies insofar as it is reasonably possible to do so. See Redken per Sheller JA at [44].

The duty owed by the bailee

41. The obligations of a bailee in such circumstances are well settled. A bailee is not the insurer of the bailed goods but is obliged to exert reasonable diligence in taking care of them: Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 at 228 per Sheller JA approving Califf v Danvers (1792) Peake 155; 170 ER 112. The fact that the goods were damaged whilst in the custody of the bailee gives rise to a rebuttable inference of a failure to exercise due skill and care. The onus for the rebuttal of that inference rests with the bailee: Jacap Low Loaders v Lindores Plant and Equipment [2004] NSWCA 5.

Onus of proof

42. This is not a case where, as in Jacap, where there were a number of competing causes that required evaluation and exclusion in order for the bailee to discharge the onus of showing there was no want of reasonable care on its part: Jacap Low Loaders v Lindores Plant and Equipment [2004] NSWCA 5 per Tobias JA at [9]. Instead, the cause of the damage in this instance is beyond dispute, the yacht Burning Palms blew over and onto the yacht Tradition as a consequence of prevailing natural forces in the form of strong winds which overcame the gravitational inertia of those yachts.

43. In this case the ultimate question to be determined distils into the simple proposition of whether or not in the circumstances the bailee took reasonable due care to secure the yacht Burning Palms and to therefore protect the yacht Tradition.

44. Mr Langdon put the same proposition succinctly but from a lay perspective delivered contemporaneous to the events. This is evident from Exhibit “R” which was his written response to a letter of demand. He expressed it in the following way:

“… I do not share the belief that Burning Palms was inadequately propped, as she was checked by my yard manager, general manager and myself. She does however have extreme windage as a result of extra mizzen height, drop main boom cover systems; wrap around cockpit cover and high coach house.

I am personally saddened by this accident to both Burning Palms and Tradition. I am not interested in a fight between insurance companies. The fact is, the boat blew over. There is a lot I can do – but I can’t control the weather. As Rupert, Peter and I know – because we all go to sea and don’t sit on our arses in an office all day – the wind can be very destructive….”

45. It seems to me that of all the allegations of fault on the part of the Defendant relied upon by the Plaintiff three critical issues emerge. First, whether or not sufficient tripod stands were placed around the yacht Burning Palms, secondly, whether or not chains were fitted to the tripod stands to secure or stabilise them, and thirdly, whether the plywood chock pads that were placed between the metal surface of the tripod stand heads and the surface of the hull of Burning Palms ought to have been securely fixed to the heads of the tripod stands by screws or bolts instead of simply wedging them into place to prevent movement.

46. The Defendant carries the onus of establishing that the damage complained of did not occur as a result of fault on the part of the Defendant.

47. I will deal with the issues that arise when analyzing the allegations of negligence that have been leveled at the Defendant. In my view, apart from the issue of where the onus of proof lays, no substantive difference arises in a consideration of these issues, whether the claim is framed in contract, bailment or negligence.

Submissions

48. The parties presented both written and oral submissions.

Plaintiff’s submissions

49. The Plaintiffs made wide-ranging criticisms of the Defendant’s care of the yachts. Without reciting the detail of all the submissions I will summarise the substance of the proffered criticisms as follows.

50. The Plaintiff submits that the Defendant had no system in place to protect boats on the hard stand from the risks of falling as a result of wind forces. Insofar as there was a protocol for protecting yachts from damage due to wind forces the Plaintiff submits that such a protocol was based on what seemed to have been no more than a reaction to the “gut feeling of what the weather was going to do”. Decisions as to boat security made on the day were said to have been made on the inadequate basis of a hope that past experience would be sufficient to guide the response to the weather warning in this instance.

51. The Plaintiff argues that the Defendant’s response to the windage factor which potentially affected hard stand stability of the yacht Burning Palms represented an inadequate assessment. In this regard the Plaintiff points to a disparity in the opinions within the evidence of defence witnesses on the windage factor. The Plaintiff argues that “no further steps were taken by the Defendant to resist a yacht falling over against a forecast of bad weather” where the wind strength could not be predicted. It is said that the Defendant should have used additional tripod supports to those that were already employed. The Plaintiff argues that the Defendant should have tied down the vessels in question. The Plaintiff argues that nothing was done to secure the vessel in the 7 hours from the last inspection until when the yacht Burning Palms fell over. The Plaintiff further argues that “no arrangements were made for the caretaker to check the boat for security after 8.00pm notwithstanding the forecast of gale force winds.”

Defendant’s submissions

52. The Defendant has submitted that each of the two yachts had been adequately propped and secured before the storm. The Defendant further submits that it took all due and reasonable skill and care in the circumstances and ought not be held responsible for the effect of the operation of natural forces outside of its control.

53. The Defendant submits that the Plaintiff’s submissions seem to proceed on the wrong assumption that the Defendant owed the Plaintiffs a duty to keep their boats safe from damage as if the Defendant were the insurer of the vessels. It is argued that assumption is unwarranted and incorrectly assumes that the Defendant was duty bound to predict the intensity of the uncontrollable natural forces of the wind and take steps which would have prevented the losses sustained in this instance which were due to the unpredictable nature and extent of wind forces. The Defendant argues that it was not the insurer of the vessels yet the Plaintiff presents the claim against it as if it was the insurer.

Did the Defendant fail to exercise reasonable skill and care in the circumstances?

54. I will review the evidence and the submissions in the light of the Plaintiff’s allegations of negligence as pleaded against the Defendant.

The defendant failed to carry out its normal procedures for securing a vessel of the size of Burning Palms to the hard stand

55. This allegation stands or falls according to the finding of whether or not chains were fitted to secure the tripod stands supporting Burning Palms. The evidence for the assertion that chains were not fitted comes from an unsubstantiated assumption made by Mr Pilcher which was attributed to Mr Thomas. The source of that assumption was set out in Mr Pilcher’s report Exhibit “Q” in which he stated:

“It was noted the stands supporting ‘ Burning Palms ’ did not have the restraining chains in place, allowing the stands to spread, causing the vessel to fall over.”

56. Exhibit “3”, which is apparently a note taken by a Mr Fullerton, an employee of the Plaintiff’s insurer, makes reference to a telephone conversation between himself and Mr Pilcher at 3.00pm on 23 March 2005. In that conversation Mr Thomas was quoted as saying the tripods were chained together. Mr Pilcher’s comment is therefore not corroborated by either Mr Thomas or Mr Fullerton. Mr Thomas denied he said the tripods were not chained. Mr Fullerton was not called. I reject Mr Pilcher’s evidence in this regard.

57. As is evident from the contemporaneous photographs in Exhibit “A” which shows chain damage to the hull of Burning Palms, I find that chains were in fact used to secure the tripods. Accordingly, Mr Pilcher’s critical assumption is incorrect. I find that normal procedures were used and chains were in fact fitted.

58. The Defendant’s normal procedures were described in the evidence of Mr Langdon, Mr Thomas and Mr Sudano. This included the placement of the yachts on hard stands and inspections to assess the adequacy of the securing of the yachts when the storm and strong winds were anticipated. The Plaintiff sought to criticise these procedures by reference to Exhibit “J” which was the Defendant’s training manual which came into existence after the incident.

59. The fact that after the event in question the Defendant saw fit to prepare a manual for a boat hoist operators course which included risk management procedures does not in my view provide a reasonable basis for inferring that beforehand the absence of such a manual represented a deficiency in the Defendant’s risk management processes, systems and procedures. I come to this view because the Defendant’s procedures have not materially changed and in my view there is nothing in the manual which, if adopted or followed before the incident, would have enabled the hard standed yacht Burning Palms to withstand the strong winds that prevailed on the day in question so as to prevent that yacht from being blown over and sustain damage not only to itself but to also cause damage to Tradition.

60. It is noteworthy that the procedures set out in Exhibit “J” concerning the use of cradles, boat stands and props are all dependent on the application and the exercise of judgment by experienced boatyard personnel which is what occurred at the Defendant’s boatyard on 22 March 2005.

61. Moreover, the boat stands user’s guide section comprising that last 2 pages of Exhibit “J” is predicated on the realisation that the purpose of the boat stands is to stabilise the boat, not to resist strong wind forces. Although reference is made to precautions to be used in extreme windy areas to require the use of extra boat stands it is important to observe that such a recommendation was a guide, not mandatory, and its appearance in the manual post-dated the events. Mr Langdon stated, and I accept, that prior to this event there were no industry standards for propping however his boatyard used a propping system which had been in place for at least 15 years without mishap. That system was based on his engineering knowledge as a rigger and from experience acquired over a number of years.

62. The Defendant used four tripod stands which was consistent with its manual and consistent with the practice it had followed before the events. That configuration had been sufficient in the past for Burning Palms and I find that the judgment made on the day by the Defendants personnel that four tripods were sufficient represented reasonable care in the circumstances. This was also the opinion of Mr Holmes. The argument to the contrary based on a flawed hindsight analysis and is in my view unreasonable and I reject it. In my view there is no sound evidentiary basis upon which to infer or find that the use of six tripods would have prevented the yacht Burning Palms from being blown over.

The defendant failed to use sufficient adjustable metal tripod stands to support the vessel

63. In Exhibit “M” Mr Holmes has stated that if four or six tripods had been tied securely the vessel would have been safe. On that evidence I find that it was reasonable for the Defendant to use four tripods. In my view, whilst the Defendant could have used six tripods, that is a criticism based on a hindsight analysis which is in turn based on a counsel of perfection rather than being based on a reasonable response to the risk at the time. I reject the argument that six tripods ought to have been used.

The defendant used only 4 tripod stands whereas the vessels of similar size to Burning Palms were supported by 6 tripod stands

64. The only evidence of other boats being held up by six tripods before the storm was a racing boat which sat on a very small keel and needed additional supports. This was not a vessel similar to Burning Palms. It was described by Mr Langdon to be quite different in its characteristics. The Plaintiffs seek to draw an inference from after the event photographs showing Burning Palms to be sitting on six tripods to suggest that the use of six tripods was the correct method. That comparison is unwarranted because at the time Burning Palms was photographed it had been righted, it was structurally damaged and, as Mr Langdon stated, and I accept, different considerations applied to supporting the vessel in its damaged state pending repairs. The comparison sought to be made between Burning Palms and another large vessel is misplaced because, as Mr Langdon described, the vessels were quite different.

The defendant failed to secure the tripod stands by means of chains so as to prevent the tripod stands moving or spreading

65. Mr Holmes testified that the sole reason that Burning Palms fell over was that tripod ties were not fitted. As I have found there were tripod ties or chains fitted the Defendant’s criticisms in this regard are not sustained.

66. I have already found that the tripod stands were secured by means of fitted chains. I therefore reject the argument based on the particular that chains were not used to secure the tripod stands.

The defendant failed to take any or any proper measures to prevent the tripod stands moving or spreading

67. The Defendant submits that there is no evidence that it did anything outside what a prudent hard stand operator would have done in the circumstances. I accept that submission. The Plaintiff’s submissions to the contrary make no allowance for the destructive forces of the wind and the very limited steps if anything that could have been done by the Defendant to counter-act such forces. The Plaintiff’s submission is inconsistent with the evidence of their witness, Mr Holmes, who said that if four props had been used with chains the yacht would not have fallen over. Clearly the wind force was very strong and destructive. This was a natural force outside the ability of the Defendant to control so as to prevent the yachts being damaged.

The defendant failed to take any or any proper measures to prevent the Plaintiff’s vessel from being blown over during the storm when it had prior warning of the said storm

68. The Defendant submits that all proper precautions were taken.

69. The Plaintiff criticised variations in the evidence of Mr Langdon, Mr Thomas and Mr Sudano concerning the assessments of the windage of Burning Palms. Simply put, windage is the factor of increased wind resistance due to the location and size of exposed parts of the vessel. The evidence discloses that the assessment of windage was based on the subjective factors of visual appraisal and experience. It was not an empirical process. In view of this evidence I do not regard such variations in the array of views as to windage to be significant. The position would be different if the process was empirical which it was not. The Defendant was not under a duty to be right with regard to the assessment of the windage factor. That is not to say it was in any way wrong. The fact that there were variations indicates that the process is based on human factors and not based on precise empirical formulae. In my view the Plaintiffs’ criticisms are misplaced and I reject them.

70. Mr Noakes conceded that the timber plates had not been screwed onto the tripod heads although there were pre-existing holes in the metal head plates that would accept and facilitate screws and bolts. He explained that those devices had been adapted from pre-existing formwork supports which explained the presence of the holes. Different forces applied to the use of props as formwork supports where the head plates were secured by screws or bolts. I therefore find the argument concerning the analogy to hard stand props sought to be made by the Plaintiffs to be inappropriate. The purposes of the respective uses were quite different. Formwork props were used for support whereas the principal purpose of the hard stand props was for stability.

71. In my view the Plaintiff’s criticism of the failure of the Defendant to secure the timber plates to the head plates of the tripods by screws or bolts is a hindsight criticism based on a counsel of perfection rather than forming a proper basis upon which to assert a want of reasonable care. The Plaintiffs’ criticism is undermined by the opinion of Mr Holmes whom I accept in this regard. In Exhibit “N” at page 7 he refers to such pads as softening pads and refers to the fact that the base may not have been secured as being considered to be common practice. I infer from this that the practice adopted by the Defendant was reasonable at the time.

72. The rationale behind securing the timber plates to the head of the tripod plates is that if the boat moves in the wind because of a harmonic vibration that becomes set up within the hull of the boat, the likelihood is that the timber wedges would not move and therefore the tripods and the yacht would not move. In my view that argument is flawed because it assumes that such a simple measure would be able to withstand the powerful force of the wind. There is no expert evidence to suggest that if secured in this way the securing of the chocking pads would completely prevent a harmonic vibration from causing the yacht to move and/or resist the force of the wind. I find the non-fixing of the plywood pads to be an irrelevancy to the cause of Burning Palms blowing over.

Conclusions as to alleged negligence

73. The wind was a very destructive force in this instance. This was necessarily a hindsight observation. I find that the Defendant took reasonable care in the circumstances. It was not possible or practicable to shelter the yachts from the wind. They were already on hard stands in the boatyard where other boats were also located. There was no reasonable way of predicting with any degree of accuracy which way the wind would gust and with what force that would occur. In those circumstances the Defendant did what was reasonable, namely to check the props for location and tightness of fit before closing the boatyard for the evening. On being satisfied that the boats were held securely in their propped hard stand locations there was nothing more that could reasonably be done. The criticism that the Defendant’s night caretaker did nothing during the storm is misplaced. In my view there was nothing he could have reasonably done during the storm and strong winds which would have lessened the damage to the yachts. To require anything more of the Defendant in the circumstances would be to impose an unreasonably high standard of care beyond the terms of a relationship of bailment and more akin in character to a relationship of insurer and insured.

74. For the foregoing reasons I am satisfied that the Defendant has discharged the onus of proving that the damage occasioned to the yachts in question was caused by the operation of natural forces in the form of strong winds, the potentially destructive force of which was not predictable in advance. I therefore find that the damage to the yachts was not due to a want of reasonable care on the part of the Defendant.

Marine survey fees

75. If the Plaintiffs had been successful on the principal issues in the proceedings, in my view, the amount representing the cost of marine survey fees would not have been recoverable as part of the Plaintiffs’ damages. This is so because the insurer is not able to make a claim which the insured cannot make in his or her own right : Simpson v Thomson [1877] 3 App Cas 279. In my view the marine survey fees are obviously a litigation cost that would have been claimable as part of a party/party costs assessment if the Plaintiffs had been successful in the litigation. Consequently, if the Plaintiffs had been successful in the proceedings I find such fees must be borne by the insurer of the Plaintiffs.

Disposition

76. I am satisfied that the Defendant has discharged the onus it carried to establish that the damage claimed by the Plaintiffs was not occasioned as a result of any fault or failure on its part to exercise reasonable skill and care with regard to the yachts in its custody. Accordingly, the Plaintiffs’ claims must fail.

Orders

77. I order:-

(a) A verdict and judgment be entered in favour of the Defendant in each case;

(b) The Plaintiff to pay the Defendant’s costs.

(c) The Exhibits may be returned;

(d) If required the parties may apply for any further or consequential orders on 7 days notice.