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Wakaya Club Ltd v Tropical Sports Fishing & Charters (Fiji) Ltd [2013] FJHC 647; HBC558.2007 (25 November 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL NO. HBC 588 of 2007

BETWEEN :

Wakaya Club Limited
PLAINTIFF

AND :

Tropical Sports Fishing & Charters (Fiji) Limited
DEFENDANT

COUNSEL : Mr. K Singh with Mr Sokimi for the Plaintiff
Mr Peter Knight for the Defendant

Date of Judgment : 25 November 2013

JUDGMENT

1. In this action Plaintiff seeks damages for a sum of $138,598.65 for negligently carrying out the repairing work on the Flying Wakayan (the vessel) owned by the Plaintiff during the period of June and July in year 2007.
   
2. The Defendant denied the allegations contained in the Statement of Claim and asserted that prior to delivery of the vessel to the Plaintiff a test run of the vessel was carried out in the presence of the Plaintiff's representative and the said representative accepted the vessel in good and working condition and signed an acknowledgement to that affect and thereby there is no cause of action against the Defendant.
   
3. The Defendant in its Statement of Defence makes a counter claim against the Plaintiff. The counter claim proceeds to state that out of total cost of $28,987.82, the Plaintiff has already paid the Defendant in the sum of $13,187.50 leaving a balance of $15,800.32 owing by the Plaintiff to the Defendant.
   
4. The particulars of negligence contained in the Statement of Claim states that the Defendant failed to seal redundant bolt holes for the old engines resulting in sea water leaking into vessel over time and causing the vessel to sink at mooring after delivery.
   
5. In the minutes of pre trial conference dated 31 July 2008, the following were stated to be the agreed facts:
   

"Agreed Facts

1. The Plaintiff is a limited liability company having its registered office at ground floor. Civic House, Suva in the Republic of Fiji Islands and at all material times was engaged in the business of Resort operations.
   
2. The Defendant is a limited liability company having its registered office at BDO Zarin, Ali, Level 8, Dominion House, Suva in the Republic of Fiji Islands and at all material times engaged in the business of boat repairers.
   
3. By quotation dated 19 June 2007 subsequently amended, the Defendant agreed to carry out certain works on the Plaintiff's vessel, "Flying Wakayan" ("vessel") for the sum of $26, 375.00 (Twenty six thousand three hundred and seventy five dollars).
   
4. The Plaintiff paid to the Defendant the sum of $13,187.50 (Thirteen thousand one hundred eighty seven dollars and fifty cents) as an Advance/deposit on account of the said sum of $26,375.00. (Twenty six thousand three hundred and seventy five dollars) and the Defendant commenced works, completing the said on or about 20 July 2007.
   
5. It was an implied term of the agreement that the Defendant would use reasonable care and skill in the said work.
   
6. The Plaintiff had been indemnified by its insurer, Dominion Insurance in the sum of $15,000.00 (Fifteen Thousand Dollars).
   
7. Prior the delivery of the vessel to the Plaintiff on or about 20 July 2007 a test run was carried out on the vessel in the presence of the Plaintiff's representative [and the said representative accepted the vessel in good and working condition and signed on acknowledgment].
   
8. The Plaintiff's representative drove the vessel from Suva to Wakaya on 21 July 2007.
   
9. The vessel sank on or about 22 July at Wakaya Island."
   
6. Having considered the issues raised at the pre trial conference for determination and particulars of negligence as stated, the following issues could be identified as the main issues for determination in this case:
   

"a. whether the Plaintiff accepted that the Flying Wakayan was in good and working order by signing an acknowledgement to that effect.

b. whether the Defendant properly sealed the redundant bold holes of the Flying Wakayan's old engines.

c. whether the failure to properly seal there redundant bolt holes caused the Flying Wakayan to sink; and

d. whether the Plaintiff is entitled to the damages claimed.

e. whether the Defendant is entitled to that balance of its payment being $15,800.32 for works on the vessels.

The Hearing

7. The Plaintiff called five witnesses namely Robert Miller, the Managing Director of the Plaintiff at the time of the sinking. Tinou Raymon Qulinamakelo, a marine surveyor employed by the company by the company which was previously called Topils, Nelson Tafilagi a marine engineer and welder employed by Baywater Charters (Fiji) Ltd, ("Baywater") the company that carried out work on the vessel after the sinking and a previous employee of the Defendant, Meliki Tuinamanua, the Chief Operating Officer of the Plaintiff and Russel Ah Sam of Trade & Publicity Ltd, a company which also did work on the vessel after the sinking.
   
8. The Defendant called two witnesses, Anton Lee, the Managing Director of the Defendant and Captain John Rounds a marine surveyor employed by Fiji Islands Maritime Safety Administration at the time of the sinking.
   
9. The former Managing Director of the Plaintiff's company was the first witness for the Plaintiff. He testified that the Plaintiff company handed over the vessel to the Defendant company for repairs which included the replacement of two new engines. Upon the notice on completion of the repairs, vessel had been driven back to Wakaya by the Captain Panapasa Nata, from Suva on 21 July 2007. The test run was carried out in Suva harbour and left at the Yacht Club over night before it was transferred by sea to the Wakaya Island.
   
10. The vessel arrived at Wakaya Island in the afternoon of 21 July 2007, and shortly after midnight on 22 July 2007 the vessel had sunk at its mooring and lying on its starboard side. The following day with the assistance of Mr Anton Lee, the Managing Director of the Defendant company, the vessel was taken out. He testified that he observed that the water was coming out from the redundant bold holes at the rate of 1 litre per second. The photographs he has taken in proof of the water coming out was marked as P14, P15 and P16. This witness expressed his opinion for the alleged negligence of the Defendant in the following manner.
    

"Mr Singh: Now in your opinion how do you think the vessel sunk or why?

Mr Miller: I believe the holes that were from the previous engine weren't correctly dealt with to be completely sealed and whatever seal were used or filling the trip to island obviously aggravated a slight movement within the sealant and water got in and seat inside the hull sunk."

11. Under cross examination the witness was questioned on the three reports on the vessel prepared by Toplis and John Rounds. He was also referred to the e-mail dated 13 June from Mr Anton Lee on the condition of the hull.
    
12. The following question and answers are relevant to the case to ascertain what exactly transpired in the communications between two parties after the commencement of the repairs.
    

13. He admitted that several engines had been replaced prior to the replacement of the new engines by the Defendant.
    
14. The Plaintiff's second witness was Mr T. Qulinamakelo, a marine surveyor of Dover Marine previously known as Toplis. He tendered the two reports prepared by them, as P27 and P28. This witness admitted that the vessel was examined By Mr G. P. Giru of the Toplis & Cargo marine and reports were also prepared by Mr Giru. This witness explained the contents of the two documents and testified that the two possible causes as follows:
    

15. Under cross examination, he admitted that he was not the attending surveyor. However in answering to the questions he admitted that one of the causes for the damages to the engines could have been due to the vessel hitting the seabed when it sank.
    
16. This witness explained the contents of the two reports but stated that Mr Giru would be the best person to be able to give evidence as he was the attending surveyor.
    
17. The Plaintiff's third witness was Mr Nelson Tafilagi. He was an ex-employee of the Defendant and carried out some repairs when the vessel was in the yard of the Defendant. He explained the works carried out by him. His evidence was that old engine holes need to be sealed when the new engine was replaced and in this situation the filler called bondafill was used for sealing. The old bolt holes should have welded with aluminum and not with bondafill and the bondafill is filler used only for cars and not for vessels.
    
18. He admitted that his services were terminated by the Defendant and the reason is the downturn in work. The witness testified the possible causes for the hairline fatigue cracks observed in the hull in the following manner.

19. Under cross examination, this witness explained a possible cause for the sinking of the vessel as follows:
    

20. The Plaintiff's fourth witness was the Chief Operating officer of Wakaya Group. This witness testified the costs incurred to repair the vessel after the sinking. She admitted that the Plaintiff received $15,000.00 from the insurer after the vessel sank and explained the exact amount due to them after the incident, taking into account of payments received from the insurer and $44,000.00 accounted for the engines.
    
21. The last witness of the Plaintiff was Mr. Russel Ah Sam, a contractor by profession specialized in Marine and Protection Coating and Corrosion Control and Refurbishment of fishing vessels. He testified that his company also carried out some repair works of the vessel. He also opined that redundant bolt holes should not be filled with bondafill and the holes should be either be covered by welding a plate over the holes or by using a rubberized sealant instead of bondafill.
    
22. Under cross examination he explained the use of bondafill by the boat people in the following manner:

23. In relation to the question on the hull the witnesses testified the other patch work carried out in the past as follows:

24. The witness was also cross examined on the other possible causes for the damages to the engines, as follows:
    

The Defendant's Evidence

25. The first witness of the Defendant was Mr John Rounds, the Regional Shipping Advisor, Secretarial for the Pacific Community. He was the Deputy Secretary for transport at Ministry of Transport, Fiji and was the Director of Maritimes Safety at the Fiji Island Maritime Department, prior to working with Fiji Islands Maritime Safety Authority (FIMSA). He testified that one of the functions of the FIMSA is to prepare reports on vessels on the request of third parties. In August 2007, on the request of Mr Antom Lee he prepared a report on the vessel flying Wakaya to ascertain the possible or likely causes for the sinking of the vessel.
    
26. The witness explained the contents of the report prepared by him and possible cause for the sinking of the vessel. His report dated 11 August 2007 was dated 11 August 2007, was the document 37 in the Agreement bundle of documents which was tendered as D1.
    
27. He explained the likely cause for the sinking of the vessel in the following manner at the trial.
    

28. Under cross examination the witness was questioned the manner in which the inspection was carried out and it was suggested that the inspection has not been carried out in an independent manner on the premise that he relied on facts made available to him by the Mr Anton Lee. It was also suggested that the report prepared by him cannot be considered as reliable.
    
29. Mr Anton Lee was the Managing Director of Sports Fishing Charters, currently Managing Director of Hammerheads boats was the last witness of the Defendant. He testified that he has twenty five years of experience in boat building and repairing and carried out repairs of vessel Flying Wakayan after an agreement between parties. On completion of the works on the vessel, on the advice of Mr Miller, sea trial was carried out at the Suva Harbour with the representative of the Plaintiff, Mr Panapasa.
    
30. Having satisfied with the works done on the vessel and after the trial, Mr Miler had advised Mr Panapasa to sigh an acknowledgement that the vessel was in good order. The vessel was in Suva Harbour over night before leaving to Wakaya Island.
    
31. Mr Panapasa left Suva Yacht Club on the following day and informed this witness that he arrived Wakaya around 3:30pm. He stated that Mr Miller on the following day morning had called him and informed him that the vessel had sunk and wanted him to come to Wakaya.
    
32. Mr Lee had arrived Wakaya and took the vessel out of the water. He had noticed that the starboard engine of the vessel had been damaged. He testified that the damages would have caused due to the vessel hitting the sea bed and caused the bolt holding the engines to transom which resulting the water coming out from the right bottom bolt.
    
33. Subsequently the vessel was brought to Defendants yard. Mr Miller had informed that the vessel to be released to another repairer to carryout repairs to the vessel. The unpaid balance of the invoice was subsequently paid into the Trust Account of the Cromptons solicitors.
    
34. Under cross examination, he admitted that he used bondafill which is filler and not a sealant. He further stated that he has used bondafill in the past and has not observed any problem.
    
35. He further admitted that after the sand blasting of the vessel, he observed the defects in the hull and informed Mr Miller about the condition. He also admitted that Mr Miller in response and asked him to make the vessel seaworthy. The counsel for the Defendant objected to any question being asked on the premise that the Plaintiff's case is founded upon the negligence in using the wrong sealant and not any other reason as per the Statement of Claim. However, the counsel for the Plaintiff asserted that witnesses were cross examined to the effect that one of the possible causes for the sinking of the vessel could have been the defects and condition of the hull and therefore entitled to cross examine the witness on the conditions of the hull.
    
36. The witnesses further testified that several engines had been replaced prior to the installing of the engines by the Defendant and bondafill could have been used in previous bolt holes sealing.
    

The Determination

37. The evidence before the court for determination of the main issues in this case, is the oral testimony of the witnesses and documentary evidence, especially the three reports on the examination of the vessel for the purpose of ascertaining the reason for the sinking of the vessel.
    
38. Two reports had been prepared by Toplis on behalf of the insurer and another by Fiji Islands Maritime Safety Authority on the request of Mr Lee.
    
39. The Plaintiff in the Statement of Claim and the issues for determination of the pre-trial conference alleged that the reason for sinking was due to Defendant's failure to properly seal the redundant bolt holes. The onus is on the Plaintiff to prove and establish the use of bondafill to seal the holes was the reason for sinking on balance of probability.
    
40. The alleged negligence should be confined only to the above and not on other grounds.
    
41. However, in my view, the Defendant is entitled to establish in cross examination of the Plaintiff's witnesses that there could have been other possible causes for the sinking of the vessel. I unable to accept the argument advanced by the Plaintiff's counsel that the Defendant is not entitled to cross examine the witnesses on any other possible causes in the absence of any pleading to that effect in the Statement of Defence. I further conclude that the only allegation against the Defendant was that it failed to seal properly and such failure caused the vessel to sink and the Defendant specific denial on that allegation gives rise to the Defendant to adduce evidence on other possible causes to establish that sinking was not due to alleged ground of negligence.
    
42. I observe that conflicting views adduced in the evidence of the witnesses pertaining the possible causes of the sinking of vessel. The evidence of Mr Miller, Mr Tafalagi, Mr Ah Sam was mainly to the effect that the use of bondafill which was not a sealant but a filler was a cause whereas Mr Lee's evidence was that the condition of the hull was the cause.
    
43. The three reports prepared by the Toplis on behalf of insurer and John Rounds, on behalf of Fiji Islands Maritime Safety Authority is relatively independent and impartial in assessing the evidence before court. This court is not only mindful of the independency and impartiality of three reports but also their expertise and the competence in the respective field to form an opinion on the possible causes of the sinking of the vessel.
    
44. The documents in the agreed bundle of documents, marked and produced as P27 is the preliminary report prepared by the insurer on the fact provided by Mr Miller.
    
45. Preliminary report concluded the likely cause of the sinking of the vessel as follows:
    

"Preliminary findings point towards the vessel having sunk due to entry of seawater from two fatigue cracks in her hull bottom. It is not known when the cracks developed however as the vessel had only recently performed a lengthy ocean passage it is conceivable that the cracks resulted from pounding or slamming stress possibly associated with operation into a head sea at excessive speed."

46. The Document 27 in the agreement bundle of documents is the final report prepared by the insurer, which was marked as produced as P28 it concludes;
    

"Apparent Cause of Casualty

The vessels sinking is in our opinion attributable to inundation of the enclosed double bottom void space with seawater causing a progressive loss of buoyancy coupled with free surface effect. Inspection of the vessel confirmed that the deck seals to the enclosed void were tight and that water trapped on the deck would not gravitate to the enclosed under deck void.

External inspection of the hull showed two deficient area capable of permitting ingress as follows:

1. The vessels bottom had two confirmed, and up to a maximum of four hairline fatigue cracks in the starboard side. The cracks were not considered to have the potential to rapidly admit seawater in the manner that occurred resulting in the sinking of the vessel either a period of some 2 hours.
   
2. The vessels transom once carried twin Mercury outboard motors. Upon removal of the Mercury's to provide for the fitment of the new Suzuki outboards the original engine thru transom bolt holes normally require to be filled with a sealant or being blanked permanently by fitment of welded patches over the bolt holes. It is conceivable that seawater may have gravitated through the original bolt holes into the void space once the holes immersed upon changes of trim with the vessel becoming stationary after its voyage from Suva."
   
47. The Fiji Islands Maritime Safety Authority report prepared by John Rounds was tendered as D1. The Fiji Islands Maritime Safety Authority report concludes:
    

"Conclusion

From the evidence readily available and the reported commends made of the hull and in particular the state of the hull plating, it would be reasonable to suggest that the major cause of the leakage which resulted in the vessel's sinking stems from the four cracks found on the starboard hull. Since the vessel was moored at the RSYC over night after a four hour sea trial is a good indication that the silicon sealant used to seal the holes in the transom was effective. It is therefore apparent that operating the vessel through heavy weather at high speed has taken its toll, especially on the hull known to be much thinner than the original design thickness.

Without the mandatory registration and subsequent surveys required of such vessels coupled with the apparent lack of effective maintenance, the vessel should have the hulls totally renewed. However given its age and the damage sustained in the recent sinking, a better option would be for the vessel to be replaced."

48. It is to be noted that preliminary report and final report of Toplis was tendered as evidence through Mr Qulinamakelo. His evidence was that both reports were prepared by Mr G. P Giru and Mr Worthington respectively. Neither of them were called to give evidence and there was no opportunity for the Defendant to cross examine either of the two reports and the witness in his evidence testified in answering to certain questions that the best person to answer some questions was the attending surveyor at the vessel who prepared the report.
    
49. The evidence of Mr Nelson Tafilagi should also be assessed cautiously for the reason that his services were terminated by the Defendant when he was an employee of the Defendant. It was also admitted that there was a complaint against him to the police alleging that he was in possession of the welding jacket owned by the Defendant which was subsequently returned after the intervention of the police.
    
50. It is further noted that even some of the Plaintiff's witnesses in their evidence did not rule out the possibility that the damage would have been caused to the vessel sinking at its mooring and hitting the sea bed causing the bolt holding to engine to the ransom to move which may give rise to the water coming out from the right bottom bolt.
    
51. It is also important to state that the Plaintiff's last witness testified that boat people use bondafill for sealing because it is cheap. However he stated that rubberized sealant would have been the correct sealant to use to cover up the redundant bolt holes.
    
52. I am not convinced on the totality of evidence that the Plaintiff proved its claim on the balance of probability. In all the circumstances, I am not inclined to accept the Plaintiff's claim and dismiss same.
    

The Defendant's Counter Claim

53. The Defendant made a counter claim for a sum of $15,800.32 being the balance on the invoice for the work carried out on the vessel. The following issue was raised at the pre trial conference in this regard.
    
54. Issue 5: Is the Defendant entitled to the balance of its payment being $15,800.32 on the vessel?
    
55. In my judgment I have concluded that the Plaintiff has not satisfied this court on the balance of probability the alleged negligence of the Defendant. There is no dispute on the balance amount as the Plaintiff has already deposited the balance outstanding in the Trust Account of the Cromptons solicitors until the conclusion of the mater. In view of the above reason, I answer to the issue No. 5 raised at the pre-trial conference on the counter claim in favour of the Defendant.
    

Orders

[a] The Plaintiff's claims are dismissed.

[b] The Defendant is entitled to be paid in a sum of $15,800.32 as the balance outstanding on the invoice.

[c] A sum of $3,000.00 is payable by the Plaintiff to the Defendant as costs, summarily assessed.

Susantha N. Balapatabendi
JUDGE