Mooney v. Irish Geotechnical Services Ltd. [1997] IEHC 36 (24th February, 1997)

1. The plaintiff is a chartered accountant in private practice and he is the owner of the yacht "Striopach". She is a Countess 28 cruiser/racer, being 28 ft. overall length and 4.04 tonnes displacement. The hull was built in 1981 by Colvic, a well-known English manufacturer which specialises in building hulls for completion and fitting-out by the purchasers or boat builders on their behalf. The hull for "Striopach" was purchased from Colvic in 1981 by Mr. Tony Kingston, a director of Kilmacsimon Boatyard Limited, Bandon, County Cork. It is not in dispute that it was fully fitted out to a high standard at Mr. Kingston's yard. The yacht was launched in 1985 and was used by Mr. Kingston for cruising each season until 1991. She was maintained in excellent condition and in that year was sold to the plaintiff for £21,750. This sum included £750 for a rubber tender. Allowing for the cost of a mortgage, registration and other expenses, the plaintiff's final outlay was £24,000. He took possession of the yacht on 2nd August, 1991. Eighty Countess 28's have been built. There are three in Ireland, including the plaintiff's yacht, and the remainder are in the United Kingdom. Most of them are twin bilge-keelers and the remainder are single keel boats like "Striopach". The former are primarily intended for use in shallow waters, such as many parts of the east coast of England. Having two keels, they are able to take the ground upright when they dry out at low water. A disadvantage is that they are slower and more cumbersome than the single keel models. As the main yachting centres in the Dublin area are deep-water, bilge-keelers are of little interest there.

2. The plaintiff is a member of the Dun Laoghaire Motor Yacht Club and keeps his yacht on club mooring B2 near the bight of the west pier in Dun Laoghaire harbour. The plaintiff has used the yacht primarily for family cruising and it is also not in dispute that he has maintained her up to a high standard and she has been at all material times in excellent general condition.

3. The defendant company was in 1993 the owner, operator and manager of a pontoon drilling barge. In September of that year the defendant was engaged in drilling operations at Dun Laoghaire harbour. On or about 27th September the "Striopach" was lying to her club mooring and the defendant's barge was at anchor nearby. On the night of 29th/30th September in course of a severe gale, the barge dragged her anchor and struck the yacht on her starboard aft quarter causing her serious damage over a substantial area. For many months after the event the defendant's staff and advisors believed that there had been no negligence in relation to the barge and that the cause of the damage was that "Striopach" had dragged her mooring and struck the barge. Ultimately, it emerged that the yacht had remained firmly moored at all times and that the offending vessel was the barge. The significance of this is that the insurers of the latter took no interest in the damage done to the yacht and did not investigate the plaintiff's claim as to damages until long after repairs had been carried out.

4. At the time of the accident the yacht had been insured by the plaintiff for damage up to a maximum sum insured of £22,500 with a Lloyds syndicate in London through the agency of a Dublin broker. The latter was informed of the claim on 30th September. The boat was removed to a cradle at the coal quay, Dun Laoghaire on that date and she was inspected on 1st October by Mr. Ken Dixon, a marine surveyor, on behalf of the plaintiff. He furnished a written report dated 8th October. He described damage done to the yacht at several places, the most important being a hole 5 ft. long by 4 ft. deep at the aft starboard quarter extending into the transom. In a covering letter Mr. Dixon stated:-

"........ However, in view of the nature and location of the damage it will be prudent to obtain an alternative price for stripping out the existing hull and refitting all the undamaged items into a new hull. Care should be taken to ensure that any repair organisation entrusted with this work are fully competent to carry out the necessary work and also furnish you with appropriate guarantees."

5. The plaintiff decided to obtain an estimate for repairs from Kilmacsimon Boatyard Limited. He was aware that they had appropriate facilities for carrying out the work and from personal experience he had a high regard for their reliability and workmanship. In the light of Mr. Dixon's advice, he ascertained from Colvic that the cost of a new hull, including transport to Ireland, would be £11,500 sterling. The cost of stripping out the original hull and refitting all parts etc. would bring the grand total up to approximately £43,000. In short, that was not a viable alternative to repairing the existing hull. The plaintiff also considered the remaining alternative. i.e., to purchase a second-hand Colvic Countess 28. He perceived that in all probability there would be difficulty in finding a fin keel version in the U.K. of comparable quality and that the search would be likely to involve the expense of several visits to Britain which in the end might be futile. He ascertained that similar second-hand Countess 28's were fetching from £20,000 to £25,000 sterling and his evidence in that regard was not challenged.

6. The plaintiff had the yacht transported to Bandon and he obtained an estimate from the Kilmacsimon Boatyard in the sum of £19,830 together with a handling and commissioning account of £511.87 making a total of £20,342. He decided to accept the estimate and to have the boat repaired. He did not obtain any other estimate. He was aware that his claim on the defendant would also include other items, including depreciation arising out of the damage and loss of equipment which collectively would bring the grand total above the maximum amount covered by his insurance policy. He instructed the boatyard to proceed with repairs and, for reasons which I do not understand, he decided not to claim the actual cost of repairs from his own insurers but to pay all expenses himself. This entailed raising a bank loan of £20,000 which in the end has given rise to a substantial liability for interest.

7. Mr. Kevin O'Mahony, a marine surveyor who practises from Cork, was instructed by the plaintiff to survey the yacht and to advise on the liability issue which was then alive. He gave evidence that he found the yacht to be very well constructed and maintained. In his words it was "most impressive". He obtained a break-down of the repairs estimate and he believes that the amount charged was fair and reasonable. At that time there were five other boatyards capable of carrying out the required repairs - one in Dublin, one in Wicklow, one in Portumna and two in Cork. He thought that the salvage value of the yacht would have been between £5,000 and £8,000. His estimate of her pre-accident value was £23,000 to £25,000. He estimated depreciation as a result of the damage at 10% of the insured value. He was surprised that the defendant's insurers had not appointed a surveyor on a "without prejudice" basis to examine the yacht promptly and to have some in-put into the plaintiff's decision as to what should be done.

'Prima facie, the damage occasioned to a vessel is the cost of repairs - the cost of putting the vessel in the same condition as she was in before the collision, and to restore her in the hands of the owners to the same value as she would have had if the damage had never been done; and prima facie, the value of a damaged vessel is less by the cost of repair than the value it would have if undamaged................'

10. The cost of repair is, however, appropriate only if in the circumstances it is reasonable for the plaintiff to effect the repair: it might be cheaper to buy a replacement on the market and sell the damaged goods for what they will fetch. Thus in Darbishire -v- Warran , [1963] 1 WLR 1067 at (C.A.), Harman L.J. went on to point to the exception where:-

1. The plaintiff had two alternatives arising out of the damage done to his yacht, i.e., to have her repaired or to purchase a comparable alternative boat. Although there would have been many other second-hand cruiser/racing yachts in the 28-30 ft. range on the market in the winter of 1993/4, it was reasonable for the plaintiff to confine himself to Colvic Contessas similar to his own yacht. A second-hand boat up to the standard of "Striopach" probably would have cost in the region of £23,000-£25,000 sterling. It might have necessitated several visits to the U.K., to inspect prospective purchases and perhaps ultimate disappointment. Apart from travelling and related expenses, it is likely that he would have incurred also surveyor's fees and, if successful in finding a similar yacht, the cost of registering the replacement. Even allowing for the salvage value of the existing yacht, it was not unreasonable for the plaintiff to accept the Kilmacsimon estimate for repairs which clearly did not greatly exceed the pre-accident value of his yacht. His duty to act reasonably in the interest of the wrong-doing defendant, did not extend to burdening himself with the trouble and expense of seeking out an alternative comparable second-hand fin keel Contessa 28 in the U.K. - a task which ultimately might have been futile.

3. The plaintiff had no obligation to obtain alternative estimates from other repairers. It was reasonable for him to select a boatyard with which he had personal experience and confidence. The nature of the work was such that it required a high degree of skill and the plaintiff knew that he could rely on Mr. Kingston's firm to carry out the repairs up to the standard required.

4. The plaintiff is entitled to depreciation on the value of the yacht in consequence of the major damage which it suffered, even though satisfactory repairs have been carried out. Prospective purchasers are likely to enquire whether the boat has suffered any substantial accidental damage. I accept the evidence of Mr. Alan Black, yacht broker, who gave evidence on behalf of the defendant, that the appropriate rate is 5% of value, i.e., £1,250.

5. I am not satisfied that there was any necessity for the plaintiff to borrow £20,000 from his bankers to underwrite the cost of repairs. He ought to have arranged with his own insurers to pay the repair bill and then include reimbursement of their outlay in that regard in his own claim on the defendant. The claim for interest is adjusted accordingly and measured at £500.

9. The plaintiff has claimed £4,350 for net loss of professional income in respect of time taken by him in dealing with the consequences of the accident, including several visits to the Kilmacsimon Boatyard while repairs were in progress. He has not furnished any evidence in support of his assessment of loss under that heading. However, the likelihood is that the plaintiff would have suffered some net loss of earnings and he is also entitled to compensation for the general hassle which the accident and its consequences have caused him. I assess damages for these items at £2,500. Accordingly, the total value of the plaintiff's claim is £25,993.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mooney v. Irish Geotechnical Services Ltd. [1997] IEHC 36 (24th February, 1997) URL: http://www.bailii.org/ie/cases/IEHC/1997/36.html Cite as: [1997] IEHC 36

High Court of Ireland Decisions

Mooney v. Irish Geotechnical Services Ltd. [1997] IEHC 36 (24th February, 1997)