Pantaenius Gmbh v H2O Ltd

• Jurisdiction: Grenada
• Judge: Actie, J.
• Judgment Date: 29 November 2024
• Neutral Citation: GD 2024 HC 47
• Docket Number: CLAIM NO. GDAHCV2023/0063 (FORMERLY GDAHCV2021/0001)
• Court: High Court (Grenada)

Between:

Pantaenius Gmbh

Claimant

and

H2O Ltd.

Defendant

Before:

The Hon. Mde. Justice Agnes Actie High Court Judge

CLAIM NO. GDAHCV2023/0063 (FORMERLY GDAHCV2021/0001)

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

(CIVIL)

Appearances:

Mrs. Afi Ventour De Vega, Ms. Yurana Phillip, Ms. Aloytha Thomas and Ms. Veronica Plenty for the Claimant

Mrs. Sandina Date Oseu-Gyau and Ms. Marion Suite for the Defendant

RUILING

Actie, J.

1 This a claim in negligence against the defendant for the destruction of a catamaran vessel moored at its marina. The claim stands dismissed for the following reasons outlined in this ruling.

Background

2 The claimant is an insurance company, and the insurer of a sailing catamaran vessel named “Safari”, which was destroyed in the defendant's mooring field “Prickly Bay Marina” (hereafter referred to as “the Marina”). Safari was owned by one Oliver Christopher Jansen who assigned his right to the claimant to bring all actions in respect to the vessel.

3 By claim form filed on 18 ^th January 2021, the claimant claims among other things, general damages for negligence together with special damages comprising of pre collision value of the vessel of EC$3,344,835.14 and costs of salvaging the vessel and removing the wreck and debris in the sum of EC$175,725.75,together with interest and costs.

4 It is the evidence that the Safari arrived at the Marina on 25 ^th February 2019, and its captain Errol Bibby moored the vessel on one of the Marina's mooring ballsnumber 44. The claimant states that after the captain's failed attempts to contact the Marina's dockmaster he went ashore to purchase supplies.

5 The claimant states that upon Captain Bibby's return to the Marina, he noted that the vessel had broken free of the mooring ball, drifted and partially sunk with both of its hulls flooded. The claimant states that Captain Bibby requested emergency rescue assistance from the marina's manager, however the marina had no boat or equipment with which to undertake rescue of the vessel.

6 The claimant states that all attempts to salvage the vessel proved futile. The vessel subsequently broke apart due to adverse sea and weather conditions and was a total wreck.

7 The claimant states that the defendant advertised the marina and offered mooring balls that could accommodate both catamaran and monohull vessels. The claimant avers that the defendant represented on its website that the said mooring balls are inspected and serviced by a professional dive company every six months.

8 The claimant particularized the defendant's negligence as:

• (1) Failing to take any or any adequate measures whether by way of periodic or other inspection to ensure that mooring ball 44 was safe for use;

• (2) Failing to adequately warn patrons of the Marina by means of a clearly visible sign or at all warn that the mooring ball was defective and unsafe for use;

• (3) Permitting the mooring ball to remain in a defective and dangerous state;

• (4) Failing to have on site emergency services for the rescue of a vessel;

• (5) Failing to have a dock master on site to direct the captain of the vessel to a safe mooring.

9 The claimant contends that the defendant implicitly warranted that the mooring balls were in a safe condition for use by vessels and that the defendant had taken all reasonable steps to ensure that they were in safe condition for use. The claimant contends further that the defendant was under a duty to take reasonable care to ensure that the mooring balls were safe and failed to discharge its duty to give adequate or any notice of the defect of the mooring ball to Captain Bibby.

Defendant's case

10 The defendant denies liability and states that its common law duty to take reasonable care arises when a relationship is established between itself and a patron. This relationship did not arise since Captain Bibby unlawfully entered its mooring field and attached the vessel to mooring ball 44 which is admitted was defective.

11 The defendant contends that Captain Bibby did not follow established protocol for vessels arriving at the Marina without prior reservation. The defendant avers that the established protocol of arrival of vessels are:

• (1) The vessel must announce its arrival into the Marina's mooring field by VHF (Very High Frequency) radio to the Marina office;

• (2) The vessel is guided by the Marina office to berth temporarily at one of the Marina's docks;

• (3) The captain of the vessel is greeted by a member of staff at the dock then guided to the Marina office or the captain makes his way to the Marina office;

• (4) At the Marina office, the captain of the vessel:

  • i. Provides the Marina staff with copies of the vessel's insurance policy and particulars of the vessel's dimensions;

  • ii. Completes the Marina's standard paperwork of disclaimer forms and contact information; and

  • iii. Makes an initial payment for use of the Marina's premises based on the period requested and the dimensions of the vessel; then

  • iv. The dock master advises the captain on available and appropriate mooring balls in the field, dependant on the size of the vessel, the weather conditions, location of other vessels or available berthing spots at the Marina's docks.

12 The defendant contends that Captain Bibby did not comply with any of the established protocols. The defendant denies that Captain Bibby made attempts to contact the Marina's office, and states that its entire staff had access to and were within earshot of VHF radios on the day of the incident.

13 The defendant states that all the mooring balls available for use were in good and safe condition, and that it uses an external company to perform inspections and servicing of its mooring balls every six months. The defendant avers that it also uses in-house divers to conduct continuous inspections, maintenance and servicing on its moorings.

14 The defendant states however that mooring ball 44 was unavailable for use on the day of the incident and was so marked with an informal notation of an attached recycled drinking receptacle. The defendant states moreover that Captain Bibby would have been so advised by its staff and directed to alternate means had contact been made.

Expert Evidence

15 The court appointed Mr. Alistair Brett Fairhead an expert in the field of mooring systems, underwater works, marine construction and oceanography. Mr. Fairhead's then company, Underwater Solutions Ltd., was engaged by the claimant in the removal of the wreckage following the extant incident.

16 Mr Fairhead states that none of the moorings in the mooring field at Prickly Bay at that time was designed for such a large vessel as the Safari. Mr. Fairhead in his report states that:

“…the vessel Safari was way more than 20 tons which is the maximum that moorings of the type at Prickly Bay could hold. In fact, Safari was a large vessel of over Thirty-five (35) tons.”

17 Mr. Fairhead states that the Marina had only one mooring that would have been able to accommodate a vessel as large as Safari. Other than that mooring, the vessel would have had to be accommodated on one of the docks of the Marina.

18 Mr. Fairhead also makes reference to the prevailing weather conditions at the time of the incident. He states that wind and sea conditions experienced by a vessel berthed on a mooring system can drastically affect the amount of stress placed on mooring components. He explains that moorings are generally made up of a combination of chain, rope, shackles, thimbles and an anchoring system such as a concrete anchoring block or a helical sand screw.

19 Further evidence is also given by court appointed expert meteorologist, Mr. Wayne Williams. Mr. Williams states that on 25 ^th February 2019 during the hours of 10:00am and 3:00pm, the winds were blowing briskly with speeds of up to 33kmph coming from a generally easterly direction. According to Mr. Williams, the consistency of this direction and speed had the capacity to produce strong swells with waves that could reach up to 6 feet in open waters and 4 feet in sheltered waters. He states that in the time frame specified, winds were consistently from one direction and maintained almost constant speeds, producing a significant amount of wave energy.

20 Mr. Fairhead states that a catamaran can place as much as 4 to 5 times more strain on a mooring during high wind conditions than that of an equivalent sized monohull. Accordingly, careful planning, calculations and risk assessment need to be made when dealing with large vessels that are more readily affected by wind and sea conditions.

21 Mr. Fairhead concludes that whether the particular mooring was faulty or not, any of the moorings available from the Marina at the time of the incident would not have been adequate to hold a vessel of the size of Safari.

Legal Analysis

Whether the defendant owed a duty of care to the claimant

22 The claimant alleges that the defendant's negligence caused loss and damage to the Safari. Before there can be any question of liability to the claimant, the defendant must owe a duty of care in relation to the general class within which the claimant and the type of damage that has arisen, fall 1.

23 The claimant contends that Captain Bibby lawfully entered on to the marina premises in pursuance of doing business and that the defendant failed to discharge its common law duty to the owner of the vessel to give adequate notice or any notice of the defective mooring ball.

24 The claimant avers that the relationship between the parties is that of an invitee and accordingly the...