Murdo Donald Macdonald V. Robert And Elizabeth Pollock
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Brodie,Lord Eassie |
| Judgment Date | 14 February 2012 |
| Neutral Citation | [2012] CSIH 12 |
| Court | Court of Session |
| Published date | 14 February 2012 |
| Docket Number | XA59/10 |
| Date | 14 February 2012 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Brodie Lord Osborne | [2012] CSIH 12 XA59/10 OPINION OF THE COURT delivered by LORD EASSIE in the cause of MURDO DONALD MACDONALD Pursuer & Appellant; against ROBERT & ELIZABETH POLLOCK Defenders & Respondents: _______ |
Alt: Sandison, Q.C.; Thomson; Morton Fraser LLP for Anderson Banks, Oban
14 February 2012
Introduction
[1] This appeal is taken against a decision of the sheriff principal of North Strathclyde in which he allowed an appeal against an interlocutor of the sheriff at Oban by which the sheriff granted decree in favour of the pursuer - the appellant in this court - for payment by the defenders and respondents of the sum of £75,000.
[2] The litigation arises out of a contract concluded in September 2002 for the sale by the defenders to the pursuer of a former fishing vessel, the "M.V. Monaco", which had earlier been converted for use as a cruise vessel by the provision of appropriate passenger accommodation. The defenders are a partnership trading under the firm name or style of "Western Isles Cruising" and prior to the sale of the vessel they exploited the vessel commercially by providing cruises to their customers. The pursuer carried on a similar business under the style of "Island Cruising" from his base in Uig, Isle of Lewis.
[3] In outline, the contract for the sale of the "Monaco" was concluded by an offer faxed to the defenders by the pursuer on 16 September 2002 in which he offered to buy the vessel for £75,000. That offer was accepted by a letter dated 17 September 2002. Prior to making the offer, the pursuer had instructed a marine engineer - Mr John Bain - to carry out a general survey of the vessel, which was lying at Corpach and shortly to be slipped. Following Mr Bain's inspection of the vessel at Corpach, which did not involve any sea trial, the pursuer received a favourable oral report from him. Later, on 11 September 2002, the pursuer met with Mr Robert Pollock of the defenders on the vessel at Lochaline and a short sea trial was carried out. Thereafter the contract was concluded and the pursuer took delivery of the vessel on 20 September 2002 at Oban, having paid the price. On the following day he set off towards Lewis.
[4] On that voyage it became apparent that the engine was using up excessive quantities of lubricating oil. On eventual arrival in Stornoway the engine was inspected by a marine engineer - Mr Tony Morrison of Morton McKenzie & Co Ltd. He confirmed what had been noted by another engineer when the vessel had put into Scalpay en voyage to Lewis, namely that there was a weld on the lower part of the engine block between the engine sump casings and the crank case whence oil was leaking. Further, Mr Morrison noted that the bolts holding down the engine were loose, which indicated, in the view of the engineer, the existence of some underlying internal problem which required the engine to be dismantled or stripped down in order that that problem might be identified and rectified. The cost of that exercise was estimated at around £50,000.
[5] Upon receipt of that advice the pursuer telephoned Mr Robert Pollock. The sheriff held that in that telephone call the pursuer unequivocally rejected the vessel. Whether the pursuer did thus unequivocally reject the goods is a matter in issue in the proceedings. Since the making of that telephone call the vessel has remained berthed in Stornoway. No use has been made of her by the pursuer, nor have any repairs or maintenance been carried out.
[6] While the foregoing is a summary of the events, it is nonetheless appropriate to set out in full the findings in fact which were made by the sheriff:
"1. Since November 1977 the Pursuer has operated a Boat Charter Business trading under the name "Island Cruising" from the address shown in the instance. The Defenders operate and operated in 2002 a Boat Chartering Business trading under the name "Western Isles Cruising" from the address shown in the instance.
2. In or about 2002 the Pursuer answered an advertisement in "Boats and Yachts for Sale" (Pursuer's Sixth Inventory - Production 2) which offered for sale a "converted fishing vessel" called the "Monaco". He contacted the First named Defender on or about the 20/21 August 2002 and was advised by him that the vessel was still for sale and was slipped at Corpach.
3. The Pursuer thereafter instructed John Bain, a Marine Engineer with "Marine and Engineering Services Hebrides" to carry out a general survey of the boat. Notwithstanding that John Bain did not carry out a sea trial of the boat he provided the Pursuer with a favourable verbal report which did not include a detailed report of the condition of the boat's engine. His report in relation to the engine being restricted to a visual inspection of the engine running and checking the engine gauges.
4. On 11 September 2002 the Pursuer and his wife met with the First Defender and Stuart Moir, a friend of the First Defenders on board the "Monaco" at Lochaline. A sea trial of the "Monaco" which lasted approximately 30 minutes was carried out. The Pursuer's examination of the engine as with John Bain's was superficial and comprised of a visual inspection of the outer casings of the engine which could be seen above the floor plates in the engine room. The Pursuer advised the First Defender that Stuart (sic: John) Bain had not carried out any detailed examination of the engine.
5. On completion of the sea trial and on being advised by the First Defender that the engine was in "excellent" and "perfect" condition, the Pursuer advised the First Defender that he wished to purchase the vessel and the parties shook hands.
6. On 16 September 2002 the Pursuer forwarded a formal offer to purchase the "Monaco" for £75,000 (Pursuer's First Inventory - Production 2) which offer was accepted by the First Defender on 17 September 2002 (Pursuer's First Inventory - Production 3).
7. It was agreed that the First Defender would bring the boat to the North pier at Oban in order for the Pursuer to take delivery. On Friday 20 September 2002 the Pursuer accompanied by his wife and brother-in-law took delivery of the boat at Oban. After payment of the agreed price the Pursuer was advised by the First Defender that the only problem with the boat was with a fuel injector pump. In addition he was advised that if too much oil was put into the engine it would be thrown out through the exhaust.
8. The pursuer and his crew departed Oban harbour for Tobermory at 3.20pm on 21 September 2002 intending to proceed ultimately to Stornoway. The journey to Tobermory was unremarkable.
9. On 22 September 2002 the Pursuer and crew departed from Tobermory for Lochmaddy. Shortly after their departure the fire alarm sounded in the engine room. It was discovered that the exhaust lagging was smouldering. After dousing the lagging and initially diverting at reduced speed to Mallaig the boat continued on its original course to Lochmaddy.
10. At Neist Point the oil level alarm sounded. Five litres of oil was added to the engine. The oil level alarm sounded again before the boat arrived at Lochmaddy. At Lochmaddy oil was discovered in the boats bilges and the "oil level" in the engine was found to be well below the minimum. Thirty litres of oil was added to the engine before the boat proceeded on to Scalpay.
11. In Scalpay the boat's engine was examined by Murdo MacLeod, a Marine Engineer. On removing a screwed down floor plate a weld on the engine block which leaked oil was revealed. More oil was added to the boat's engine before proceeding at a reduced speed to Stornoway.
12. In Stornoway the boat's engine was examined by Tony Morrison, a Marine Engineer, whose report is Production 1 of the Pursuer's First Inventory. The weld on the engine block was between the engine sump casings and the crank case and was porous. It was an unsuccessful attempt to stop oil leaking out of the engine. In addition oil leaked from several of the main securing bolts which were slack and several of the holding down bolts were packed with repair compound. To simply tighten the bolts could have exacerbated an underlying problem. None of the defects in the engine and referred to in the report by Mr Morrison were drawn to the attention of John Bain or the Pursuer by the Defenders or anyone acting on their behalf.
13. The First Defender was aware when he sold the boat to the Pursuer of the weld which he had personally authorised. He was aware that the repair had been unsuccessful and that oil leaked from it. He was aware that the boat used excessive amounts of oil and that the engine required to be repaired. In agreeing to purchase the boat the Pursuer relied on the First Defender's description of the engine.
14. The boat's log book which was found in the Deckhouse of the boat after the Pursuer had purchased the boat demonstrated that the boat used excessive amounts of engine oil.
15. Production 3 of the Pursuer's Sixth Inventory is a record of a telephone conversation which took place on 25 September 2002 between the pursuer and the First Defender. This conversation amounted to unequivocal rejection by the Pursuer of the boat.
16. Since the Pursuer's telephone conversation with the Defender on 25 September 2002, the "Monaco" has remained berthed in Stornoway harbour. The Pursuer has carried out no maintenance work on the vessel nor has he paid harbour dues."
[7] Having made those findings in fact the sheriff, in his consequent findings in fact and law, thereafter held, in summary, that the vessel sold was of unsatisfactory quality; that the defenders were thereby in material breach of contract; that the pursuer, having rejected the vessel, was entitled to repudiate the contract; and that the pursuer was entitled to repetition of the price of £75,000 (that being the...
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