David Mitchell v B J Marine Limited
| Jurisdiction | Northern Ireland |
| Judge | Mr Smith |
| Judgment Date | 2005 |
| Neutral Citation | [2005] NIQB 72 |
| Date | 28 October 2005 |
| Court | Queen's Bench Division (Northern Ireland) |
1
Neutral Citation No. [2005] NIQB 72
Ref:
SMIF5402
Judgment: approved by the Court for handing down
Delivered:
28/10/05
(subject to editorial corrections)
2004 No. 21808
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION
(COMMERCIAL LIST)
________
BETWEEN:
DAVID MITCHELL
Plaintiff:
-and-
B J MARINE LIMITED
Defendant.
_________
Mr P D Smith QC
Introduction
[1] On 24 February 2004 the plaintiff signed a document by which he
agreed to purchase from the defendant a Cranchi Endurance 41 motor cruiser
for the sum of £162,500, including VAT. On that date Mr. Mitchell paid
£32,500 of the purchase price and, in accordance with the agreement, paid the
balance of £130,000 when the boat left the factory.
[2] The vessel was delivered to the plaintiff in June 2004. In July 2004 the
plaintiff purported to reject the boat and rescind the contract. The defendant
would not accept the return of the goods and the plaintiff brought these
proceedings seeking return of the price and damages.
2
The Material Facts
[3] As the name implies, the Endurance 41 is about 41 ft. long. It was
manufactured in Italy by Cantiere Nautico Cranchi SRL. Its hull is of
fibreglass construction and it is powered by two Volvo Penta D6 diesel
engines. The vessel has sleeping, cooking, washing and toilet facilities as well
as accommodation below deck for sleeping and relaxation. As designed, the
standard of comfort of the boat is high. Its size and structure, together with
its powerful engines and navigational equipment, would - or should - have
enabled it to sail in safety to Scotland or France or even further afield.
[4] The vessel was delivered to the plaintiff at the defendant's premises at
Bangor, County Down on 16 June 2004. Prior to that it had undergone a sea
trial in which the plaintiff participated and in the course of which a couple of
instruments were found to be malfunctioning. Other problems with other
instruments were experienced during the ensuing few days and, in addition,
on the day after delivery the plaintiff noticed salt water in the bottom of the
boat which he drew to the defendant company's attention on the next day. By
Sunday 20 June the water had reached almost 100 mm in depth. The plaintiff
discovered that the cause of the ingress was a hole in the transom through
which a tube or cable passed and which was badly fitted, thereby, in certain
circumstances, permitting sea water to enter the engine compartment of the
vessel.
[5] The plaintiff effected a temporary seal to the hole and on Tuesday 22
June 2004 he faxed Mr. Bernard Gallagher, managing director of the
defendant company, setting out his concern about the hole in some detail. He
said that he would not accept the mere sealing of the hole because it might
come under positive water pressure. He reminded Mr. Gallagher that his
purpose in buying the boat "… was to provide maximum reliability for my
family boating in the long term" and he expressed the opinion that Cranchi
should be urgently informed of "the serious potential."
[6] The fax also referred to the washing of the engine bay and engines, an
electrical problem on the port engine and a number of other unspecified
problems which Mr. Mitchell did not believe to be critical and of which he
promised a complete list "including action." The plaintiff went on to say that
his wife, his children and himself were generally very pleased with the boat.
[7] On Wednesday 23 June 2004 Mr. Mitchell faxed Mr. Derek Craig of
Robert Craig & Sons (Engineers) Limited the local Volvo Penta ("Volvo")
agents detaining a number of instrument malfunctions which had already
been the subject of discussions. On Friday 26 June 2004 the boat was returned
to the defendant's premises at Bangor, lifted out of the water, and the hole in
the transom photographed. The plaintiff was told that a member of the
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