R Marine Pittwater Pty Ltd v Skinner  NSWDC 273
District Court of New South Wales 1
- A repairer was held to be bailee of a boat, even where the bailor retained a key and the boat was left at an unsecured mooring.
- However, the repairer discharged his onus of proving that he took reasonable care as bailee, even though the boat was vandalised overnight at an unsecured mooring 450 metres offshore, with the hatch cover removed. A series of particular factors left the repairer with little alternative.
The plaintiff 2 sold a new Riviera 33FB/108 Flybridge Cruiser for a total of $A406,672. The purchasers requested modifications to be made to the vessel before delivery. The plaintiff arranged for these to be carried out by the defendant. The plaintiff moved the boat to a mooring near the defendant's premises, and gave the defendant one of the keys to the boat.
In the course of carrying out the modifications, the defendant removed the centre-rear hatch cover, which incidentally had the effect of permitting access to the engine and sea strainers. Overnight, the defendant left the vessel at the mooring, which was some 450 metres from the shore, and removed the key. During the night, vandals boarded the boat and inflicted malicious damage. This included removing the covers of the sea strainers causing the vessel to sink at its moorings.
The plaintiff later refloated the damaged vessel and arranged for it to be stripped of its damaged components and re-fitted. The plaintiff incurred losses including approximately $253,000 to strip and re-fit the vessel and additional salvage costs. The vessel was then resold "as new" to another purchaser for $390,000.
The plaintiff sued the defendant as bailee of the boat for its various losses in the District Court of NSW.
The defendant contended that it was not a bailee. It argued that because the plaintiff had retained a key to the vessel, exclusive possession had not been conferred upon the defendant and therefore the possession did not amount to a bailment. The defendant relied upon the case of Vickers v Double Bay Marina Pty Limited 3 where it was held that the repairer did not have possession because the owner had retained a key. However, Levy DCJ distinguished Vickers because in that case the vessel continued to be moored at the owner's private berth.
The defendant also contended that the plaintiff held the boat as agent for the purchaser and therefore had no standing to bring the action. Levy DCJ however held that the plaintiff was itself a bailee of the purchaser and had created a sub-bailment to the defendant on which it was entitled to sue.
As the vessel had been left undamaged in the custody of the defendant as a bailee, it was obliged to exercise reasonable diligence in taking care of the vessel.4 The fact that the vessel was damaged whilst in the custody of the bailee gave rise to a rebuttable inference of a failure to exercise due skill and care. The onus for the rebuttal of that inference lay on the bailee.5
In all the facts and circumstances Levy DCJ found that the defendant had discharged that onus. He noted a number of particular circumstances:
- There was no evidence that the defendant worked near the sea strainers.
- The vessel was appropriately tied up at a mooring 450 metres from the shore, which created a barrier to access.
- It was not feasible for the defendant to keep the vessel in a locked area or at a berth closer to the workshop and this would not have deterred a determined vandal in any case. It was speculative to suggest that lighting and security cameras would have deterred such conduct.
- From a practical perspective it was reasonable for the defendant to remove the hatch covers and leave them off overnight without being negligent.
- Even locked hatch covers have at times proven to be no obstacle to vandals.
- Levy DCJ considered it was impractical for the defendant to use temporary covers of plastic or other materials nor was there any evidence that these would have prevented the damage.
In view of the above circumstances, and in a situation where the vessel had been maliciously damaged, Levy DCJ held that the defendant had discharged his onus to show that he took reasonable care to avoid the vessel being damaged whilst it was in his custody and possession.
The repairer's success in defending this claim turned on several favourable factors. Whilst the judgment serves as a warning to plaintiffs to examine carefully the evidence relating to negligence, even where a bailee bears the onus of proving that reasonable care was taken, it is suggested that repairers would normally be expected to take greater precautions than occurred in this case.
In a case where a repairer has access to a locked area, or a supervised or floodlit berth, or where it is not so clear that damage is malicious, a court may well arrive at a different result.
1. Levy DCJ, 29 October 2009
2. A number of related companies were also involved with the plaintiff in this matter, however nothing turned on this.
3. NSWDC, unreported 5 November 2007.
4. Califf v Danvers (1792) Peake 155.
5. Jacap Low Loaders v Lindores Plant and Equipment  NSWCA 5.
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