Gerald'S Machine Shop Limited v. Melina & Keith Ii (The), docket T-2704-94

     T-2704-94

Action in rem against the ship "MELINA & KEITH II"

B E T W E E N:

     GERALD'S MACHINE SHOP LIMITED

     Plaintiff

     - and -

     THE OWNERS AND ALL OTHERS INTERESTED

     IN THE SHIP "MELINA & KEITH II"

     Defendant

     REASONS FOR JUDGMENT

CAMPBELL J.

     Let the attached transcript of my Reasons for Judgement delivered orally from the Bench in St. John's, Newfoundland, the 12^th day of May, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.

                         Douglas R. Campbell

                         Judge

OTTAWA

May 27, 1997

     This is a straight forward case involving a lawsuit around a contract for repairs. There has been some conflict in the evidence, but I do not think that the conflict is of such a nature that it precludes me from making certain critical findings of fact. I do not intend to go over the documentary evidence and the requests for payment in certain amounts, except to say this; I find that all the work that was done, as Mr. Fennemore has described in his evidence, was done professionally, it was done reasonably, and his costing for that work is accurate.

     The second question relates to exactly what was this contract? Indeed the central part of it initially started off to be building the A frame together with other factors which are somewhat in dispute. There is one thing that I can find in relation to both sides of this case, and that is that there is no doubt that the Baccalieu Challenger price was quoted and agreed to for the work that was done to that boat. And if Mr. Ralph, frankly, misunderstood what was being done to that boat, I think that that is his responsibility, not Mr. Fennemore's. That boat had an A frame erected with table at a cost, I find to be, of $17,000.00. That sum is due and owing for that particular part of this project. Indeed, there is no contest about the winches at $17,000.00. So, for the A frame and one box plus $17,000.00 for the winches, I find that $34,000.00 has been proved as owing.

     However, there are four separate items which are still in dispute. They are: the work to the forecastle by putting in the door and erecting the angle irons for the bunks; the shucking tables and water box; changes to the A frame; and changes to the table.

     As to the issues around the forecastle, the shucking tables, and the water box, I find equal responsibility on both Mr. Fennemore and Mr. Ralph for the misunderstanding that arose here. I do not intend to try to take the evidence and find one person is right and the other person is wrong. I think both are clearly wrong in a sense that there was such vague conversation and so much room for misunderstanding around these two items that each much bear the responsibility for that.

     Now, to take a principled approach to how to actually quantify this item, I accept Mr. Fennemore's evidence as accurate for the work that he did. On the forecastle he tells me that he spent 6 man days of work on that particular item. And for the shucking tables and water box, etcetera, he spent 4 man days on them. The total of this I find is 115 hours. If I take it at the rate which is normally applied, that is $30.00 an hour for these two features, the amount that would normally be charged, but for the misunderstanding, would be $3,450.00. Sharing equally in the situation regarding these two items, I find that Mr. Fennemore is due $1,725.00. So, first we have $34,000.00 and then we have $1,725.00 owing.

     On the last two features which are changes, there is a disagreement on the degree to which the work had been actually completed before any changes were requested, and indeed, how much change there needed to be. I find on this that Mr. Ralph's evidence regarding what he thought it would take in terms of time and complexity is sheer conjecture and I put no weight on it. I accept Mr. Fennemore's evidence. The work, whatever problems they experienced, was done professionally, and as I have already found, it was done reasonably. The changes to the A frame involved a fair amount of work. It was not just as simple, I find, as Mr. Ralph said it was. It was not just a little bit of work, it was major work. The bills substantiate this. The bills show a great degree of work went into this whole contract and this particular part of it was a significant element.

     So, for these latter two pieces, being the changes to the A frame and the tables, on the evidence Mr. Fennemore gave, these came to a total, as well, of 115 hours of labour time. I find that Mr. Fennemore is entitled to the whole of this amount, if I just take it at the labour cost, of $3,450.00. In relation to these items, I cannot dissect the costs that should be payable for materials. But, I think, given the confusion that has arisen in this contract, whatever material costs these latter two features encompass, Mr. Fennemore takes responsibility for those.

     Therefore, if I add these three figures the way I've described them, $34,00.00, $1,725.00 and $3,450.00, I find that Gerald's Machine Shop under this contract is due $39,175.00 plus GST on that amount, which I am not going to calculate here.

     On the question of interest, I must say that Mr. Ralph not paying over what anybody would have found to be reasonable in this case, at the time that it was due and owing, is entirely his responsibility. He made an offer in the sum of $35,000.00; let's take it at that. It's quite close. There is no reason why he couldn't have paid it over and disputed the rests. So he, on that amount, $35,000.00, from the date of the account, which is July 19, 1994, will pay the rate of interest, not compounded but simple interest, at 12 percent per annum.

     Regarding costs, this lawsuit probably didn't need to go as far as it did, but since it did, the usual rule applies and I see no reason to deviate from it. The winner gets cost. So, the winner in this case, which is Gerald's Machine Shop, gets costs. Costs I find are best calculated in Column 3 at Tariff B of the Federal Court Rules.

     In terms of post judgment interest, interest should start to run from today's date, if in fact, this judgment isn't paid I frankly do not know what the registry rate is at this moment, but it will be calculated at the registry rate.