Greatbatch v Sirius Marine Service Ltd

A contractor engaged to perform specialist marine repair work must carry out the agreed work with reasonable skill and care and within a reasonable time. Where remedial work is undertaken after an earlier breach, the contractor remains liable for losses caused by the original breach and must take reasonable steps to complete the remedy efficiently. A surveyor’s involvement does not transfer responsibility for the workmanship. Where a coating system fails because of negligent application, full replacement may be a reasonable and necessary remedy. Loss of use of a pleasure vessel may be recoverable in contract where such use was within the parties’ contemplation, and may also be recoverable in tort.

The claimant engaged the defendant to carry out osmosis treatment to his motor vessel. The defendant performed an inadequate partial treatment in 2010–2011. After osmosis reappeared, the defendant undertook remedial work, but the vessel was not completed within the agreed or reasonable period and the subsequent paint system failed.

The claimant claimed the cost of remedial works performed by another marine contractor, associated expenses, loss of use and wasted expenditure. The issues included the scope of the original contract, the time required for the remedial work, the cause of the paint failure, the reasonableness of the replacement works and the recoverability of the claimed losses.

1. Liability. The defendant had contracted to provide a full osmosis treatment. It failed to remove the original gelcoat and therefore failed to perform the agreed work with reasonable skill and care. The defendant was liable in contract and negligence for the resulting losses.
2. Remedial work. The defendant’s undertaking to remedy the earlier failure carried an express or implied obligation to complete the work within a reasonable time. In the circumstances, reasonable performance required removing the vessel from the water, removing the gelcoat, taking appropriate steps to dry the hull, and completing the repainting before the 2014 season. The defendant’s delay was a serious failure to comply with that obligation.
3. Paint failure. The evidence established that amine blush was present in the paint system. That was the probable cause of the failure and demonstrated negligent application. Hydroscopic action might have accelerated subsequent peeling, but it did not cause the initial failure and did not make local repairs an adequate remedy. Removing and repainting the whole system was reasonable and necessary.
4. Responsibility and mitigation. The defendant remained responsible for the workmanship notwithstanding the claimant’s appointment of a surveyor. The claimant acted reasonably in instructing Cardiff Marine without obtaining the defendant’s approval. The alleged offer by the defendant to remedy the defect was not proved.
5. Damages. The claimant recovered £8,847.92 for repair, transport, lifting and relaunching costs, £660 for surveyor’s fees, £140.25 for a wasted rescue-service fee and £1,320 for one year’s mooring fees. Loss of use was recoverable. Following Liesbosch Dredger (Owners of) v Owners of SS Edison, The Liesbosch [1933] UKHL 2, such loss could be recovered in tort for a non-profit-earning vessel. It was also recoverable in contract because pleasure use was within the parties’ contemplation. The court directed that it be assessed by applying 8 per cent to the vessel’s value for one year, subject to further evidence or submissions.
6. Judgment was entered for the claimant for £10,968.17 plus the amount assessed for loss of use.