Iron filings all over Play d'eau

[Piers]

Hi All,

Just as matters were about to go south with lawyers being instructed (we have Legal Aid on the insurance with Traffords) I saw the the owner of Beaucette who hadn't heard of the damage to Play d'eau. Before I'd even finished, he said to tell the repair yard to send the bill direct to the marina. "It's the marina's problem to settle this, not yours," he said.

What a relief.

Works should start next week when she's lifted at Marine & General (St Sampson's) for her annual spa treatments.

 

[NBs]

Hi,

It's great to hear that this tedious event was resolved without the heavy fight of lawyers.

Do you know how the work will be done to repair the damage that has been created?

NBs

 

[Piers]

Hi,

It's great to hear that this tedious event was resolved without the heavy fight of lawyers.

Do you know how the work will be done to repair the damage that has been created?

NBs

The yard which will do the work (M&G, St Sampsons, Guernsey) has discussed the issue with Fleming's recommended GRP specialist. All cleaning will need to be done by hand. Rotary polishing is not an option. The contamination is speckled over the whole boat including the topsides, but mainly on the superstructure. The yard has tested some areas to remove the staining and after a few days there was no visible sign of the stains returning.

This will involve rubbing down with a fine cutting compound to remove the embedded particles of metal, after which a UV wax coating will be applied.

A long and manual job, but returning Play d'eau to her normal shiny self. Thankfully.

As work progresses, I'll post some pics - before and after.

 

[Poignard]

I think I listed my views above. As ever with threads like this, there is quite a lot of mixed up thinking and random insertion of completely misunderstood points. Eg the statement "duty of care" above - how on earth can Twisterowner possibly know that there exists a DoC when he has not read the marina berthing contract ffs? It's just total cr@p as you find on internet forums.
[...]

Regardless of the hysterical remarks in your first paragraph, and the jumble of pseudo-legalese bluster that follows, there is a simple 3-part test to establish whether a duty of care exists. Applying it in this instant:

Q. Was it ‘reasonably foreseeable’ that the boat might be damaged by the marina’s contractor grinding steel nearby? A. Yes.
Q. Was there a ‘relationship of proximity’ between the boat owner and the marina? A. Yes.
Q. Is it ‘fair, just and reasonable’ to impose a duty of care on the marina? A. Yes.

And I'm glad to see that the marina's owners have agreed to put things right; as any reasonable person would expect them to.

 

[jfm]

Regardless of the hysterical remarks in your first paragraph, and the jumble of pseudo-legalese bluster that follows, there is a simple 3-part test to establish whether a duty of care exists. Applying it in this instant:

Q. Was it ‘reasonably foreseeable’ that the boat might be damaged by the marina’s contractor grinding steel nearby? A. Yes.
Q. Was there a ‘relationship of proximity’ between the boat owner and the marina? A. Yes.
Q. Is it ‘fair, just and reasonable’ to impose a duty of care on the marina? A. Yes.

And I'm glad to see that the marina's owners have agreed to put things right; as any reasonable person would expect them to.

Oh heck, a Wikipedia lawyer who doesn't know what he is talking about.

You're 100% correct with the 3-part test applicable to tortious duty of care, but DoCs are very far indeed from sacrosanct and they nearly always can be and are validly overridden/disclaimed where there is a contract. (The case to which the 3-part test is mainly attributed, Caparo, was a case in which there was no contract and no disclaimer).

That's why I said in #1 of my "pseudo" analysis (thanks - while I might be wrong plenty of times there isn't much pseudo when I make a post on legal stuff) that the contract matters as regards the yard/marina. It will very likely validly limit/disclaim/override the marina's liability and duty of care that might otherwise exist tortiously, thereby completely overriding the 3-part test that you incorrectly say is the "simple" answer here.

Beware Wikipedia. It covers topics in isolation.

Separately - good to hear Piers about your positive outcome.

 

[Poignard]

Oh heck, a Wikipedia lawyer who doesn't know what he is talking about.

You're 100% correct with the 3-part test applicable to tortious duty of care, but DoCs are very far indeed from sacrosanct and they nearly always can be and are validly overridden/disclaimed where there is a contract. (The case to which the 3-part test is mainly attributed, Caparo, was a case in which there was no contract and no disclaimer).

That's why I said in #1 of my "pseudo" analysis (thanks - while I might be wrong plenty of times there isn't much pseudo when I make a post on legal stuff) that the contract matters as regards the yard/marina. It will very likely validly limit/disclaim/override the marina's liability and duty of care that might otherwise exist tortiously, thereby completely overriding the 3-part test that you incorrectly say is the "simple" answer here.

Beware Wikipedia. It covers topics in isolation.

Separately - good to hear Piers about your positive outcome.

You seem to be saying that the marina (the supplier of a service) can, by means of an exemption clause in its contract with the marina user (a consumer), avoid the duty of care it would otherwise have.

I don’t agree with that.

Suppose the bits of steel had blown on the wind outside the marina and damaged some property not in any way the subject of the marina contract. For example: a boat berthed in another marina, a car, a house or any other property outside the marina perimeter. Would you say that the marina had no duty of care to the owner of that property? Of course not; and neither can the marina rely on an exemption clause to escape that duty of care to the consumer with whom it has a contract.

(See Denning LJ in White v John Warwick & Co. Ltd [1953] 1 WLR (CA) quoted in ‘Casebook on Contract Law’, 10th edition, Oxford University Press, pp 272-273)

But even supposing the marina did succeed in having an exemption clause that protected it (and I don’t accept that it could), that clause would have to be visible to any user of the marina before he entered. It would not be enough to have it in the small print of the booking form or posted on the office wall so that he could only see it after he had tied up. What if someone sailed into the marina, tied up, went to the office to book in, saw the exemption clause, decided he wouldn’t accept it, and sailed out again only to be showered by the angle-grinder debris. Are you saying that no duty of care would be owed to him?

That apart, it has been any held that any condition in a set of printed conditions which is particularly onerous or unusual must be fairly brought to the attention of the consumer before a contract is formed.
(See Dillon LJ in Interfoto Picture library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 (CA) quoted in ‘Casebook on Contract Law’, 10th edition, Oxford University Press, pp224-225)

Do you think anyone in his right mind would keep his boat in a marina believing that the owners cannot be held liable for their negligent acts (short of killing or injuring him)?

I could go on into consumer law, unfair contract terms etc. but my dinner is ready.

I, too, share your mistrust of Wikipedia. In the absence of access to a legal database, Westlaw or Lexis Nexis, for example, and it being Sunday, I have had to rely on the only textbook I have handy. If it is out of date, and the rights of consumers against suppliers has worsened (which does seem unlikely) since it was published, I may be wrong in some of what I have said.

 

[Marine Reflections]

The yard which will do the work (M&G, St Sampsons, Guernsey) has discussed the issue with Fleming's recommended GRP specialist. All cleaning will need to be done by hand. Rotary polishing is not an option. The contamination is speckled over the whole boat including the topsides, but mainly on the superstructure. The yard has tested some areas to remove the staining and after a few days there was no visible sign of the stains returning.

This will involve rubbing down with a fine cutting compound to remove the embedded particles of metal, after which a UV wax coating will be applied.

A long and manual job, but returning Play d'eau to her normal shiny self. Thankfully.

As work progresses, I'll post some pics - before and after.

To be clear, is the specialist suggesting that fine cutting compound applied by hand is going to be the method used to remove the ferrous particles, followed by a wax?

 

[jfm]

You make several points twisterowner so I have inserted replies in colour below

You seem to be saying that the marina (the supplier of a service) can, by means of an exemption clause in its contract with the marina user (a consumer), avoid the duty of care it would otherwise have. Yes, that's exactly what I'm saying. It's the law of the land.

I don’t agree with that. Evidently. But you're wrong.

Suppose the bits of steel had blown on the wind outside the marina and damaged some property not in any way the subject of the marina contract. For example: a boat berthed in another marina, a car, a house or any other property outside the marina perimeter. Would you say that the marina had no duty of care to the owner of that property? No I wouldn't, and have never, said that. The marina might well owe a duty of care to these people. Of course not; and neither can the marina rely on an exemption clause to escape that duty of care to the consumer with whom it has a contract. Hang on. Where do you get the part following the word "neither"? Why do you think that follows in logic or in law? It just doesn't. In relation to any given act of negligence (or other nuisance), it is entirely possible for one harmed party to have a claim for damages and for another not to by virtue of having contracted it away. You are just wrong here.

(See Denning LJ in White v John Warwick & Co. Ltd [1953] 1 WLR (CA) quoted in ‘Casebook on Contract Law’, 10th edition, Oxford University Press, pp 272-273) That famous cycle case deals with materially different contractual terms from what a modern contract will invariably contain. If you can't see that you're way out of your depth. I'll explain if you really want but as I stand accused of pseudo legalese I'm not going to spend much time on it. The particular contractual clause in that case failed (through imperfect drafting) to exclude tortious liability for negligence but Denning himself said in the same speech that you can in principle contract out of tortious liability if you write it correctly. That was 1953 and nowadays people draft disclaimer clauses generally without defect. Hence this case absolutely does nothing to support your position twisterowner.

But even supposing the marina did succeed in having an exemption clause that protected it (and I don’t accept that it could clearly you don't, and keep digging as long as you want. ), that clause would have to be visible to any user of the marina before he entered. It would not be enough to have it in the small print of the booking form or posted on the office wall so that he could only see it after he had tied up. What if someone sailed into the marina, tied up, went to the office to book in, saw the exemption clause, decided he wouldn’t accept it, and sailed out again only to be showered by the angle-grinder debris. Are you saying that no duty of care would be owed to him? No I'm not and I have never said that, for it would be incorrect. But what relevance is that wholly different set of facts? As explained, for any single cause, one guy might have a claim in negligence (your guy who sailed straight out) while another guy might have contracted his rights away (Piers, possibly). Piers has been in that marina several years on an annual contract.

That apart, it has been any held that any condition in a set of printed conditions which is particularly onerous or unusual must be fairly brought to the attention of the consumer before a contract is formed.
(See Dillon LJ in Interfoto Picture library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 (CA) quoted in ‘Casebook on Contract Law’, 10th edition, Oxford University Press, pp224-225). Sure. I never said anything to the contrary so please don't strawman me. YOUR position is that the marina owes a duty of care regardless of the contract; MY position is that it is cr@p to say there exists a DoC if you haven't read the contract, because it might have been disclaimed. Sure, if it is in pale grey tiny font on page 32 it won't have been validly disclaimed while if it is in decent font upfront it will be validly disclaimed, but what is your point? In your world liability can't be disclaimed at all so what relevance can the prominence of the disclaimer have? Are you accidentally agreeing with me?

Do you think anyone in his right mind would keep his boat in a marina believing that the owners cannot be held liable for their negligent acts (short of killing or injuring him)? Yes. I haven't read a UK marina berthing contract in a while but all I said before your "pseudo" post was that you must check the contract before concluding the marina owes a DoC. I would expect limitations on liability but if there are none then great. Limitations are far from unusual in written contracts: every time you fly, take a train ride, buy a car, order from Amazon, you will disclaim some rights for recompense if the supplier is negligent, and every time you hand in your coat a sign will validly say "coats left at owners risk".

I could go on into consumer law, unfair contract terms etc. but my dinner is ready. Thank god your dinner arrived to save me from reading more of your cr@p. Nothing I have written is rendered incorrect by consumer law or laws relating to unfair contract terms (in uk or Guernsey)

I, too, share your mistrust of Wikipedia. In the absence of access to a legal database, Westlaw or Lexis Nexis, for example, and it being Sunday, I have had to rely on the only textbook I have handy. If it is out of date, and the rights of consumers against suppliers has worsened (which does seem unlikely) since it was published, I may be wrong in some of what I have said. Wrong in just some of it? Ffs, your wrongness comes in industrial quantities. I don't distrust wiki but I despair at people who read wiki or a textbook on a narrow point then extrapolate and write cr@p on the internet. Worse still when they accuse people who don't merely read lexis nexis et al but play at a higher level of writing "pseudo legalese". Anyway, keep digging if you want. You will never sustain your contention that a marina's DofC to prevent iron filings landing on a boat can be known to exist regardless of what a related contract might say. The simple fact is that with clear words (and personal injury etc aside) parties in UK and Guernsey are free to limit or remove tortious or contractual liability by means of a term in a contract. Period. And Denning agreed.

 

[Malabarista]

You make several points twisterowner so I have inserted replies in colour below

wow!! well that bloody well told him didn't it.
not sure if I'm about to get both barrels as well (I'm not a law person) but I do H&S and I'm part way through a course which has told me that under HSWA 1974 the building (main) contractor owes a DoC to Piers under the 'neighbour' precedent. (Puts on helmet and runs away.....)

 

[Piers]

To be clear, is the specialist suggesting that fine cutting compound applied by hand is going to be the method used to remove the ferrous particles, followed by a wax?

Yes. They were strongly advised not to use oxalyic acid, or similar, to dissolve the filings. Does that answer the question?

 

[jrudge]

Speaking as a punter with no expert knowledge I would have thought that iron x to dissolve it would have resulted in less scratching. The polish will I suspect simply pull the filing off the gel coat and onto the polishing mop.

 

[[2068]]

wow!! well that bloody well told him didn't it.
not sure if I'm about to get both barrels as well (I'm not a law person) but I do H&S and I'm part way through a course which has told me that under HSWA 1974 the building (main) contractor owes a DoC to Piers under the 'neighbour' precedent. (Puts on helmet and runs away.....)

<Malabarista finds himself in a hole in the ground with a metal grating over the top.
Sympathetic forum members have sent packages of soup and bread.
Twisterowner is in the adjacent hole...>

 

[jfm]

wow!! well that bloody well told him didn't it.
not sure if I'm about to get both barrels as well (I'm not a law person) but I do H&S and I'm part way through a course which has told me that under HSWA 1974 the building (main) contractor owes a DoC to Piers under the 'neighbour' precedent. (Puts on helmet and runs away.....)

No "both barrels" from me so you'd better try twisterowner . See #2 of my post 38 above where I said the steelworks firm probably owes a DoC to Piers to prevent the iron filings landing on the boat. That duty won't be under HSWA of course because UK acts of parliament don't generally reach to Guernsey.

 

[Piers]

Speaking as a punter with no expert knowledge I would have thought that iron x to dissolve it would have resulted in less scratching. The polish will I suspect simply pull the filing off the gel coat and onto the polishing mop.

It's a tricky one to call. The overall advice was that Play d'eau's gel coat in places is too porous and a greater damage would be caused by using acid. Thankfully, the filings appear not to have been hot when landing, so haven't burned their way into the gel.

 

[sarabande]

Piers

As a technical question are the filings 'just' the steel from the girders, or are there other materials (galvanised coating, cutting discs, even aluminium ?) mixed in the steel debris.

and for Marine Reflections
If there is a mish-mash of metals bits, will it make a difference to the way that the gel coat has been attacked, and hence , need to be treated ?

 

[Piers]

No "both barrels" from me so you'd better try twisterowner . See #2 of my post 38 above where I said the steelworks firm probably owes a DoC to Piers to prevent the iron filings landing on the boat. That duty won't be under HSWA of course because UK acts of parliament don't generally reach to Guernsey.

'...don't generally reach to Guernsey.' You are so right. 65,000 inhabitants, self-rule, monopolies are applauded, etc, etc....

 

[Piers]

Piers

As a technical question are the filings 'just' the steel from the girders, or are there other materials (galvanised coating, cutting discs, even aluminium ?) mixed in the steel debris.

and for Marine Reflections
If there is a mish-mash of metals bits, will it make a difference to the way that the gel coat has been attacked, and hence , need to be treated ?

It appears the filings could have come from all the above. M&G cleaned a test area and thankfully, no staining has returned.

There's another boat in the marina which is COVERED. far, far worse than Play d'eau. It's an almost brand new Aquastar and was underneath where the filings were coming from. It appears these were red hot when landing and are embedded into the gel.

 

[Marine Reflections]

Piers

As a technical question are the filings 'just' the steel from the girders, or are there other materials (galvanised coating, cutting discs, even aluminium ?) mixed in the steel debris.

and for Marine Reflections
If there is a mish-mash of metals bits, will it make a difference to the way that the gel coat has been attacked, and hence, need to be treated ?

The methods remain the same.
If anything, these circumstances are just a massively over exaggerated example of why pre-soaking and pressure washing are essential before scrubbing, although here we are dealing with metal particles and not shells from bird poop.

The particles hot or cold, ferrous or non-ferrous will affect surfaces differently depending on the defence of that surface and of course how quickly the particles exchange free radicals with the surface. How it is handled will be of more consequence.

If a car roof hasn't been cleaned in a while and you pull into a roadside wash, you'd be in for some scratches if the operators started washing away with a sponge instead of pre-soaking / pressure washing the large grit away from the surface before washing away right?
In the same arena of common sense, these metal particles need careful removal before any motion, be it by hand or by polisher.

As per post #26
Tools such as freezer bags are an un-expected must have to see this through.

Iron X may not be known to the GRP guy, but it seems the chaps on here do make of that what you will.
The chemical make up of Iron X will not harm the gel coat, I doubt Play d'eau has an overly porous gel coat, but I would also steer away from Oxalic.
In the last few years didn't Julian and his guys completely overhaul the gel coat?

Iron X is acid-free and is 6-7 on the PH scale.

I would suggest again taking some photos of the surfaces affected in correctly lighted conditions to check more damage does not occur during the process.
Scratches are going to shorten the gel coat's life dramatically.

 

[Piers]

The methods remain the same.
If anything, these circumstances are just a massively over exaggerated example of why pre-soaking and pressure washing are essential before scrubbing, although here we are dealing with metal particles and not shells from bird poop.

The particles hot or cold, ferrous or non-ferrous will affect surfaces differently depending on the defence of that surface and of course how quickly the particles exchange free radicals with the surface. How it is handled will be of more consequence.

If a car roof hasn't been cleaned in a while and you pull into a roadside wash, you'd be in for some scratches if the operators started washing away with a sponge instead of pre-soaking / pressure washing the large grit away from the surface before washing away right?
In the same arena of common sense, these metal particles need careful removal before any motion, be it by hand or by polisher.

As per post #26
Tools such as freezer bags are an un-expected must have to see this through.

Iron X may not be known to the GRP guy, but it seems the chaps on here do make of that what you will.
The chemical make up of Iron X will not harm the gel coat, I doubt Play d'eau has an overly porous gel coat, but I would also steer away from Oxalic.
In the last few years didn't Julian and his guys completely overhaul the gel coat?

Iron X is acid-free and is 6-7 on the PH scale.

I would suggest again taking some photos of the surfaces affected in correctly lighted conditions to check more damage does not occur during the process.
Scratches are going to shorten the gel coat's life dramatically.

This is really interesting and I'll discuss this with the yard tomorrow. We take Play d'eau to the yard this afternoon. She will have a bath tomorrow before lifting and the main clean up work. Photos of all progress will follow.

Again, thank you for the help and concern.

 

[Poignard]

You make several points twisterowner so I have inserted replies in colour below

See post#48

1. The duty of care in tort law cannot be excluded by a clause in a contract.

Provided the three elements that establish a common law duty of care are all present then the duty must exist, for the simple reason there is no clause that can render what is foreseeable unforeseeable; or turn proximity into remoteness; or make the fair unfair, the reasonable unreasonable, or the just unjust.

2. What an exemption or exclusion clause does do is to get you to agree, voluntarily, that you will not hold the other party liable for his negligence. It is his defence against a potential claim, it does not mean the duty of care never existed or that negligence never occurred.