Iron filings all over Play d'eau

Twisterowner said:
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 that 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.
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Wow, you are quite something. Flip to the last 15 seconds of this and see if the guy on the black outfit looks similar https://www.youtube.com/watch?v=AAW6D21ICdg

So, to recap:
1. You said marina owes duty of care to Piers.
2. I said you can't say that without checking the contract to see whether the marina is exempted from liability to Piers, which perfectly possible legally and pretty common.
3. You dug your heels in saying duties of care can't be overridden by contracts, period. That is utterly incorrect.
4. Now, rather than admit a defeat that is as obvious as Black Knight's, you make the astonishingly anally retentive point that the duty of care isn't strictly speaking eliminated; it still technically exists but in the injured party has contracted to forgo his rights to take action for it.

Good gracious, can't you just man up and say "oh yea I was wrong - sorry" and have the decency to withdraw your "pseudo" comment?

You're actually still wrong in #2 in your post but to explain why would be dancing on a pinhead of the legal concept of offsetting of rights.

You're behaving like a spoilt child. I refer you again to yourself in the black suit in the last 15 seconds of that video and I hope you can get your arms and legs stitched back on before your next "pseudo" post on here.
 
jfm said:
Wow, you are quite something. Flip to the last 15 seconds of this and see if the guy on the black outfit looks similar https://www.youtube.com/watch?v=AAW6D21ICdg

So, to recap:
1. You said marina owes duty of care to Piers.
2. I said you can't say that without checking the contract to see whether the marina is exempted from liability to Piers, which perfectly possible legally and pretty common.
3. You dug your heels in saying duties of care can't be overridden by contracts, period. That is utterly incorrect.
4. Now, rather than admit a defeat that is as obvious as Black Knight's, you make the astonishingly anally retentive point that the duty of care isn't strictly speaking eliminated; it still technically exists but in the injured party has contracted to forgo his rights to take action for it.

Good gracious, can't you just man up and say "oh yea I was wrong - sorry" and have the decency to withdraw your "pseudo" comment?

You're actually still wrong in #2 in your post but to explain why would be dancing on a pinhead of the legal concept of offsetting of rights.

You're behaving like a spoilt child. I refer you again to yourself in the black suit in the last 15 seconds of that video and I hope you can get your arms and legs stitched back on before your next "pseudo" post on here.
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You have responded to my reasoned arguments by blustering, bullying and personal abuse.

You have failed to disprove anything I have said.

You have made a fool of yourself.
 
Wow! I think I'm going to leave it there. At least black knight had the good humour in the last 10 seconds to say "shall we call it a draw?" :D
 
This is almost as good as watching milling. My money is on jfm, not least since he does have a scooby what he's talking about without resort to google (other search engines are available).
 
If the marina principle has agreed to fund the making good any perceived damage to the satisfaction of both injured parties ( Piers and the Aquastar ) without asking them to enter into a agreement, to absolve him of any blame , then surly he had admitted liability.
Therefore if the marina principle has relalised the liability-falls on him - does that mean he acknowledges he qualifies under the overarching DoC -

In other words he realises if it went “all legal “he would loose - get the lawyers costs and still have to pay for the repairs .

Otherwise the marina principle could say - according to clause XYZ ( the clause JFM hopes :) is in and stands watertight to protect the operator from this particular liability? ) - of OUR berthholders agreement, i,am afraid you see I,am exempt for any damage liability and you will fail if you seek damages from me , because I owe you zero duty of care “

“How ever I,am attempting to put things right as a matter of good will because - I could invoke clause XYZ “

Of course we don,t know what’s in the marina / berthholders contract or the reason the marina principle had seemingly agreed to fund the repairs .

But he has agreed to fund repairs without entering an agreement with the injured parties NOT admitting liability.


But re reading ALL the above Twisterowner s posts make the most logical sense thus far for me .

The over arching DoC would wipe out any cock off liability XYZ clause in the injured parties agreement.
 
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Hi All,

Well, the marina's FD has taken control stating the marina is not accepting liability for their contractors workmanship and is placing matters into the hands of the marina's insurers. Just in case this has to go legal, is this the point at which we need to suspend dialogue until resolution is reached?

Meanwhile, works on Play d'eau have started to prevent further deterioration from rust seepage into the gel coat.
 
A
Piers said:
Hi All,

Well, the marina's FD has taken control stating the marina is not accepting liability for their contractors workmanship and is placing matters into the hands of the marina's insurers. Just in case this has to go legal, is this the point at which we need to suspend dialogue until resolution is reached?

Meanwhile, works on Play d'eau have started to prevent further deterioration from rust seepage into the gel coat.
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Yup wondered when “ not accepting liability “ would crop up .

Good luck with it all .
 
jfm said:
Wow! I think I'm going to leave it there. At least black knight had the good humour in the last 10 seconds to say "shall we call it a draw?" :D
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Damn! I've just ordered a pallet of popcorn. I wonder if they'll do it on sale or return?

On a serious note, I hope it gets sorted to your satisfaction, Piers.
 
Portofino said:
( the clause JFM hopes :) is in and stands watertight to protect the operator from this particular liability? )
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To say that I "hope" for that outcome is pretty damned outrageous Porto. I invite you to retract it, otherwise you can cease and desist. I most certainly do not hope that Piers gets beaten up by tough clauses in the contract.
 
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Piers said:
Hi All,

Well, the marina's FD has taken control stating the marina is not accepting liability for their contractors workmanship and is placing matters into the hands of the marina's insurers. Just in case this has to go legal, is this the point at which we need to suspend dialogue until resolution is reached?

Meanwhile, works on Play d'eau have started to prevent further deterioration from rust seepage into the gel coat.
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Piers, don't let their insurers control this qua insurer. You have no nexus with their insurers. If the insurers and the marina confirm that the insurers are the marina's agent with full power to negotiate the position, that is fine, but get that agency relationship admitted and confirmed by them first before corresponding about the damage.
 
jfm said:
To say that I "hope" for that outcome is pretty damned outrageous Porto. I invite you to retract it. I most certainly do not hope that Piers gets beaten up by tough clauses in the contract.
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Arh see I what you mean ,the way you have literally interpreted that sentence.
No
No obviously did not mean that you wished any bad fortune on Piers - of course not .Its pretty clear you are helping him :encouragement:

Just intrigued by the two opposing sides to the DoC argument and the ability if properly administered the marina principle can write a clause cocking off his liability to DoC .

Of course this is hypothetical Q / debate on the forum because we have not seen a factual copy of the agreement .

Twisterowner seems to think ( if understand what he has said ? ) the DoC stands in this particular case .

Does not matter if there is a DoC of cock off clause in or not — As

The marina principle (s) have started going through a due process to make good in a way Piers is not out of pocket that’s the main thing .
Let’s hope it ends with a satisfactory conclusion :encouragement:

But separately it would be nice for another conclusion to the opposing views of yourself and Twisterowner on the DoC point
If I may add without anybody resorting to ...

Nice logical or any type of explanation will do perhaps mindful that most folks agree that every day is a school day on here and are willing to learn even after clumsy participation.
 
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Porto if there is no contract then injured people have rights against the injurer. E.g. If I crash into your car and it's my fault. BUT if there is a contract then the parties can generally contract away some or all of these rights and that happens very commonly. It's not one sided- both sides have to agree. I haven't read the contract here which is why all I have said is that twisterowner cannot conclude there exists a DoC without reading it. That's it- end of my position.

Not wishing to be awkward but if anyone says a DoC in survives a clause excluding it in the berthing contract then they are wrong no matter how many "another conclusions" you might get from your request. It's a night and day topic. The modern commercial world wouldn't work if it were any other way. Anyway, done to death.

It's good that you have retracted your bit saying I want piers caught by an exclusion clause in his contract. As for "resorting" - perleeese. Get yourself a tin hat before writing such stuff. I'm indifferent about the mods view on my post.
 
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