Iron filings all over Play d'eau

[Mr Googler]

FREE THE JFM 1 (Point)

 

[MrB]

Looks like a lot of us got warnings for not actually using bad language, the person that clicked "report" must be very sensitive. Bless

 

[Nigelpickin]

FWIW (that's an abbreviation not acronym btw Porto), I rather hope that they don't.

To be fair and imho the only vaguely offensive comment on the thread was made by Portifio, alluding that JFM would rather be right than he would the OP be protected by contract, so as to win an argument. It was a surprising thing to say. I’m not for one minute implying hat PF ‘clicked’ report but his indignation towards J’s candid response was surprising at best....

I chose to bite my tounge following a surprising comment that Portifino made about me earlier in the week, I rather wish that I hadn’t bothered now.

T’would be a massive own goal by the ybw overlords should John decide that the forum was more trouble than its worth, I doubt that there’s a member on here who hasn’t benefited from his advice over the years; even if he does sometimes have the bedside manner of an NHS consultant 4 weeks into a Junior Doctors strike.

 

[jfm]

even if he does sometimes have the bedside manner of an NHS consultant 4 weeks into a Junior Doctors strike.

ROTFL!

 

[longjohnsilver]

To be fair and imho the only vaguely offensive comment on the thread was made by Portifio, alluding that JFM would rather be right than he would the OP be protected by contract, so as to win an argument. It was a clumsy and dickish thing to say. I’m not for one minute implying hat PF ‘clicked’ report but his indignation towards J’s candid response was Year 7 at best....

I chose to bite my tounge following a personal comment that Portifino made about me earlier in the week, I rather wish that I hadn’t bothered now.

T’would be a massive own goal by the ybw overlords should John decide that the forum was more trouble than its worth, I doubt that there’s a member on here who hasn’t benefited from his advice over the years; even if he does sometimes have the bedside manner of an NHS consultant 4 weeks into a Junior Doctors strike.

Totally agree, this is all very silly and a potential huge own goal by the mods. It would be quite ironic if they were to ban a regular contributor to their own magazine!

 

[MapisM]

he does sometimes have the bedside manner of an NHS consultant

Give me the worst bedside manners coupled with the best advise money can buy - all FoC - any day of the week.
Not sure if that's the case with NHS consultants, but you see what I mean.

I wouldn't be worried, though.
Those of us who remember what followed a totally silly temporary ban of Deleted User can easily imagine the outcome of a permanent jfm ban.
Such action would be well beyond a joke regardless of the reasons - which btw in this case are laughable to say the least.

 

[Greg2]

Some serious losing of the plot going on here IMHO. We joke about the snowflake generation but seeing it become a bit real is a little disturbing. Sure, JFM is sometimes a little to the point but there is nothing wrong with that in the context we have seen here.

 

[Nigelpickin]

Give me the worst bedside manners coupled with the best advise money can buy - all FoC - any day of the week.
Not sure if that's the case with NHS consultants, but you see what I mean.

I wouldn't be worried, though.
Those of us who remember what followed a totally silly temporary ban of Deleted User can easily imagine the outcome of a permanent jfm ban.
Such action would be well beyond a joke regardless of the reasons - which btw in this case are laughable to say the least.

For sure but context is very important here Mapism, Mike, iirc went postal in the Lounge forum
- forgive me if I’ve not remembered that accurately...

John was providing clinical, valuable advice to another longstanding and well thought of member when someone jumped in and made an unfortunate, stupid comment that was difficult to take as anything other than a personal jibe, albeit a mild one.
Those who live above the strata of monitor should be made aware when their Prefects have read the room incorrectly - that’s my reason for, (as it currently stands), post 102

It’s important to show support in these instances, as we all did when Deleted User hit the sin bin.

Hopefully it’s a two way street and some common sense can run downhill toward them, that they might take a second to consider the context before dishing out their next yellow card.

 

[Portofino]

---Quote---
*Clause 4 - Users Obligations*
4.4 Do not post defamatory or other insulting or inappropriate content...
---End Quote---

Generally speaking, content (outside The Lounge, or any thread title) that wouldn't ordinarily appear in the printed magazines represented on the forum will be removed once brought to our attention. Please bear in mind that the forum is open to a broad membership and such content is not something that is generally welcomed or encouraged


In any event, derivatives or other forms of the two words that remain offensive to many in public (in full, abbreviated, acronyms, obfuscated, colloquialisms, image, etc.) are not welcome anywhere on the YBW forum.


In this instance repeating (rather than Reporting);

---Quote---
DELETED
---End Quote---

Please read and observe the additional posting guidelines that can be found http://www.ybw.com/forums/showthread.php?487721-A-Note-RE-Unacceptable-Langauge-on-the-Forum.


Your future cooperation in this would be appreciated.



NB
Further breaches of the T&C's/sundry guidelines may result in your account being penalised.


-------

Original Post:
http://www.ybw.com/forums/showthread.php?p=6378484#post6378484

---Quote---
---Quote (Originally by jfm)---
To say that I "hope" for that outcome is pretty damned outrageous Porto. I invite you to retract it, otherwise you can DELETED I most certainly do not hope that Piers gets beaten up by tough clauses in the contract.
---End Quote---
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 acronyms like ( DELETED )

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.
---End Quote---


Advisory Notices serve as a reminder to you of the forum's rules, which you are expected to understand and follow.

All the best,
Yachting and Boating World Forums
***************



All the best,
Yachting and Boating World Forums

DO NOT REPLY TO THIS EMAIL!
***************************

Dear Portofino,

You have received a new private message at Yachting and Boating World Forums from Forum Admin Team, entitled "You have received an Advisory Notice at Yachting and Boating World Forums".

This is the message that was sent:
***************
Dear Portofino,

You have received an Advisory Notice at Yachting and Boating World Forums.

Reason:
-------
Contravening Forum Terms & Conditions of Use (1)

Sorry, but having been brought to our attention for review, your recent post has been removed as it had content inappropriate for the forum and, as such, in breach of the forum's current Terms & Conditions of Use - http://www.ybw.com/forums/faq.php?faq=terms#faq_terms_use;



---Quote---
*Clause 4 - Users Obligations*
4.4 Do not post defamatory or other insulting or inappropriate content...
---End Quote---

Generally speaking, content (outside The Lounge, or any thread title) that wouldn't ordinarily appear in the printed magazines represented on the forum will be removed once brought to our attention. Please bear in mind that the forum is open to a broad membership and such content is not something that is generally welcomed or encouraged


In any event, derivatives or other forms of the two words that remain offensive to many in public (in full, abbreviated, acronyms, obfuscated, colloquialisms, image, etc.) are not welcome anywhere on the YBW forum.


In this instance repeating (rather than Reporting);

---

————————————//———————————-//————————————-//——————————-//—————

Above is what I received from the mods I have replaced the acronym/ abbreviation with “DELETED “

I accept the warning but draw attention to my earlier post that I had not heard of those three letters used in that way before so reposted in ignorance knowing not either exactly what they suppose to mean an acronym or abbreviation, not entirely clear then .

Dangers of quoting other folks posts I guess :encouragement:


And no I have not reported anything or initialised any communication with the mods or any PM,s with anybody on here .
Thx Nigel for adding a proviso with words to that effect ^^^ in one of your posts .

How ever having found out the true meaning as intended and reviewed what posted to promp JFM to use that type of language

I,am sincerely sorry that a post of mine ended up with JFM feeling the need to resort to that kind of language. It was never and is never my intention to upset people on here .I try and be factual adding sometimes a little humour and irony to make sense of the mad world we live in .
If you actually look back at the post that seemingly JFM became angry about there is a after the “ JFM hopes “ like this which I thought was a kinda lightweight, joke , not taken seriously thingy ?

For that please accept my apologise for as said ^^^^ the clumsy English
That’s why I have reposted my response that JFM requested ( in his now deleted post ) —- for clarity, which I thought covered the matter .

@ NigelPicken — et tu Bruti

Hopefully let’s put all this mod stuff behind us and move on with JFM ,s continual participation .

Moving on back to the subject-Thx Piers for posting a copy of the T+C ,s

I note clause 5.1

Sorry I can,t seem to copy / paste that bit —from the link Piers has kindly provided.

“ otherwise beyond that of a duty to exercise reasonable skill and care “

— but it seems to me they seem to accept a DoC , just worded in another way .

And along with there right to move boats , it could be argued a “ reasonable “person should have moved the boats ( all 10 now ) in my view they did not - so they seem liable a view I did not doubt from the offset broadly agreeing with Twisterowner position .
Plenty of expert witness can probably say hot iron fillings are damaging to gelcoat
Some sort of guard / shield should have been placed “ reasonable skill and care “ ? etc so we are back to negligence.

Happy to be the standard bearer for AN Other boat owner here ——- and if necessary not afraid of “tin hat time “

Never have been !

 

[MapisM]

I note clause 5.1
...
“ otherwise beyond that of a duty to exercise reasonable skill and care “
but it seems to me they seem to accept a DoC , just worded in another way.

I only contributed to the debate so far for its folkloristic side, rather than for the crux of the matter, because my experience on legal matters doesn't stretch to UK laws - let alone C.I. peculiarities.

That said, may I ask you what conclusions you would draw after reading not only 5.1, but also 5.2?
I gave up trying to understand what those two clauses as a whole exactly mean in practice, after reading them for the fifth time.
Otoh, I suspect/fear that considering only the sentence you quoted is a bit of a cherry picking exercise...

 

[Portofino]

That said, may I ask you what conclusions you would draw after reading not only 5.1, but also 5.2?
I gave up trying to understand what those two clauses as a whole exactly mean in practice, after reading them for the fifth time.
Otoh, I suspect/fear that considering only the sentence you quoted is a bit of a cherry picking exercise...

Took 5.2 to protect the Co from a claim of say lost income / revenue from the berthholder s .eg a lock gate malfunction ( if its got one ) or say a power cut leading to the charger going off trickle ,resulting in a flat bat so can,t start the engines - so lost departure leading to lost revenue if that sailing would have resulted in a revenue stream ?
Somthing like that .

You only need one cherry amongst the lemons

Nether the less clause 5.1 imho is the leverage in Piers favour if it can be proven they have NOT “ excerised reasonable skill and care “

Hopefully JFM will be along soon :encouragement:

 

[MapisM]

You only need one cherry amongst the lemons

LOL, I wish it were that simple, when I used to deal with contracts made of hundreds (literally!) of pages.

Besides, if I may play devil's advocate on cherry picking, are you sure that the following only applies to loss of revenue...?
"in no circumstances shall the Company be liable [...] for the contractual or economic loss, whether direct or indirect of any nature whatsoever"

 

[Portofino]

LOL, I wish it were that simple, when I used to deal with contracts made of hundreds (literally!) of pages.

Besides, if I may play devil's advocate on cherry picking, are you sure that the following only applies to loss of revenue...?
"in no circumstances shall the Company be liable [...] for the contractual or economic loss, whether direct or indirect of any nature whatsoever"

Show me where “ only “ is in any recent replies
Eg means or was meant to mean an example, there can be other examples .

Main point is I think 5.1 and 5.2 sit well together and I can not see a contradiction. That harms Piers or beats him up .

 

[MapisM]

Main point is I think 5.1 and 5.2 sit well together and I can not see a contradiction.

Well, I might well be alone in reading 5.2 as a twisted attempt to deny what is generically recognised in 5.1, then.
In fact, I was tempted to award the whole chapter 5 as one of the most "Point of Sale" (just to avoid using a potentially misleading abbreviation... ) bits of contracts I ever came across.
Then again, as I said before, I'm more than happy (and curious!) to hear from someone with a more specific competence.

 

[Portofino]

To be fair and imho the only vaguely offensive comment on the thread was made by Portifio, alluding that JFM would rather be right than he would the OP be protected by contract, so as to win an argument. It was a clumsy and d****** thing to say. I’m not for one minute implying hat PF ‘clicked’ report but his indignation towards J’s candid response was Y*** 7 at best....

I chose to bite my tounge following a personal comment that Portifino made about me earlier in the week, I rather wish that I hadn’t bothered now.

T’would be a massive own goal by the ybw overlords should John decide that the forum was more trouble than its worth, I doubt that there’s a member on here who hasn’t benefited from his advice over the years; even if he does sometimes have the bedside manner of an NHS consultant 4 weeks into a Junior Doctors strike.

Nigel
Please can I ask you to reconcile your attack that seems aimed at me above ,with the following?

*Clause 4 - Users Obligations*
4.4 Do not post defamatory or other insulting or inappropriate content..

PS I have edited Nigel’s post with *** for the bits that in my opinion qualify in clause 4
So,s not to fall into re the quoting trap in the mods eyes

 

[MapisM]

Nigel
Please can I asked you to reconcile your attack that seems aimed at me above with the following?

I struggle to see any reconciliation needs, strictly from a logical standpoint.
You posted something that could be read as NP read it (and as jfm did, and myself, and I bet also others).
You afterwards clarified that you didn't really mean it - fair play to you for that.
Now, in his post #102, NP is just summarizing/rewinding what happened, as it was read in that moment, before your clarification.
And if read in the "original" way, your comment indeed came across exactly as NP is saying.
But, so what? The way your original comment came across was wrong also by your own admission.

Let's move on, I say.
The folkloristic side of this thread has been entertaining for a while, but is beginning to be past its due date... :ambivalence:

 

[Nigelpickin]

Nigel
Please can I ask you to reconcile your attack that seems aimed at me above ,with the following?

*Clause 4 - Users Obligations*
4.4 Do not post defamatory or other insulting or inappropriate content..

PS I have edited Nigel’s post with *** for the bits that in my opinion qualify in clause 4
So,s not to fall into re the quoting trap in the mods eyes

I’ve altered my original post Porto, I think it reads a little more kindly now.
Of course Mapism is correct, we should move away from the side show and see if the thread can get back on topic, apologies for my part in the distraction.

 

[petem]

Say if I'm Beaucette marina and I've engaged a contractor that are experienced in this kind of work (my assumption) and have asked them to ensure that no damage is inflicted on the boats, have I exercised "reasonable skill and care"?

 

[sarabande]

I don't see that there is any obligation on your part to manage or place conditions on the way the contractor works to prevent damage to other boats. You might, however, be expected to provide dust mats so that contractors can clean boots before stepping on board your own boat. I would expect a decent, competent, contractor to have done the risk assessments, and to have identified the mitigatory procedures needed, and to include them in the price to you.

 

[jfm]

- so they seem liable a view I did not doubt from the offset broadly agreeing with Twisterowner position

Wow that is trite Porto. Beating your chest "I was right" when prior to reading the contract you couldn't possibly know whether the marina had liability. And twisterowner's position is that the marina has liability regardless of any "cock off" clauses whereas you have concluded you agree with him having reviewed the clauses. Unbelievable. Like a fork handles/plugs sketch.

Back to the main event. The berthing contract is quite something Piers. You'd have to look hard to find so many mix ups, bad use of English, illogical sentences, clumsy mistakes, etc in such a short document. It really is 2/10 territory.

Clause 5 was where the draftsman thought to limit the marina company's liability. 5.1 is pretty inept but we need not worry about it and it reconfirms the basic tortious position that would apply if there were no limitations on liability.

5.2 is the only place where the marina can try for a limitation. This is quite the worst bit of legal drafting I've seen in a very long time. The sentence is so jumbled you can only guess what the draftsman might have meant (like some posts on here, ). For sure, the actual English doesn't contain a clear exclusion of liability in the iron filings situation (if at all).

The particularly fatal bit of drafting is the "the" shortly before "economic loss". For marina to avoid liability the only straw they can clutch is the economic loss part of 5.2, as Mapism already pointed to, but the "the" means it has to be a particular loss not any loss, and as they do not specify any particular loss the clause fails. Further, they cannot say the "the" is unintended/accidental because they use it on the same line in relation to "loss of profits".

Remember these three rules on exclusions and contracts generally:

1. An exclusion clause has to be very clear. If there is ambiguity it fails. It is far from being the only legal precedent on the point but In the very case twisterowner cites above, Denning ( then "only" an appeal court judge) said: In this type of case, two principles are well settled. The first is that, if a person desires to exempt himself from a liability which the common law imposes on him, he can only do so by a contract freely and deliberately entered into by the injured party in words that are clear beyond the possibility of misunderstanding."

2. There is a legal rule called contra proferentum which says that ambiguity may not be resolved in favour of the person who drafted the ambiguous clause ie the marina co. If there is ambiguity you interpret against the draftsman.

3. There's a general rule of contract law that says if a clause is defective you strike the whole clause/sentence and not just the element of a sentence that is defective. This rule can be overridden by a so called "blue pencil test" clause, but there isn't one in this contract.

Clause 5.2 fails all three. So I am very confident that the clause is unenforceable and the court would agree. My view is therefore that there are no relevant limits in this contract on marina's liability, so they owe the normal tortious duty of care, reinforced by 5.1, and therefore they are liable for money equal to cost of repairs to play d'eau and all foreseeable incidentals. They would also be liable for diminution in value but I don't yet see that there is any in this case.

I would press on with repairs, pay the bills, ask both parties for reimbursement and then if they don't pay, issue. It's a simple case. Remember, as said way above, you have a claim against both the marina co and the steelworks co. Good luck.