jfm
Well-Known Member
No. that's not enough. And it obviously forms no defence for the steelworks firm itself.
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Iron filings all over Play d'eau
- Thread starter Piers
- Start date
dom
Well-Known Member
Apropos nothing iron-filey: it's interesting to see -- notwithstanding the excess CO2 you must breath 
-- how often you mobo-lot manage to unpick tricky boaty problems.
Not that us yoties are concerned with mega-sized, x-zillion hp engines; I'm more thinking insurance, contract law, tax, colregs, negligence claims, finance ...Oh and some cool Med restaurants!
It's a delicate chemistry, and somewhere in that mix jfm often seems able to blow away the smoke, see past and mirrors and produce what many view as interesting, definitive and commercially useful answers. That mobo/raggy Itchenor dual is a good example, but more practically, I asked for a dangerous insurance clause to be changed following his advice ...as did many others.
So well done and tks you guys.
Edit: apols to jfm in advance if that 'commercially useful' comment is deemed insulting to a high-flying legal eagle
-- how often you mobo-lot manage to unpick tricky boaty problems. Not that us yoties are concerned with mega-sized, x-zillion hp engines; I'm more thinking insurance, contract law, tax, colregs, negligence claims, finance ...Oh and some cool Med restaurants!
It's a delicate chemistry, and somewhere in that mix jfm often seems able to blow away the smoke, see past and mirrors and produce what many view as interesting, definitive and commercially useful answers. That mobo/raggy Itchenor dual is a good example, but more practically, I asked for a dangerous insurance clause to be changed following his advice ...as did many others.
So well done and tks you guys.
Edit: apols to jfm in advance if that 'commercially useful' comment is deemed insulting to a high-flying legal eagle
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jfm
Well-Known Member
Thanks to you and others Dom for the kind words. I had no idea you scuttlebut guys looked in here so much 
. And no insult/offence taken- "commercially useful" is what we are aiming for.
. And no insult/offence taken- "commercially useful" is what we are aiming for.
CLB
Well-Known Member
Just when we were nicely back on topic l've just received another PM from an unnamed mod saying they have received a complaint about another of my posts above. I'm taking time out to help Piers and steer him around the wiki-google-law posts above, possibly quite a lot more than the unknown complainant and mod are, and yet the mods keep deleting my posts.
The mod PM is pure comedy: "This infraction is worth 2 point(s) and may result in restricted access until it expires. Serious infractions will never expire." Honestly, no kidding, that's what the PM says. "May" not "will"? So what's the point of the points? And is 2 a lot? Anyone got 100? Vas you're always saying "abbreviated naughty word" in your posts so you must have a shed load of points
I find it weary that the complainant and mod don't man up and reveal their identities so we can discuss properly.
Maybe someone from Beaucette Marina is following this thread and are trying to shut you down
Bold in quote above are my changes to avoid being infracted by proxy
Poignard
Well-Known Member
I totally agree that complainants should be named, if for no other reason than that it would absolve from blame those who might otherwise be suspected of having made a complaint when they have not.
Having myself had numerous infractions, posts deleted and a couple of spells of being banned, usually as a result of saying something that might hurt the feelings of those racist bigots whom I particularly despise, I know how irritating anonymous complaints can be.
I would not mind so much if the complainant were himself to post something along the lines of: “Twisterowner, you have so deeply wounded my delicate and susceptible feelings by your unkind and hurtful remarks that you have left me with no alternative but to complain to the Moderators.”
Having myself had numerous infractions, posts deleted and a couple of spells of being banned, usually as a result of saying something that might hurt the feelings of those racist bigots whom I particularly despise, I know how irritating anonymous complaints can be.
I would not mind so much if the complainant were himself to post something along the lines of: “Twisterowner, you have so deeply wounded my delicate and susceptible feelings by your unkind and hurtful remarks that you have left me with no alternative but to complain to the Moderators.”
dom
Well-Known Member
I once saw the aged Chairman of a major US bank strap a Fitbit to the CEO's wrist and dispatch him for a walk to include at least 1,000 steps. Upon his return we received a royal bollocking for allowing personal disputes to endanger the business. An officially minuted meeting was then opened before any of us could utter a peep!
I do hope the mods here have a similarly wise Chairman.
I do hope the mods here have a similarly wise Chairman.
Nigelpickin
Well-Known Member
jfm
Well-Known Member
On the main event, Clause 6.1.6 of the berthing contract needs a mention and I completely forgot when typing #117 (on current numbering). this morning. This doesn't change the answer.
1. As ever any limitation only goes as far as the words very clearly say. See #117
2. The company has its own duty of care to Piers to prevent iron filings hitting play d'eau. The company's duty was to act reasonably to try to eliminate the threat to play d'eau, and its failure in that wasn't caused by the actions of the steelworks firm so much as by its own omissions. So 6.1.6 doesn't bite imho
3. Any clause that doesn't make clear it is disclaiming a tortious liability as distinct from a contractual one can be taken to be doing the latter only. Clause 6.1 is such a clause and that view is reinforced by 5.1 in this case. The authority here is the second of the two principles Denning referred to (see #117 above as currently numbered) and Denning can say it much better than me: "The second [principle] is that, if there are two possible heads of liability on the defendant, one for negligence, and the other a strict liability, an exemption clause will be construed, so far as possible, as exempting the defendant only from his strict liability and not as relieving him from his liability for negligence". In this context "Strict" basically means contractual. So the point here is that 6.1.6 fails to include language saying it defeats a tortious liability, and so it doesn't bite in this iron filings case imho
4. Additionally, 6.1 does not limit in any way Piers's claim against the steelworks firm.
1. As ever any limitation only goes as far as the words very clearly say. See #117
2. The company has its own duty of care to Piers to prevent iron filings hitting play d'eau. The company's duty was to act reasonably to try to eliminate the threat to play d'eau, and its failure in that wasn't caused by the actions of the steelworks firm so much as by its own omissions. So 6.1.6 doesn't bite imho
3. Any clause that doesn't make clear it is disclaiming a tortious liability as distinct from a contractual one can be taken to be doing the latter only. Clause 6.1 is such a clause and that view is reinforced by 5.1 in this case. The authority here is the second of the two principles Denning referred to (see #117 above as currently numbered) and Denning can say it much better than me: "The second [principle] is that, if there are two possible heads of liability on the defendant, one for negligence, and the other a strict liability, an exemption clause will be construed, so far as possible, as exempting the defendant only from his strict liability and not as relieving him from his liability for negligence". In this context "Strict" basically means contractual. So the point here is that 6.1.6 fails to include language saying it defeats a tortious liability, and so it doesn't bite in this iron filings case imho
4. Additionally, 6.1 does not limit in any way Piers's claim against the steelworks firm.
jfm
Well-Known Member
... infracted by proxy
jfm
Well-Known Member
Very well said t/owner. :encouragement:
benjenbav
Well-Known Member
Not qualified in Guernsey law and not a contract lawyer but, with those caveats, I agree with jfm's view of this contract as expressed above.
Clause 5 seems (tortured English apart) to be a rather decent attempt not to exclude liability other than perhaps for economic loss which is itself a complex subject and not to be understood as, 'you threw a brick through my window. It cost me £100 to fix the glass: I have suffered economic loss.'
Sub-clauses 6.1.1 - 6.1.8 need to be read in the context of 6.1, i.e. as qualifications relating to where the company has a positive duty to do something.
I also agree that Piers should consider pursuing both the marina and the contractor for recourse. Not enough of the background facts are known to be able to do otherwise. For example, the marina may have required and relied on a method statement which, if applied properly, would have avoided the issue.
Finally, I can't agree with the decision to delete various of the posts on this thread. I read them before they were deleted and imho the moderators have created the impression for future readers that a number of people whom I respect have made inappropriate comments, which I think is misleading. Not my trainset, but there it is.
Clause 5 seems (tortured English apart) to be a rather decent attempt not to exclude liability other than perhaps for economic loss which is itself a complex subject and not to be understood as, 'you threw a brick through my window. It cost me £100 to fix the glass: I have suffered economic loss.'
Sub-clauses 6.1.1 - 6.1.8 need to be read in the context of 6.1, i.e. as qualifications relating to where the company has a positive duty to do something.
I also agree that Piers should consider pursuing both the marina and the contractor for recourse. Not enough of the background facts are known to be able to do otherwise. For example, the marina may have required and relied on a method statement which, if applied properly, would have avoided the issue.
Finally, I can't agree with the decision to delete various of the posts on this thread. I read them before they were deleted and imho the moderators have created the impression for future readers that a number of people whom I respect have made inappropriate comments, which I think is misleading. Not my trainset, but there it is.
john_morris_uk
Well-Known Member
I'm a bit late to this party, but I've watched what's been going on and I've just chatted to jfm about the deletions. The problem the mods and admin have is that we aren't supposed to edit other people's posts. (They become 'our' posts if we do and that's potentially a legal minefield.) The rules currently say no F's or C's and no acronyms of the words. If, in the heat of the moment, you put one in, then the whole post goes....
mods can see deleted things so I've offered to PM jfm his deleted posts and he can then choose to put them back on the forum if he wishes. I can't think of anything better to do than that.
If people don't like the rules, then write to Stef and ask her to change the editorial policy. (Just please don't shoot my fellow mods and admin who have to apply the rules...)
PS The deletions had nothing to do with posts hurting peoples feelings; but that's getting into the area of discussing moderation and we don't do that.
jimmy_the_builder
Well-Known Member
John, thanks for the explanation. For *this specific occasion only* would it not be possible to undelete the deleted posts so that the original posting order can be restored for future readers of this very informative thread, and then allow the authors of the (really not very) offensive content to edit their individual posts?
john_morris_uk
Well-Known Member
I'm not sure if edit timings have expired? I can try undeleting (and risk the wrath of admin and editor...!) and allow a few hours (I suggest until 1200 tomorrow?) for the people concerned to delete the not very offensive content.
And on the bright side, if I get sacked as a moderator, I get some of my life back.
jimmy_the_builder
Well-Known Member
If you want to try one first - then undelete my deleted content, and I'll see if I can edit it straight away.
longjohnsilver
Well-Known Member
Well done John, common sense hopefully prevails:encouragement:
benjenbav
Well-Known Member
We lawyers are quite good at causing intentional offence by the use of deliberately restrained language, as I might say with the 'greatest possible respect'.** I wonder if - in this case - we could all just agree that the expression actually used was a means of saying 'cease and desist' (which really is quite abrasive) without intending any offence?
**Sometimes we can even do it without emojis...
john_morris_uk
Well-Known Member
We lawyers are quite good at causing intentional offence by the use of deliberately restrained language, as I might say with the 'greatest possible respect'.** I wonder if - in this case - we could all just agree that the expression actually used was a means of saying 'cease and desist' (which really is quite abrasive) without intending any offence?
**Sometimes we can even do it without emojis...
My profession can do that as well.
"He means well..." said in the right tone and in the right place etc
jfm
Well-Known Member
Thanks John for the common sense. Jimmy is right - the posting order matters in a thread like this. If you reinstate I will edit to a standard that even Queen Victoria would approve of. Only catch is I can't do it till about 11pm tonight. And as you say, it would be a bonus if you got fired
john_morris_uk
Well-Known Member
Thanks John for the common sense. Jimmy is right - the posting order matters in a thread like this. If you reinstate I will edit to a standard that even Queen Victoria would approve of. Only catch is I can't do it till about 11pm tonight. And as you say, it would be a bonus if you got fired
Its undeleted from this end so hopefully undeleted for other people's views. Can you please sort out No 124 as well? I'll leave it with you and go back to important things like discussions with my Director of Music.