Owner wins claim against UK builder

[jfm]

Either it was stated in the contract which seems unlikely or Pearl volunteered the information in another way which as I say, was stupid. Yes then, having made that error, ...

Mike I don't think you're correct there: I doubt it is Pearl's/their lawyers stupidity on this particular point. The judgement somewhat suggests it was in the contract but even if it wasn't then it was likely discoverable by the claimant in the pre trial disclosure proceedings

in this, of course, they failed

Yes, and that was their screw up. When you read the ratio on how this point was decided by the judge you see that Pearl shouldn't have lost and were let down by their team - all imho

 

[volvopaul]

We've just bought a used 60 last week, not Temptation II, (great timing for this little gem to come out !!), and there are some 2006/2007 brochures left on the boat, the back page shows a team of people outside a factory in Turkey so something was being done there back in those days.

It's a real shame to see what has transpired about this case this week. I really hope Pearl do OK once this is over and settled down, we've loved the 60 since we first saw one, and we thought the 75 was fab when we saw the launch boat at SBS a while back.

I doubt they will have any problems Andy I told you the background.

 

[JumbleDuck]

That misses the point. There was no dispute that 7 and 20mm hulls would crack at forces of 7.7kn and 40.5kn respectively. The dispute here was only whether the actual grounding incident resulted in forces of >40.5kN, and no experiment you can design will tell you that.

If there was no dispute about that then there jolly well ought to have been. Theoretical stress models are all very well (and I have in the past earned my living from doing them) but they always have to be validated against real life. This is particularly the case when cracking is involved.

It's the same with the pump flow rates, which should be easy to check in situ. I presume that when they talk about "40% of nominal" they are talking about fraction of no-head flow rate, by the way. The flow rate in mm in the table probably refers to displacement of a cone-type flowmeter, or something similar.

 

[Sandy Bottom]

Firstly a big Caveat on what I am about to say

1. I am 20 years out of date on this stuff, and
2. I have not read the case details other than what is posted here.

So, three observations with the above caveat;

1. It is somewhat irrelevant as to whether or not the laminate schedule was communicated from the seller to the purchaser because it will most certainly have been communicated from the designer to the seller and thence to the moulder - there will therefore be no doubt as to to the required layup even if not communicated to seller.

2. When I used to oversee builds (including Fairline Squadrons at the factory) - I would examine the design specs from BO, keep the through hull fitting plugs, measure them, eyeball them, chuck a few chemicals on them, compare them to Bernard's specs, and if in any doubt, commission an 'ash test' and ask if the builder wanted to either retain a 50% segment for their own testing or alternatively accept jointly funded testing binding on both parties.

3. If there was ever an incident such as the the above (I never had one) - a first port of call as court witness would be the designer who will a) Have specified the layup in detail and B) Have his reputation on the line in court.

If, in short (and I only have this thread to go on), the laminate was indeed 7mm at that position, the designer should have been asked for his views, and, should it have been put to the designer that it was 7mm instead of 20mm (or whatever it was) then the builder would be stumped by the comments of the designer quite rightly protecting his own professional reputation.
IMHO

Ps. JFM, put the plugs in your pocket

 

[jfm]

If there was no dispute about that then there jolly well ought to have been.

Yes, if the right answer were being sought. But in litigation if the 2 sides agree something, even if it is wrong, it doesn't make sense to say there ought to be a dispute about it. That's just inventing an argument that neither side wants to have and shouldn't be encouraged to have

It's the same with the pump flow rates, which should be easy to check in situ.

I agree, and pearl were let down by their team when the key 40% factor was allied to creep in unchallenged

I presume that when they talk about "40% of nominal" they are talking about fraction of no-head flow rate, by the way.

absolutely not. Read the judgement. They merely plucked the 40% fig from a manual or handbook

The flow rate in mm in the table probably refers to displacement of a cone-type flowmeter, or something similar.

absolutely not. Read the judgement. It's just an absolute value for flow rate

 

[jfm]

Ps. JFM, put the plugs in your pocket

Yup, though one needs special trousers to pocket my plugs

That's a nicely compacted glass rich layup don't ya think? As good as it gets IMHO. Who was your client when surveying Squadron builds? Peters? End customer? These days, occasionally end customers get surveyors to supervise Sq78 builds but I preferred to DIY it.

 

[Sandy Bottom]

Yup, though one needs special trousers to pocket my plugs

That's a nicely compacted glass rich layup don't ya think? As good as it gets IMHO. Who was your client when surveying Squadron builds? Peters? End customer? These days, occasionally end customers get surveyors to supervise Sq78 builds but I preferred to DIY it.

Crikey, I heard that there was a lot of political pressure upon Coca-Cola to drastically reduce can size but that's ridiculous!

I did some engine swaps / negotiations for Peters but not hull stuff IIRC? Mostly PITA private clients who wanted me to achieve for them what you admirably achieve for yourself but which I had to do by being a mind-reader!

 

[JumbleDuck]

Yes, if the right answer were being sought. But in litigation if the 2 sides agree something, even if it is wrong, it doesn't make sense to say there ought to be a dispute about it. That's just inventing an argument that neither side wants to have and shouldn't be encouraged to have

True. But since they seem to have been arguing about the forces involved, I am, as I said, mildly surprised that they agreed on such an incomplete way of estimating them.

absolutely not. Read the judgement. They merely plucked the 40% fig from a manual or handbook

Sure, that's where they got the figure, and we've agreed it could have been found experimentally. But why less than nominal? Every bilge pump I have seen has come with a no-head flowrate, and it is clear - see below - that's what was meant by "nominal capacity" in "In that context, the standard manual indicated that generally the working capacity of bilge bumps would in practice be substantially reduced for various reasons and that the "norm" might be as little as 40% of their nominal capacity."

The judgement refers to "a Model 14A with a nominal capacity of 3,700 gallons per hour" and indeed if you check the specs for the Rule 14A bilge pump (http://store.waterpumpsupply.com/runo12vodcbi6.html) you'll see that it is rated at 3,700 gallons per hour at zero head. The standard Rule manual (http://lib.store.yahoo.net/lib/kingpumps/RUL-PMP-Standard-Bilge-pump-Manual.pdf) gives performance graphs on page 11, which show that the 14A falls to 80% of zero-head capacity at 3' discharge head and to 40% at around 13' discharge head. The smaller 02 (1.500 gph zdh) falls off much more rapidly, and gets to 40% at just 7' discharge head. In this case the 3' seems a bit low and 7' or 13' a bit high, but it should be easy enough to establish. Some further adjustment might be needed for fittings, bends and so on, but if the pipework was reasonably sensible those would be second-order effects.

absolutely not. Read the judgement. It's just an absolute value for flow rate

Millimetres are not, as you have said, flow rates. Actually on re-reading the table in 39 I think the column headings have got confused. Clearly the first two, "Open crack length (inches)" and "Adopted open crack width (mm)" are the same measurements in mm and inches, so it would make sense if column 3 were the assumed (or "adopted") crack width, leaving column 4 as the flow rate. In which case I would love to know how they came up with such nice, round numbers for crack width. Depending on the applied forces it could have been anything from zero to lots, with a highly non-linear relation between flow rate and gap - and the shape would have been unlikely to be a nice smooth curve anyway.

The whole business is quite unsatisfactory from an engineering point of view. Using the flow rate of an untested pump, reduced by an arbitrary amount and comparing it with a simplistic model of an opening fails at almost every possible level. Of course we don't have the actual evidence here, but it looks to me as if the defence were pretty desperate.

 

[Tranona]

Yes Tranona thats stating the obvious. The only document given to the Buyer confirming RCD status would have been the CE certificate and that certainly would not contain the laminate schedule so the question remains as to how the Buyer got the laminate schedule or at least the 20mm figure. Either it was stated in the contract which seems unlikely or Pearl volunteered the information in another way which as I say, was stupid. Yes then, having made that error, Pearl's only defence was to try to prove that the damage would have happened even if the laminate was correctly constructed and in this, of course, they failed.

The contract would not have included the lamination schedule itself. It would have said the boat would comply with the RCD and have a CE mark. To get this mark then must be a Declaration of Conformity (as I am sure you have for your boat) which will list all the standards used in the design and construction, one of which will cover how the hull was designed and should be constructed to achieve the the design requirements, and that would have been recorded in the approval records for the design. In order to issue the certificate, the builder has to demonstrate that it has systems to trace the materials and processes required to do this.

So, even if this grounding had not occurred and the defect in the moulding had been discovered, say if the P bracket had shown signs of movement, there would still have been a breach of contract and the builder would still have to show the details of design as the buyer is entitled to see them. Indeed it would be essential in order to assess the damage and determine the remedial action. Of course in this scenario the builder is likely to say "sorry guv" and pay for repairs and nobody else would be any the wiser.

There is a vast amount of detailed information about the design and construction of the boat that is not included in the description, although pre RCD it might have been, particularly on custom boats. The RCD makes much of that unnecessary as it forces builders to keep records and demonstrate through systems that the boat is properly constructed. When I worked for a now long gone builder we built big commercial powerboats, and most of the contracts would include all the design and construction details because the buyer usually employed a surveyor to monitor the build, or it was being built to classification. My boss hated it because he loved to make ad hoc changes, but customers, often overseas governments insisted.

 

[jfm]

True. But since they seem to have been arguing about the forces involved, I am, as I said, mildly surprised that they agreed on such an incomplete way of estimating them.



Sure, that's where they got the figure, and we've agreed it could have been found experimentally. But why less than nominal? Every bilge pump I have seen has come with a no-head flowrate, and it is clear - see below - that's what was meant by "nominal capacity" in "In that context, the standard manual indicated that generally the working capacity of bilge bumps would in practice be substantially reduced for various reasons and that the "norm" might be as little as 40% of their nominal capacity."

The judgement refers to "a Model 14A with a nominal capacity of 3,700 gallons per hour" and indeed if you check the specs for the Rule 14A bilge pump (http://store.waterpumpsupply.com/runo12vodcbi6.html) you'll see that it is rated at 3,700 gallons per hour at zero head. The standard Rule manual (http://lib.store.yahoo.net/lib/kingpumps/RUL-PMP-Standard-Bilge-pump-Manual.pdf) gives performance graphs on page 11, which show that the 14A falls to 80% of zero-head capacity at 3' discharge head and to 40% at around 13' discharge head. The smaller 02 (1.500 gph zdh) falls off much more rapidly, and gets to 40% at just 7' discharge head. In this case the 3' seems a bit low and 7' or 13' a bit high, but it should be easy enough to establish. Some further adjustment might be needed for fittings, bends and so on, but if the pipework was reasonably sensible those would be second-order effects.



Millimetres are not, as you have said, flow rates. Actually on re-reading the table in 39 I think the column headings have got confused. Clearly the first two, "Open crack length (inches)" and "Adopted open crack width (mm)" are the same measurements in mm and inches, so it would make sense if column 3 were the assumed (or "adopted") crack width, leaving column 4 as the flow rate. In which case I would love to know how they came up with such nice, round numbers for crack width. Depending on the applied forces it could have been anything from zero to lots, with a highly non-linear relation between flow rate and gap - and the shape would have been unlikely to be a nice smooth curve anyway.

The whole business is quite unsatisfactory from an engineering point of view. Using the flow rate of an untested pump, reduced by an arbitrary amount and comparing it with a simplistic model of an opening fails at almost every possible level. Of course we don't have the actual evidence here, but it looks to me as if the defence were pretty desperate.

yup I agree all that. Except the Pearl team weren't desperate, they were incompetent for all the reasons we are agreeing on. The adoption of the 40% factor in the maths was a huge mistake by the pearl team and it worked significantly against them. Likewise the apparent use of simple Bernoulli to compute inward flow rate without adjusting for the rough edged thin slit shape of the orifice (crack) was also a mistake that hurt pearl. And the failure to argue that the crack could have been made then closed up by the rebound elasticity of the grp, and letting the judge dismiss that as unlikely, was another big mistake.

I hope Iain Smallridge is reading. He could have won this with help from this forum. I'm currently running at 3-nil against insurance companies with about £2m total winnings, so this would have been a jog in the park

 

[JumbleDuck]

Likewise the apparent use of simple Bernoulli to compute inward flow rate without adjusting for the rough edged thin slit shape of the orifice (crack) was also a mistake that hurt pearl. And the failure to argue that the crack could have been made then closed up by the rebound elasticity of the grp, and letting the judge dismiss that as unlikely, was another big mistake.

I don't think they could ever have made anything credible from the crack. There just isn't any sensible relationship between length of crack and flow through it.

 

[jfm]

I don't think they could ever have made anything credible from the crack. There just isn't any sensible relationship between length of crack and flow through it.

I totally agree and any good engineer would. The crack opening width seems to have been guessed at 10mm based on I think zero evidence. As you know a 6 inch crack could easily have 5mm or 3mm of opening width or whatever, and there is no "balance of probabilities" that it was 10mm -indeed there seems to be zero evidence for the 10mm

But the fact is that Pearl's experts DID allow the guess of 10mm and the bernouille-computed flow thru the crack to be accepted as evidence for the proposition that the crack was only 6 inches long, and that the force on the hull was <40.5kn, and THAT won the day for the claimants. Hence, Pearl seem to me to have been very badly let down by their advisory team here, for all the reasons you state

 

[oldgit]

Speaking as the man on the Clapham omnibus and from information volunteered by witnesses, the skipper of the boat concerned would appear to be a very incompetent if not dangerous skipper to be near .!
A very disappointing outcome for Pearl indeed .

 

[Deleted User YDKXO]

Mike I don't think you're correct there: I doubt it is Pearl's/their lawyers stupidity on this particular point. The judgement somewhat suggests it was in the contract but even if it wasn't then it was likely discoverable by the claimant in the pre trial disclosure proceedings

You'll have to educate me on legal matters, jfm. Is there any limitation on the information or documents that can be requested by the claimants lawyors or can they request anything they want? What would happen if Pearl stated that the laminate schedule was not in their possession or that the laminate design was the property of the naval architect who designed the boat or the moulding company? What would be the sanction for refusing to supply the documents requested?

 

[Poecheng]

You'll have to educate me on legal matters, jfm. Is there any limitation on the information or documents that can be requested by the claimants lawyors or can they request anything they want? What would happen if Pearl stated that the laminate schedule was not in their possession or that the laminate design was the property of the naval architect who designed the boat or the moulding company? What would be the sanction for refusing to supply the documents requested?

Mike,
Being very used to reading judgements and what is expected in them, (as I have previously posted) I believe that it all points to a build being in accordance with the boat's spec (which must have included the laminate thickness) being a direct condition of the contract. I do not believe it is got at via the RCD or EU marking. Nor do I believe it has been obtained in pre-trial disclosure or indeed pre-action disclosure.
Reasons
1. If it were pre-action disclosure then the J would have mentioned this as part of the narrative of the case. Such actions are fairly rare (often called Norwich Pharmacal application) and tend to be in circs where you cannot otherwise get going. The J would naturally have mentioned this as part of the history.
2. If it were pre-trial disclosure that revealed the spec then you would expect to see something along the lines of "A issued a claim for [cause of action] and then, upon receiving disclosure from Defendant, noted the lamination specification differed from that of the subject boat as built. A applied to amend their claim to add a claim for breach of contract. Permission was granted on [date] and, in due course Defendant amended its defence and admitted that breach of contract" Again it is part of the narrative that is routinely provided when it happens.
3. The fact that disclosure revealed the lamination specification would not itself lead to a claim (uncontested in the event) for breach of contract. The claim could only be made if there was reference to a document as part of the condition of the contract. We do not have the contract itself but know from the judgement that it was a breach of paragraph blah blah of the contract. Therefore there must be something that can be directly referable to a particular specification.
4. It did not come about by the RCD or EU because if the contract required RCD compliance or an EU mark then Pearl complied with that condition; the boat did have an RDC certificate and an EU mark. The argument that proceeds "Yes but you only got that [RCD or EU mark] by sending in a spec that differs from the boat as built" would not wash or would not wash without argument (and yet there was none on this point). I cannot see any lawyer conceding that it was an implied term of the contract that "obtaining/provision of RCD certificate" actually meant "compliance with RCD certificate and building the boat to the specification provided to the RCD authorities".

According to my reading of the judgement: the lack of argument about the terms of the contract, the fact that the breach was admitted, the lack of other explanatory narrative all indicate to me that the contract said "built to the specification set out in Annex 1 attached to this contract", that the purchasers had the contract documentation and then, when someone said "bloody hell, you'll never guess why this bastard sank - its only 7mm thick at the P bracket" someone said "I wonder what it should be, I'll just check the contract documentation?" Everything tells me they had it all and from the beginning and not through disclosure.

 

[jfm]

You'll have to educate me on legal matters, jfm. Is there any limitation on the information or documents that can be requested by the claimants lawyors or can they request anything they want? What would happen if Pearl stated that the laminate schedule was not in their possession or that the laminate design was the property of the naval architect who designed the boat or the moulding company? What would be the sanction for refusing to supply the documents requested?

Poecheng has given a full answer above. I wrote "The judgement somewhat suggests it was in the contract but even if it wasn't then it was likely discoverable by the claimant in the pre trial disclosure proceedings" which is in agreement with Poecheng; my reference to disclosure was only covering off the slight possibility that it wasn't in the contract, but as indicated generally it appears it was in the contract

To answer your question generally, disclosure (even if not used much in this case) is a principle that allows level playing field in terms of information to both sides in litigation, and prevents information starvation being used as a tactic. There are limits of reasonableness of course. The US jargon is discovery. If Pearl stated what you say in your question then I think they'd be lying, but if it were actually true then sure they cannot be forced to hand over something they don't have. They can be forced to compile information into a format that they don't hold it in, but if they genuinely don't know something they cannot be forced to disclose it. In that case the designer could be asked or subpoenaed to give evidence about the lamination schedule, so you get there in the end. All highly academic here I gotta say. I haven't thought of the sanction process but off the cuff I'd expect it is ultimately contempt of court, for which the sanction involves being driven away in a van with quite small windows to a building with quite small windows, for a period of time determined by the judge in his discretion!

 

[Poecheng]

As JFM has written.....
Also disclosure is a requirement of the civil procedure rules (CPR) and failure to comply can lead to strike-out of the claim or defence depending on who in breach (answering your theoretical question - no reason to think there was breach of CPR in this matter).
Deliberate suppression of relevant material would be a contempt (see JFM above) and breach of professional rules; proving it is another thing.(again no suggestion in this case at all)
If a builder in Pearl's position wanted to suppress the laminating specification, that is rather short sighted because a) one way or another the claimant will get hold of it (builder, designer, previous client surveyors etc - even previous builds measured) and then they would have to not look stupid when asked with coruscating sarcasm "so you don't know the spec of your own boats or where that spec might be?; was there a spec of did the builder just make it up as they went along?, not even on a *** packet?, not a single person in your company knows to what the P bracket should be attached? 20mm, 7mm, even 1mm?, did the spec require it to be fibreglass or was it papemache?" THink most would go the disclosure route !

I have been wondering about the 40% matter. It comes from the manual or spec for the pumps and was a material proposition on which the conclusion was founded. Those calculations must have been looked at very carefully because they were in dispute. You would expect that all the variables would have been questioned. So either it wasn't questioned (as JFM said, that is just STOOPID) or it was questioned and the results (which would be privileged) were not favourable and therefore they went along with the 40%.

With pumps you never get 100% and with voltage drop in the wiring, the height of head, the restrictions in the pipes and outlets, etc it is very easy to lose lots of %. But 40%, blimey !

 

[jfm]

As I have been wondering about the 40% matter. It comes from the manual or spec for the pumps and was a material proposition on which the conclusion was founded. Those calculations must have been looked at very carefully because they were in dispute. You would expect that all the variables would have been questioned. So either it wasn't questioned (as JFM said, that is just STOOPID) or it was questioned and the results (which would be privileged) were not favourable and therefore they went along with the 40%.

With pumps you never get 100% and with voltage drop in the wiring, the height of head, the restrictions in the pipes and outlets, etc it is very easy to lose lots of %. But 40%, blimey !

As you say it was (very) material. I don't know, and I have only the judgement to go on, and perhaps I am not as kind as you , but I suspect some not-great work here. I mean, to the two alternatives that follow your "either" should be added a third, namely some not-great work by Pearl's team

The 40% figure in the manual was a "might", written by a manufacturer who would want to cover off product liability etc. Alone the manual formed no basis for accepting the 40%, in these circumstances where even a 20% change (from 40 to 50%) results in a much more than 20% change to the net flow rate into the hull, due to the "leverage" of the constant flow-in rate in the calculation of net flow-in. Sure, they would accept 40% if there was privileged info that the true figure was less than 40%, but I really doubt that was the case. I don't see, as you do, that the calculations were looked at very carefully, especially the 40% factor that seems to have come up late in proceedings

And if that doesn't convince, then you have the strange uncontested assumption of a 10m crack width for a 6 inch crack. Why 10mm? Because it is a round number! It was a guess lacking in evidence. If you do the calc with 7mm you get a materially different answer. Remember (I know you know!) that the claimant had onus of proof on all this. And then we have the apparent application of Bernoulli to compute flow through a thin slit with no apparent allowance for friction in the edge of the orifice (I reverse engineered their numbers and they seem to have computed a round hole value not a thin slit through ripped fibreglass value).

And finally we have the uncontested comment by the judge that he thought it unlikely that the undisputed large crack that was present after lift out could have happened on impact then closed up by springing back - that is another material foundation for the conclusion yet it seems not to have been challenged. The judge himself was evidently not much of an engineer and he should have been challenged when making such engineering conclusions, which are self evidently guesswork

Remember these points are cumulative rather than alternatives. For the claimant to win it has to be the case on B-of-P that (a) the crack wasn't initially 30 inches, AND (b) the crack was a 6 inch slit sprung open to 10mm wide not 7mm with clean Bernoulli flow AND (c) the bilge pumps were working only 40%. A failure to get over ANY ONE of those 3 hurdles means Pearl wins, yet Pearl didn't call a challenge at any of the hurdles.

Just saying! Thanks for the debate and insight.

 

[jfm]

If I get time at weekend, and if my boat has same pumps (Rule 14A) which it might, I'll test the 40% or whatever

As a slightly boring side-issue, Poecheng, as you know CPR, can you comment on this question please. I was surprised by the last para of the judgement where judge said "42.Taking all these matters into consideration, [claimant wins the contract point] on a balance of probabilities, .... In such circumstances, it is unnecessary to consider the claimants' alternative case"

Correct me if I'm wrong but I thought these days the lower court had to comment on the alternatives, in case the loser appeals to a higher court. Otherwise if the higher court overturns the judgement on the contract point on appeal, then it would find itself having to consider the alternative afresh. In this case it would find itself having to hear the SOGA fit-for-purpose alternative afresh. I thought the higher court generally considers that to be not its job. Maybe I'm wrong on that, in this category of case. Do you know?

 

[Deleted User YDKXO]

Thanks to both jfm and Poecheng for detailed explanation