Sousa (trading as Sousa's Marine Service and Auto Body Spray Painting) v Warner 1994 Civil Appeal No. 4

• Jurisdiction: Bermuda
• Judgment Date: 21 December 1993
• Date: 21 December 1993
• Docket Number: CML Jurisdiction 1990 No. 425
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Wade, J

CML Jurisdiction 1990 No. 425

Wilbert Warner

Plaintiff

and

Robert Sousa

Defendant

Mr. Edward Ishmael King for the Plaintiff

Mr. Chris LaVigne for the Defendant

Sale of Goods Act 1978 s. 14(3)

Contract — Sale of boat — Rescission — Misrepresentation as to quality and condition and fitness for purpose — Breach of implied conditions

JUDGMENT

Wade, J.

This is a claim by the Plaintiff, Dr. Wilbert Warner for inter alia. recession and damages totalling $21,790 against the Defendant.

In the Statement of Claim the Plaintiff alleges that on or about the 10th February, 1990 he bought a secondhand Wellcraft 210 Elite Motorboat (the boat) with a 230 horsepower engine from the Defendant.

The Defendant commended the quality and condition of the motorboat, the subject of this dispute to him and said that it was a 1986 model in excellent condition.

The Plaintiff in reliance on the Defendant's representation, bought the motorboat for $18,900, inclusive of $1.400 for re-upholstering and repairs to the canopy. The Plaintiff paid an additional sum of $2,890 to other agencies. being the costs of building a mooring $2,500, insurance $373, and a mooring application $17.

The Defendant promised that all works would be completed and the motorboat ready for launching before the end of April 1990. The motorboat was not launched until 23rd May, 1990. Some fifteen (15) minutes after launching, the motorboat's engine malfunctioned and the boat remained adrift until it was rescued by Marine Police.

The Defendant took the boat back to his boat-yard and allegedly effected repairs. The boat was again launched on the 28th July. 1990. The motorboat malfunctioned once again, and drifted for some 90 minutes. It was towed to shore and secured for recovery by the Defendant. Sometime thereafter, the Defendant removed the boat and took it back to his boat-yard.

Soon after the 28th of July launching, the Plaintiff discovered that the boat was not built in 1986 but was built in 1983. Consequently, in a letter dated 31st July. 1990 the Plaintiff ‘rescinded and repudiated’ the contract.

In his defence, the Defendant denies, amongst other things, that he made an oral representation to the Plaintiff that the boat was in excellent condition and fit for the purpose intended.

The Defendant contended that:

• i) at the time the Plaintiff purported to rescind the contract, the boat was in excellent condition and fit for the purpose for which it was intended:

• ii) the Plaintiff by conduct has affirmed the contract and is not entitled to rescind;

• iii) if an oral representation was made it was not relied upon by the Plaintiff, as his reliance was placed upon a third party's inspection;

• iv) the Defendant denied informing the Plaintiff that the boat was a 1986 model, nor that the Plaintiff asked the Defendant what year the boat was made and that he informed the Plaintiff he was selling the boat ‘as is’ and relies on caveat empteor.

It should be noted that the Defendant's defence and counterclaim did not plead that the Defendant informed the Plaintiff he was selling the boat ‘as is’ and relies on caveat empteor. However. no objection was taken by the Plaintiff and these issues were dealt with on the evidence.

The Defendant counterclaims for expenses incurred, loss and damage as a result of the storage of the boat from 30th July, 1990 and continuing.

Dr. Wilbert Warner, a medical doctor, testified that in late January, 1990 he visited Sousa Marine Services, the business premises of the Defendant Mr. Robert Sousa, and spoke with him. Dr. Warner said he told Mr. Sousa that he was ‘a novice at boating’ but he was looking to purchase a boat for pleasure for his family.

Dr. Warner said ‘I stipulated that I was looking for a boat that was reliable and dependable and not necessarily fancy. I remarked several times to Mr. Sousa that I did not want a boat that was going to leave me stranded 5 miles off shore. I told him I did not want anything older than 3 years. Three to four years was the limit.’

Dr. Warner said that there were several boats in the yard. He was shown the boat (see photograph 24) and was told that it was ‘a 1986 model and that it was in excellent running condition’. He looked at the boat and he returned several times over the following week or two whilst he was trying to make up his mind whether to engage in the purchase. He continued discussing the matter with Mr. Sousa on the occasions he visited Sousa Marines. He requested Mr. Gibbons to go and take a look at the boat to give him his impression.

Dr. Warner said that on the 10th February, 1990 he visited Mr. Sousa's premises and informed Mr. Sousa that he would be willing to purchase the boat under certain conditions, namely:

• 1. the engine was to be in excellent working condition;

• 2. the awnings and upholstery were to be repaired;

• 3. the boat was to be ready and in the water by the end of April (10 weeks hence);

• 4. that Mr. Sousa would fully instruct him on the use and handling of the boat when it was launched.

He said that Mr. Sousa verbally assured him that the engine was in ‘top class condition’ there was ‘no problem with it’ and the other conditions would be fulfilled.

He paid a total of $18,900 ($17,500 for the boat plus $1.400 for upholstering and the canopy). On the 10th March, 1990 he gave Mr. Sousa a cheque in the amount of $10,000. He wanted to give Mr. Sousa the balance of $8,900 after the boat was launched but Mr. Sousa insisted that he be paid whilst the work was being carried out. He paid Mr. Sousa the balance of $8,900 by cheque on the 23rd March, 1990.

On the 22nd May, 1990 Mr. Sousa hand wrote, in Dr. Warner's presence a receipt on a yellow sheet of paper (PE 9) which Dr. Warner took to his office, photocopied and returned a copy to Mr. Sousa.

Dr. Warner said PE 9 came about because he needed to have a document to register the boat for the moorings.

In so far as the typewritten Bill of Sale (PE 2) is concerned, Dr. Warner typed this document in his office. It was signed by both parties on the 23rd March, 1990. Dr. Warner said that he applied to Marine & Ports for a moorings licence and he received notification (PE 10) of its approval mid April 1990.

He said Mr. Sousa told him he knew someone who could put down the moorings. He recommended Renaud Marine who completed putting down the moorings on 5th May, 1990 at a cost of $2,500.

Dr. Warner said that between 23rd March, 1990 and the 25th May, 1990 he made several trips to the boat yard. It then became apparent to him the boat would not be ready by April 30th. The boat was finally launched on 23rd May, 1990. Mr. Sousa, Mr. Sousa's employee (Mr. Pacheco) and Dr. Warner were present. Mr. Sousa was at the controls when they pulled off from the boat slip and motored in a southerly direction towards the middle of Harrington Sound. After 5. 7 to 8 minutes the engine malfunctioned and went totally dead. Mr. Sousa and his employee immediately removed the engine housing and commenced working on the engine. They were unsuccessful. The boat drifted between 90 minutes to 2 hours. Eventually it drifted to a point where Mr. Pacheco was able to scramble ashore, borrow a telephone and call the Marine Police who arrived about 1 hour later, and towed the boat back to the boat slip at Devil's Hole.

Mr. Sousa took the boat back to his boat-yard. A couple of days later Mr. Sousa told him the engine head was blown and the engine and piston needed replacing and he had to get a part from the manufacturers in the United States, and this would take about 4 weeks.

The boat was next ready for launching on Saturday, 28th July, 1990. Mr. Sousa was not present on that occasion as he had informed Dr. Warner that he was busy, and if he wanted the boat he was to make his...