Supreme Court
Action No. 1 of 1983
17th November, 1983.
Moe, C.J.

Mr. V.H. Courtenay, S.C. for the Plaintiffs.
Mr. Dean Barrow, for the Defendant.

Contract - Offer - Communication of acceptance - Intention to create binding contract - Claim for labour provided and out of pocket expenses allowed.

J U D G M E N T

The Plaintiffs claim from the owner of the ship 'Anytime' the sum of $25,000.00 for goods and materials and services supplied to the ship for her operation and maintenance at the request of the owner; alternatively for necessaries supplied to and repairs done to the ship. The owner claims from the Plaintiffs damages for wrongful detention of the ship and for injury done to the ship while in the custody of the Plaintiffs.

From sometime early in 1981 until 20th August of that year, the ship 'Anytime' owned by the Defendant Mr. Vernon Anderson was moored at the Plaintiffs' marina and the Plaintiffs performed certain services in relation to the ship. All of this was pursuant to a contract between the Plaintiffs and another company named Fleet Indigo Ltd. On the 20th August 1981, Fleet Indigo Ltd. closed its operations in Belize and the contract between the Plaintiffs and Fleet Indigo Ltd. came to an end.

The ship continued to be moored at the Plaintiffs' marina and had various services rendered to her by the Plaintiffs after the 20th August 1981, until 6th July 1983 when the owner took possession of the ship. The Plaintiffs claim that throughout that period there was no contract between the Plaintiffs and the Defendant which governed the basis for the performance of any work or provision of the services to the ship by the Plaintiffs whereas the owner contended that in respect of period 20th August to 31st December 1981 there was a contract as evidenced by a memorandum of understanding which was tendered in evidence.

Mr. David Gegg, Managing Director of the Plaintiffs gave evidence that the Plaintiffs kept the ship after the 20th August because there were negotiations to get the Defendant to bring the ship under contract with another company named Sails Belize Ltd. which had been recently formed. That the Plaintiffs agreed to assume responsibility for the ship and to be able to use her during that period of negotiations until a contract was signed. Further that Mr. Gregg submitted a memorandum of understanding to the owner but it was never sign and returned to him. The Defendant says that when Fleet Indigo Ltd. ceased operations, he and Mr. Gegg had conversations over the fact that the ship owners and the Plaintiffs were in the same fix. Mr. Gegg urged him to keep his ship in service with him until a company to replace Fleet Indigo Ltd. was established. He responded that he would be favourably disposed to do so. A memorandum was submitted which he signed and posted back to Plaintiffs. The owner contended that the basis for the provision of these services was a contract between him and the Plaintiff as evidenced by that memorandum of understanding tendered in evidence.

With regard to the memorandum concerned I found by it the Plaintiffs had made an offer to the Defendant Mr. Anderson but the evidence is that the memorandum was not received back by Mr. Gegg. A question for me was whether acceptance of the offer i.e. by signing and posting, can be regarded as having been communicated to the Plaintiffs. It did not seem to me from the nature of the transaction and the negotiations leading up to it that the Plaintiffs and Defendant intended that there would be a binding agreement between them simply on the Defendant's putting his acceptance of the offer in the post. The circumstances show that the intention was that the fact of acceptance would have to have come to the notice of the Plaintiffs before there could be a binding agreement. The evidence does not show that the acceptance of the offer was communicated to the Plaintiffs and thus that memorandum cannot be held to be a contract between the Plaintiffs and Defendant. Apart from the memorandum of understanding the evidence is that there were many conversations between Plaintiffs and Defendant concerning care, custody and maintenance of the ship by the Plaintiff but no evidence that any agreement had been reached as to the terms on which this would be done.

There was therefore no contract concluded between the Plaintiffs and the owner or anyone else for the mooring of the 'Anytime' at the Plaintiffs marina or for the performance of any services in relation to her by the Plaintiffs as from the 25th August 1981. In these circumstances, I hold that the owner has an obligation to pay reasonable remuneration for the work performed and services rendered to the ship by the Plaintiffs as from the 20th August 1981. See Craven-Ellis v. Canons Limited [1936] 2 K.B. 403. This is the position up to the 3lst December 1981.

The evidence of Mr. Gegg is that as from 1st January l982 the ship 'Anytime' was kept moored at the Plaintiffs' marina by a company named Sails Belize Ltd. as part of that company's fleet, in pursuance of a contract between the Plaintiffs and the said Sails Belize Ltd. under which contract the Plaintiffs would perform certain services and be paid for them by the company. Sails Belize Ltd. had contracts with various owners of the ships forming its fleet by virtue of which 50% of the revenue earned by a particular ship went to Sails Belize Ltd. and 50% to the owner. Out of the half portion going to the owner, he was responsible to pay the Plaintiffs for the services they rendered. There was no such contract between Sails Belize and the Defendant but the sharing of the revenue earned by the 'Anytime' was also divided 50% to Sails Belize and 50% to the owner. The Defendant in his evidence said there was an understanding between him and Mr. Gegg, as President of Sails Belize Ltd. that the vessel would be operated by Sails Belize through his Franchise Operator (the Plaintiffs) ---. There was an agreement as to the bearing of the operational and maintenance costs. Sails Belize would receive 50% of the revenues and the other 50% credited to his account established and maintained at Sails Belize office in Florida. From the 50% credited to his account Sails Belize would disburse funds to the Plaintiffs based on billings and documents provided to Sails Belize by the Plaintiffs.

I concluded that the Plaintiffs provided the mooring or docking of the ship at their marina at the request of the company Sails Belize Ltd. who according to the evidence kept the ship moored there. I therefore hold that any claim for the mooring or docking of the ship is properly made against the company Sails Belize Ltd. Further the inference I draw is that the said company in operating the vessel as part of a charter fleet requested the services which were performed. Any claim in respect of such services would also be properly made against Sails Belize Ltd. In the circumstances I cannot find that the Plaintiffs' claim has been sustained against the owner of the ship for work performed and services rendered by the Plaintiffs as from 1st January 1982.

I therefore turn to determine the amount to which the Plaintiffs are entitled for the period 20th August 1981 to 31st December 1981. I refer to a statement of account put in evidence which listed the costs for work done and services rendered during the period and set out two items to which Defendant made specific reference -

Labour provided - for grinding and refabricating 32 blisters to hull and gel-coat of Anytime at $100 each - $3,200.

Out of pocket expenses - For BME for handling of vessel Anytime (Dockyard, Electrical - Fiberglass resins, fabrics, sandpaper and paing) - $600.00

I also set out a portion of a paragraph from a letter dated September 20th, 1982 which the Plaintiffs sent to the Defendant as a report on the ship 'Anytime'. It reads "I should here point out that these figures do not include an amount of about $600 which was spent to haul and repair blisters to the underbody of the vessel's hull. At that time the vessel was sanded and bottom paint applied, boot stripe was sanded and repainted and hull sides were compounded and buffed." The Defendant submitted that the amount $3,200 for labour provided should not be accepted on the ground that the blisters referred to in that item are the same blisters referred to in the paragraph above quoted. He also asked the Court to find that the quoted paragraph in fact combined and was dealing with two items in the statement of accounts; namely - Labour provided and Out of pocket Expenses. I did not accept the Defendant's contention. I do not expect out of pocket expenses to be lumped with labour costs; nor do I understand why those out of pocket expenses should be regarded as combined with those Labour costs and not with any other labour costs. Further there has been no challenge or suggestion that 32 blisters were not ground and refabricated and that the labour for each would not be $100. I allow the amount concerned. There was an admission from the Managing Director of the Plaintiffs that during the period 20th August - 31st December 1981 the Defendant's ship earned an amount of approximately Four Hundred dollars (U.S. Currency). He also said that income would have gone to Sails Belize. The Defendant asked that that sum be taken into account in determining the amount to be allowed the Plaintiffs. According to the evidence the sum earned by the ship would not be of concern to the Plaintiffs. In my view it would fall to be considered in a matter between the owner and Sails Belize Ltd. who was operating the ship. The total amount allowed to the Plaintiffs is $4,977.00.

The owner claimed from the Plaintiffs damages for wrongful detention of the ship for the period 25th February 1983 to 6th July 1983 and damages for injury done to the ship while it was in the custody of the Plaintiffs. By my finding above that the ship was in the custody of Sails Belize Ltd. as from the 1st January, 1982 I must hold that in respect of the period 25th February to 6th July 1983 the Defendant has not properly claimed against the Plaintiffs.

Judgment for the Plaintiffs. They are to have their costs.

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