Duncan v Trinidad Dredging Company Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Bernard, J.A.,Braithwaite J.A. |
| Judgment Date | 02 August 1984 |
| Neutral Citation | TT 1984 CA 45 |
| Docket Number | Civil Appeal No. 29 of 1979 |
| Court | Court of Appeal (Trinidad and Tobago) |
| Date | 02 August 1984 |
Court of Appeal
Kelsick, C.J.; Braithwaite, J.A.; Bernard, J.A
Civil Appeal No. 29 of 1979
Mr. Ewart Thorne S.C. ( E. Mathews with him) — for the appellant
Mr. Frank Solomon and C. Hamel Smith — for the respondent
Admiralty Law - Arrest of dredging equipment — Lawful seizure — Subsequent sale — Damages — Damages to be difference between value of equipment at date of arrest and at sale.
Tort - Damages — Negligence — Dredging equipment allowed to deteriorate — Principles on which damages to be assessed.
The appellant who was one of two point defendants (the Attorney General of Trinidad and Tobago was the other) in the Court below has appealed against an assessment of damages by a Judge in Chambers in which he awarded the respondent the sum of one million dollars ($1,000,000) as compensation for the loss occasioned to it owing to the wrongful acts or omissions of the appellant whilst its dredging equipment comprising of a dredger called the “Floating City” (formerly the “Sadie M”), a tug called the “Donev” and an unnamed stick lighter was in the latter's lawful custody. This global sum was made up as follows:
(a) For the “Floating City” —
$800,000
(b) For the “Donev” —
$120,000
(c) For the Stick Lighter —
80,000
The trial judge also awarded the payment of interest at the rate of 6% per annum on the global sum from the date of the filing of the writ in the action brought by the respondent — the plaintiff in the court below — to the date of payment.
The amended grounds of appeal were as follows:
-
(a) The learned trial judge erred in law and/or applied the wrong principle both in quantifying the extent of the loss of the respondent and in assessing the value of the vesselsy the subject matter of the claim.
-
(b) The award of damages is so inordinately high that it must be a wholly erroneous estimate of the amount of the damages.
-
(c) The judgment is unreasonable and cannot be supported having regard to the evidence.
-
(d) The trial judge failed to take into account the respondent's duty to mitigate damage and the evidence tendered in connection therewith.
The relief sought by the appellant was that the decision be set aside and that an order be made for the damages to be assessed de novo.
The history of the matter leading up to the award by the judge in 1979 goes as far back as 1970. It will be necessary in the first instance to recite it in some detail. I do so not only because, among other things, it appears to me to reveal a tangled tale but also because of the light that it necessarily throws upon certain of the grounds of appeal and the interesting arguments thereon.
In the year 1970, the Trinidad Dredging Company (the respondent) purchased the dredging equipment in New York. It was later towed down to this country. Thereafter, it was used by the respondent in carrying out dredging operations for the government of St. Vincent on the one hand and for the Port Authority of Trinidad and Tobago on the other. Dennis Scott (“Scott”) and Dr. Selwyn Lee Young (“Dr. Young”) were persons who had intimate knowledge of the dredging equipment. Scott — a witness for the respondent — was employed by the latter as its Dredging Superintendent. His association with the dredging equipment began from the day that he boarded it when it had berthed in Trinidad in December of 1970. Dr. Young — a witness for the appellant — had come to know it in his capacity as a consulting engineer in the firm of Wallace vans and Partners (West Indies). That firm was responsible for advising the government of St. Vincent in the contract which it had with the respondent for the dredging operations which the latter was doing for the government in 1971. He was the person assigned by the firm to so advise that government. That apart, he had actually gone aboard it within weeks of its arrival in this country and later did so on more than one occasion when it was in St. Vincent and again when it returned to Trinidad. Other persons, namely Cecil Chin for the respondent, and David Messiah for the appellant also had some knowledge of the equipment but from the evidence theirs could not be said to be in the same category as that of Scott and Dr. Young's.
In Admiralty Proceedings A 13 of 1972 brought by John O'Sullivan against the owners of the “Floating City” a High Court Judge on September 26 th, 1972, made an order for the arrest of this vessel. Later on October 6 th, of the same year in Admiralty Proceedings A 14 of 1972 brought by the owners of the yacht “Reverie” against the owners of the “Donev” a similar order in similar terms was also made by another High Court Judge in respect of the “Donev”. On this very day in Admiralty Proceedings A 15 of 1972 brought by the same John O(Sullivan against the owners of the “Floating City”, “Donev” and a Stick Lighter (unnamed) another similar order to the same effect was made by the same High Court Judge in respect of the Stick Lighter.
The owners of all three vessels were at the time still the respondent.
The orders of the High Court Judge were carried out by Raymond Riley (“Riley”), an Assistant Marshal of the Supreme Court to whom the several warrants of arrest had been entrusted and who in his performance of his functions as Assistant Marshal, had promptly affixed them in a conspicuous place on the respective items on the same day on which the respective orders were made. The vessels were all moored at or in the area of a place called Small Boats Landing at Chaguaramas Harbour at the time when the notices of their arrest had been drawn to the attention of persons on board including the captain and others and the acts of arrest performed, Riley's account about the conditions of these vessels when he went to the area on the respective days was that the “Floating City” was, to use his own words, “in a state of deterioration” and that “certain parts were rotten”. The “Donev” was in practically good shape. The Stick Lighter was in bad condition. The top of it was covered with steel or iron and on going up the ladder he encountered some difficulty in finding his footing and had to be assisted by one of the workmen on board.
Riley also claimed that he had made it clear to the captain that he and his crew were free to remain on board for the purpose of maintaining and preserving the vessels.
Between the issue of all these threw warrants of arrest and of periodical visits to the site by Riley, a number of developments occurred. On March 30 th, 1973, Solicitors for the respondent sought and, it would appear, obtained the permission of the Registrar and Marshal to remove the three vessels from their original berthing spot to one about 100 feet due west along the shore line because they were, it was claimed, obstructing the free passage of other vessels berthed at the premises (D.L. 6). It appears too that, without seeking and obtaining the permission of the Registrar and Marshal, O'Sullivan later moved the “Floating City” and that through this the vessel became partially submerged.
At some stage, precisely when is unclear from the evidence, one Beebee who was an employee of O(Sullivan and who, it would seem, was placed on the site by O'Sullivan himself to perform the functions of watchman was withdrawn by O'Sullivan. What is clear, however, is that following this development the Second Deputy Registrar and Marshal of the Supreme Court, L. Tewari, on July 4 th, 1973, by notice addressed to Solicitors for the respondent and to another Solicitor whose interest is not affected by this appeal sought the assistance of the respondent in the matter. The notice (D.L. 5) was in these terms:
(A 15 of 1972:
BETWEEN
JOHN O(SULLIVAN Plaintiff
And
1. The owners of the ‘M/V Done’
2. The owners of the Dredger ‘Floating City’
3. The owners of the Barge ‘Irving Defendants’
4. The owners of the Stick Lighter (No Name)
Take Notice that the Watchman (sic) employed by the plaintiff for the purpose of watching over the above vessel has been removed by the plaintiff.
Please take whatever steps may be necessary to preserve the said vessel, as the Marshal does not hold himself responsible for any loss or damage caused to the said vessel.”
There was no cooperation on the part of the respondent in this regard. The only reaction to the notice by the respondent was a series of separate letters addressed to the Attorney General and copied to the Registrar and Marshal of the Supreme Court dated July 13 th (D.L. 2)' referring to an earlier one of June 14 th from its Solicitor (D.L. 3), and July 31 st (D.L. 1), 1973, signed respectively by R.D. Jerry (Managing Director and David Law (Chairman) of the respondent, drawing attention. to the apparent neglect and acts of vandalism that were seemingly taking place, pinpointing the responsibility for the safe custody of the vessels and calling for, among other things, an indication of his intentions. Beyond these the respondent went no further. Indeed, Law himself admitted in evidence that even though his company was in receipt of the Marshal's notice they were content to and in fact did nothing in furtherance of the Marshal's efforts at preserving the res. In the end further submersion of and continuing deterioration in all the dredging equipment took place owing to sea and weather conditions coupled with lack of proper maintenance and supervision, the deterioration taking place both before and after one J.H. Eden came into the picture. I would refer to this person later but I would digress for the moment to observe in passing that I do not understand the law to be that where a vessel is arrested in pursuance of Admiralty Proceedings its owner is shut out of the picture completely or for that matter is precluded from asserting any of his rights thereto and more particularly so where his...
To continue reading
Request your trial