Federal Appeal


Contracts

EXEMPTION CLAUSES

No error in trial judge’s conclusion that exclusion clauses did not protect appellant

Appellant, in business of storing and servicing vessels, agreed to remove respondent’s vessel from water in order to effect repairs. Respondent signed Statement of Acceptance of Responsibility which stated that respondent accepted responsibility for all damage which may result during lift of vessel except that resulting from negligence by crane operator. Statement incorporated by reference notice and warning at appellant’s premises stating that owners took all responsibility for vessels. While respondent’s vessel undergoing repair, heavy winds swept through and dislodged respondent’s vessel, causing serious structural damage. Respondent commenced action. Appellant claimed it was respondent’s responsibility to build cradle to secure vessel and relied on exclusion clauses in Statement of Acceptance, and more particularly, statement that respondent understood and agreed that securing and locking of vessel was his responsibility. Trial judge allowed respondent’s action. Appellant appealed, arguing that trial judge erred in drawing adverse inference against appellant for allegedly disposing intentionally of relevant evidence and in concluding that exclusion clauses did not protect appellant from its negligence. Appeal dismissed. Trial judge did not make any reviewable error in concluding that exclusion clauses did not protect appellant. She found that “securing and locking” related to securing of lines, buoys and equipment and closing of hatches, windows and doors of vessel while vessel on appellant’s premises. Since it was clear that appellant was responsible for erection of cradle, this interpretation did not constitute error. Appellant took over from respondent the obligation to secure vessel, notwithstanding contractual provision in statement. Appellant, having decided to assume obligation of securing vessel, was bound to secure it properly. Warning signs applied to situations where boats had been left on appellant’s premises for purpose of storage and not applicable.

Burin Peninsula Marine Service Centre v. Forsey (Oct. 9, 2015, F.C.A., M Nadon J.A., Johanne Trudel J.A., and Yves de Montigny J.A., File No. A-506-14) Decision at 246 A.C.W.S. (3d) 699 was affirmed.  258 A.C.W.S. (3d) 314.

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