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

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.

Free newsletter

Our daily newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please complete the form below and click on subscribe for daily newsletters from Law Times.

Recent articles & video

Legal aid investments save governments money all over the world, Canadian researchers find

New real estate law podcast begins by tackling cannabis regulations

80% of legal employers prefer technical skills to personality

Torys’ Linda Plumpton named to American College of Trial Lawyers

Pressure mounts for immigration lawyers working with Latin American clients

$100K prize offered by Canadian legal tech start-up

Most Read Articles

OPP charges former tax lawyer with fraud and obstruction of justice

New facets of pure economic loss rule could have huge implications for businesses

Does solicitor-client privilege protect information shared with a legal app?

Court addresses the denial of dependent support for egregious conduct