By Dr. Anthony Marinac, Solicitor Advocate
We all know that part of prudent boat ownership involves attending to routine maintenance on board your vessel, whether that involves repainting, engine maintenance, replacement of rigging, or any of a hundred other necessary (and usually expensive!) tasks. Worse still, sometimes vessels are involved in mishaps of one type or another, and require repairs.
Often, those tasks involve engaging an external professional – or more – to perform the actual work on the boat. Usually, everything goes fine, and before you know it, you’re back on the water.
Sometimes, though, maintenance is not properly completed, or repairs are not properly made, and you find yourself in a contract dispute. If this occurs, then without knowing it, you may find yourself to be under certain legal duties, even though you’re the innocent party.
WHAT IS THE DUTY TO MITIGATE?
Simply put, the law says that in a contractual dispute, you cannot be compensated for any damage that you could have taken steps to avoid. So if someone does poor work on your boat, you are quite likely to be under a duty to engage another contractor to fix the problem left behind. If you don’t, then you won’t be able to claim compensation for any later harm.
An example will help to illustrate the concept. Let us say that you have engaged a contractor to repair the seals on weather deck-level watertight hatches, because the seals have simply degraded with time. The contractor does not complete the work effectively, and the result is that the hatches do not seal. If, despite knowing this, you still used the vessel at sea, the contractor would not be liable for water damage to the interior of the vessel. The law will say that you knew about the defect in the seal, and so YOU — not the contractor — are responsible for the damage to the interior of the vessel.
WHAT CAN YOU DO?
If you become aware that works on your vessel are not up to scratch, the first thing you should do is contact the contractor who performed the work. This is a relatively small industry, where reputation is everything. Often, if the contractor finds that the work is not up to scratch, it will be repaired without any further costs, no questions asked.
If that doesn’t happen, though, the best things you can do are:
1. First, send the contractor a letter or email, setting out the work they were asked to do, the price that you paid for the work, and the problems with the job as completed. If you can, attach photographs of the work.
2. At the end of the letter, advise the contractor that if they don’t undertake the repairs, then you intend, at their expense, to have the repairs undertaken by another contractor.
3. If the contractor doesn’t undertake the repairs, have the work undertaken by another contractor. You are entitled to choose the contractor, and you are entitled to choose what that contractor does, so long as your choices are reasonable.
4. After the work is done, and you have paid for the work, forward the receipt to the original contractor, along with a demand for repayment of that amount.
If they continue to refuse to meet their obligations, then it may be time for you to engage in legal action. At Pacific Maritime Lawyers, we regularly provide clients with advice regarding disputes of just this type, and we specialise in finding commercially sensible solutions which don’t cost an arm and a leg, getting you back out on the water as quickly as possible, with as little stress as we can manage. We hope you’ll never need us, but we’ll be here if you do!
You can call Pacific Maritime Lawyers on 1300 797 627 – keep the number handy!
Published in print January-March 2022
