Navigare Yachting Ltd v Betteto Frett

CourtEastern Caribbean Supreme Court
Docket NumberCLAIM No: BVIHC (COM) 2020/0228
JudgeJack, J
Judgment Date18 Feb 2021
JurisdictionCaribbean States
Neutral Citation[2021] ECSC J0218-1
[2021] ECSC J0218-1

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(COMMERCIAL DIVISION)

CLAIM No: BVIHC (COM) 2020/0228

Between:
Navigare Yachting Limited
Claimant
and
Betteto Frett
Defendant
Appearances:

Ms. Monique Peters of Travers Thorp Alberga (BVI) for the Claimant

Ms. Ruthilea Maximae of Maximae & Co for the Defendant

JUDGMENT (No 2)
1

Jack, J [Ag.]: This is my judgment following the expedited trial of this matter pursuant to an order I made on 14 th January 2021. The claimant (“Navigare”) seeks an order for the release of its yacht, Grande Dame, and substantial damages. The defendant (“Mr. Frett) resists the claim on the grounds that he has lawfully levied a distress on the yacht on 6 th December 2020 for arrears of rent. He also seeks a money judgment for various heads of claim.

The site visit
2

On 15 th February 2021 I conducted a site visit of Inner Harbour Marina, Road Town in presence of counsel (although Ms. Peters arrived late) and Mr. Frett. The marina is orientated west-east and faces north into the harbour. At the east end, beyond a locked gate is a small wharf with a petrol pump. At the west end, a group of mangrove trees forms the western-most boundary of the marina. As originally constructed, there were twelve fingers coming out from the walkway along the marina frontage. These comprised concrete walkways over the seawater supported by two concrete pillars. The width of the water between two fingers was sufficient to allow two monohulled yachts to moor, so long as the beam of the yachts was not too great. Alternatively, one catamaran could moor between two fingers.

3

It was common ground that the marina was damaged in the course of Hurricane Irma in 2017. Three fingers were damaged beyond repair. By the time of my inspection, these had been completely removed and the concrete pillars which supported the damaged fingers had also gone. The effect was that more yachts could be moored in the gaps created by the missing fingers, although the yachts could only be boarded over the transom rather than from the side.

4

Between the mangrove trees and the first finger on the west side, there was space for one yacht. Between the first and second fingers, there was space for two monohulled yachts. It was common ground that Mr. Frett moored a yacht on the port side of this space (in other words next to the first finger). Navigare's case is that Mr. Frett also moored a yacht on the starboard side of this space. I shall return to this issue. It was common ground that Mr. Frett had not used any other parts of the marina for his own purposes at any relevant time.

5

On the east side of the second finger there were two blanks where damaged fingers had been removed. There were then six fingers before the other blank. There was then a last finger before the gate which led to the wharf with the petrol pump. Grande Dame was moored between the fourth and fifth of the surviving fingers. She was chained to the fourth finger. Grande Dame is a large catamaran and filled the entire space between the two fingers.

6

There were seven pedestals on the walkway. These provided water and electricity for yachts (with two plugs for electricity on each). They were inconveniently spaced with two on each side of the second finger from the west, four in the middle and one by the penultimate finger from the east. Given that the marina had space for at least nineteen yachts, there was insufficient electrical supply to service all the vessels simultaneously.

The witnesses
7

At the trial on 16 th February 2021, I heard evidence from Mr. Frett and from Mr. Phillip Winter, the general manager of Navigare. Both men were doing their best to assist the Court. Mr. Frett, however, was less impressive on matters of detail. His accounting records were poor.

The issue of slips and the reduction in rent
8

It is common ground between the parties that Navigare (as tenant) entered a tenancy agreement with Mr. Frett (as landlord) to rent the marina for a term of one year from 15 th November 2019. Although there are infelicities in the description of the premises let, it was common ground that, subject to clause 9 of the lease, the demise was of the whole of Mr. Frett's marina as well as some mooring buoys just to the north of the fingers. The rent agreed was $15,000 per month, but, by clause 9 of the lease, “[i]n the event two of the slips are retained by the Landlord there will be a reduction of $2,400 from the rent.”

9

Navigare's case is that they were only obliged to pay $12,600 per month, because Mr. Frett retained the slips. Mr. Frett's case is that he only occupied one slip. The rent should thus only be reduced to $13,800 per month.

10

I directed that Mr. Frett, although nominally the defendant, plead his case first as Points of Claim. As a result, Navigare pleaded in its Points of Defence and Counterclaim and in its column in the Scott Schedule “that two mooring slips were utilized by the defendant”. The way this was put originally by Ms. Peters was that, if there were two yachts moored, that necessarily meant that two slips were in operation. Mr. Frett's case was that a “slip” was the area between two fingers. Thus, if he moored two yachts side-by-side between two fingers that was use of only one slip.

11

In fact, Mr. Winter's evidence was consistent with Mr. Frett's case. For example, he said that Grande Dame occupied one slip. He said that the two yachts which he said Mr. Frett moored side-by-side in the area between the first and second fingers from the west were in one slip.

12

I find as a fact that the area between two fingers is one slip, whether the area is used by two vessels or one. I do not need to resolve whether Mr. Frett did moor two yachts or only one in the area between the first and second fingers. Either way, I find as a fact that Mr. Frett only used one slip.

13

This, however, is not the end of Navigare's case on the point. Ms. Peters argues that, since Mr. Frett did retain use of part of the marina, clause 9 applied, so that the rent stood to be reduced by the full $2,400. There was no scope, she submitted, under the lease for the rent to be reduced by only $1,200.

14

Mr. Frett gave evidence that the reason for the inclusion of clause 9 and the reference to two slips was because he had been in negotiation with a different charter company, who wanted to rent two slips (in the sense I have accepted of the word). The negotiations in fact came to nothing, so he decided to use one slip for himself. There is no evidence that Mr. Winter knew anything of these negotiations, so they cannot be used in construing the terms of clause 9.

15

Mr. Winter's evidence was that he wanted to rent the whole of the marina and would have liked to use the slip occupied by Mr. Frett. Navigare, I find as a fact, did use all the rest of the marina. I accept Mr. Frett's evidence that Navigare moored yachts next to the mangrove trees by reason of its need for all the space available.

16

In my judgment, the construction of the lease advanced by Ms. Maximae on Mr. Frett's behalf is to be preferred. It makes little sense for Mr. Frett to give Navigare a reduction of $2,400 in its rent, when Navigare's enjoyment of the marina was only reduced by one slip. The position might have been different if Navigare did not use two slips, but I find as a fact that they used all the space available to them. On these facts, I can imply a term that the rent should only be reduced by $1,200, either to ensure business efficacity or as a term which a bystander would consider obvious.

17

It follows from this that there was a shortfall in rent in the period up to the expiry of the lease on 15 th November 2020. I shall consider the position after 15 th November separately.

Set off against rent
18

The lease does not include a clause prohibiting set off. The only relevant covenant by Navigare is to pay the rent “without deductions”, but that is not sufficient to exclude a right of set-off: British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd 1 and Connaught Restaurants Ltd v Indoor Leisure Ltd. 2 Indeed Ms. Maximae did not argue to the contrary.

19

In evidence, Mr. Winter complained that there were various breaches of the terms of the terms of the lease. These included matters such as a failure to install more pedestals for water and electricity and issues surrounding the buoys. The removal of the damaged fingers took longer than was anticipated, he said. However, none of these were pleaded in the Points of Defence and Counterclaim as...

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