A Nova Scotia small claims court has ruled that a marine industry supplier must pay up for a pair of portable toilets that went missing from the Halifax shipyard earlier this year.
Adjudicator Eric K. Sloane said in a written decision released Tuesday that Seagulf Marine Industries Inc., which was acting as a broker for another company that does procurement for the Canadian Navy, owes Jack’s Expert Flush and Toilet Rentals Inc. more than $4,000 for the lost latrines.
“I find that the Defendant cannot escape responsibility for the loss of the toilets,” Sloane said.
According to the decision, Seagulf had contacted Jack’s Expert Flush and Toilet Rentals in early January to have two portable toilets delivered to the docks.
This was because a Navy vessel was scheduled for repairs at the shipyard and workers needed access to toilets as the vessel’s electrical system was being disconnected during the work.
The adjudicator said there was no contract and the delivery was arranged through emails and phone calls.
“There is no dispute about the rental itself, though the bill remains unpaid as a result of the subsequent dispute,” Sloane said.
Jack’s owner, Jack Werry, delivered the toilets on Jan. 10. He testified that he did not know how the toilets were going to be positioned.
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“When he arrived, he was asked if he had brought a crane lift, which he had not,” the decision said. “He assumed from that question that the toilets might be lifted onboard the ship, assuming that a crane was available.”
After being told to position the toilets as close as possible to the ship, he tied them together with rope to give them more stability and left.
On Jan. 22, Werry was told the toilets were no longer needed, and when he returned two days later to pick them up, “the ship had sailed, and the toilets were gone.”
The adjudicator said the toilets had “apparently” been blown or fallen off the docks into the ocean and drifted away.
“I say ‘apparently,’” Sloane said, “because no one witnessed them going into the water, though there was a report from a harbour pilot that one of them was tied to a buoy somewhere in the harbour.
“So, other possibilities exist to explain how they ended up in the water. Nevertheless, they have never been recovered.”
Sloane said “logical inference” suggests the toilets left the dock on Jan. 23 or 24. He also said there was no evidence of high winds at the time. “In fact, historical data suggests otherwise,” he said.
Seagulf has claimed that Jack’s should have secured the toilets better, but Jack’s argues that it delivered the toilets as requested and left it to the customer to determine where they should be placed.
Since there was no written contract specifying who was responsible for the toilets after they were dropped off, Sloane said that question is “best answered with reference to implied terms.”
The adjudicator said he believes it would have been an implied term that once the toilets were dropped off, they were the defendant’s responsibility, unless there was some carelessness on the part of the claimant in placing them.
“The facts here support a finding that Mr. Werry did not know the final resting spot for the toilets and had a reasonable basis to believe that they might be hoisted onto the ship,” the decision said.
“He did as instructed, which was to leave them on the dock as close to the ship as possible. There is no evidence of what was done with them after that.”
Sloane also said there was “no evidence” that Werry was “in any way careless.”
“On the other hand, there are almost endless possibilities for how the Navy and/or Federal Fleet Services might have done, or failed to do something, to safeguard the units,” he said.
Sloane thus found Seagulf liable for the rental charge of $1,322.50, plus replacement costs for the toilets in the amount of $2,760, for a total of $4,082.50. Jack’s is also entitled to $208.95 in costs, the adjudicator said.
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