Geoffrey Holt v Endless Summer Charters Ltd

• Jurisdiction: British Virgin Islands
• Judgment Date: 10 June 1999
• Neutral Citation: VG 1999 HC 8
• Date: 10 June 1999
• Docket Number: Suit No 174 of 1989
• Court: High Court (British Virgin Islands)

IN THE HIGH COURT OF JUSTICE (CIVIL SUIT)

Moore J

Suit No 174 of 1989

Between

Geoffrey Holt

Plaintiff

and

Endless Summer Charters Limited

Defendant

Mr J.S. Archibald Q. C., for the plaintiff.

Mr. Jack Husbands and Mrs. Astra Penn-Kennedy for the Defendant

THE PLAINTIFF'S CASE

1 The Plaintiff in this case sues for damages arising out of an alleged Breach of Contract of Employment or alternatively Damages for Negligent Misrepresentation. He also claims Damages for breach of agreement relating to insurance cover, salary at the rate of $10,000 per annum and interest. The Principal witness for the plaintiff was the plaintiff himself. He gave his name as Geoffrey Holt. He was 18 years old at the time when he sustained his injury. He is the Marketing Manager of Deloitte and Touche. Simon O'Callaghan's friendship with the plaintiff goes back to their attendance at a Roman Catholic Boys School in Southampton. Friendship and loyalty may have arisen from the common old school tie. His principal hobby has always been sailing. He appears to have acquired much sailing experience in his 18 years of life up to the time of his accident.

2 The plaintiff refers to his employment with Endless Summer Charters in May of 1984. His account of that employment is clear and cogent. Barry Rice's account was a grudging admission that the Plaintiff had in fact worked for him during that period in violation of the work permit laws of the British Virgin Islands. On this issue, the plaintiff was an altogether more coherent, straightforward and therefore more credible witness. He had done six days' work and had been paid $120 on an Endless Summer Charters Company Cheque. That cheque was paid by Barry Rice.

3 The plaintiff later sailed back to England. He arrived there on the 6 ^th of June. He took a number of jobs during the summer of 1984 which need not concern us further except that they were mainly on boats. He bought a car. Sometime late in August, the 28 ^th or 29 ^th a meeting took place at the house of Barry Rice's in laws in Southampton. Several matters were discussed including salary, Insurance, and Immigration Procedures for joining a Company in the British Virgin Islands. The second meeting was by chance at the Jolly Sailor Pub in Hamble. It was the Village Regatta. The Plaintiff introduced Simon O'Callaghan to Barry Rice. Insurance was touched on briefly. By the time he gave his evidence, the matter of insurance had assumed pivotal importance in the plaintiff's mind. His claims against the defendant rested heavily upon it. He testified that his insurance premium for his BMW car was high because he was only 18 years old and wanted to insure the car for a short period of time. He had at the back of his mind the plight of his friend Shawn Cusack who had been caught without insurance after taking ill while working at Bellamy Cay in the B.V.I.. Barry Rice stressed that there was no work for O'Callaghan but offered him full board in exchange for him assisting the plaintiff to work in preparing Endless Summer for the Season. Once the Season got underway, however, O'Callaghan would have to vacate his berth.

4 A Third meeting took place on Sunday, the 2 ^nd September 1984 between Rice and the Plaintiff at Moody's Marina on the Hamble. Simon O'Callaghan was again present. It was a brief meeting. O'Callaghan spoke of having procured his own insurance. The plaintiff confirmed that he and O'Callagahan had pre booked their flights out to Tortola.

5 The fourth and perhaps the most important of these meetings took place at a Budget Ticket Shop in Covent Garden London. Its name is Buckingham Travel. According to the plaintiff and Simon O'Callaghan, it was an unscheduled meeting. It took place by chance. Barry Rice testified that it took place by arrangement. The Plaintiff contends that by prior agreement with Barry Rice, his air fare from London to the BVI was to be reimbursed after he had advanced his own money for the purchase of his ticket. The plaintiff testified that his airfare had been paid by a previous American employer from Antigua to London so that he could sail their boat the ‘Rampant’ across the Atlantic as First mate from Hamble to the U.S. Virgin Islands. This evidence has not been successfully traversed.

6 From the evidence of the plaintiff and of Barry Rice, I have come to the conclusion that the plaintiff was a fine sailor. He also had the right chemistry requisite for harmonious relationships on board small boats. His personality was conducive to the atmosphere of a ‘Happy Ship’. He was the sort of man that a good skipper would want to have on board as his first mate.

7 These circumstances make more credible the plaintiff's evidence that Barry Rice on behalf of the Defendant had previously agreed to pay his air fare from London to the BVI. The chance meeting in Buckingham Travel rendered it unnecessary for the plaintiff to expend his own money to purchase his ticket. Barry Rice was right there engaged in the exercise of ticket purchasing for himself and his wife. It was a simple matter to include the plaintiff's ticket in the purchase he was making. That is exactly what he did and paid for the whole lot with the company's credit card. To date, no demand has been made of the plaintiff for payment by him to the Defendant of the cost of his air fare.

8 The plaintiff testified that he was promised US$10,000 per year plus one quarter of all tips received. Barry Rice testified that the proffered remuneration was $650. per month or roughly $7,800. per year. When he was, as it were, on trial, the plaintiff was paid $120 for 6 days work. This translates to $7,300 per year. A figure of $10,000 per year for a man who came through his trials with flying colours is within the range of credibility and I accept the plaintiff's evidence on this aspect rather than that of Barry Rice. The contribution of tips to a relevant remuneration package is almost a notorious fact and I accept the plaintiff's evidence on this also.

9 The initial dialogue between the plaintiff and Barry Rice about insurance according to the plaintiff's recollection took place in private between the two men during the first meeting. No witnesses were therefore present when Rice told him not to waste his money on taking out separate insurance coverage because he would be covered on the Insurance of Endless Summer Charters Limited in the event of anything happening to him.

10 Immigration was discussed. The plaintiff had been to the BVI before. He had sailed into ports in various parts of the world after having traveled from other countries. He knew and must have known that the Immigration authorities at Beef Island would ask whether a non resident seeking to enter the Territory from a foreign port was doing so for pleasure or for the purpose of seeking employment. If, as he contends, he was already recruited and employed by the defendant in England, then he must have known that if Barry Rice told him quite clearly to say that he was arriving on pleasure reasons, that Barry rice was inviting him to make a false declaration to the Immigration Authorities of the territory. The representation that it was customary for people to make similar false declarations did not make it any less illegal. By accepting that when he arrived in the Islands he would then complete his immigration form as a pleasure visitor, when his true reason for entering the territory was to take up the employment which, as far as he was concerned had already commenced in England, he was accepting the role of a willing party to a conspiracy to make a false declaration to the Immigration Authorities in breach of the laws of the Virgin islands. And then, having arrived at Beef island as an Airline passenger, he did as he was told and completed his arrival visa as a tourist.

11 The plaintiff was permitted to enter the Territory on the 6 ^th September, 1984 and remain until 3 ^rd October 1984 provided no work is undertaken without permission. Had the plaintiff made his true intentions known to the Immigration Officer, he would not have been permitted to enter the territory without a valid work permit. The plaintiff and Simon O'Callanghan journeyed by taxi directly to Nanny Cay where they arrived at about noon. Endless Summer II was the boat the plaintiff was to have worked on. He received the keys of that vessel from Jim Scott. He already knew the vessel having worked upon it in May of that year. Scott showed the plaintiff the company store and the materials for preparing woodwork on the yacht. By 3: 00 or 4:00 o'clock that very afternoon the plaintiff and O'Callagnhan had commenced work on the boat. They had begun sanding down the woodwork in the saloon of the boat. Neither had a work permit enabling him to do so lawfully. They were in clear and undouted violation of the Labour Code. The following day, after a refreshing night's rest, the rejuvenated plaintiff and Simon set to work again. The plaintiff sanded and Simon prepared the varnishes using the materials shown to them by Scott the day before. They worked from about 8:00 a.m. to about 10: 00 or 11:00 a.m. that morning.

12 Jim Scott gave the plaintiff the keys to the defendant's car. The plaintiff then went to complete a work permit application. He was satisfied that he had done a good morning's work. A brief tour of the Island followed. At Cane Garden Bay the plaintiff decided to have a swim as it was a hot day. It was there that he sustained his most unfortunate accident. Simon probably saved the plaintiff's life. He summoned an ambulance which took the plaintiff to Peebles Hospital.

13 The plaintiff's situation was evidently grave. He was rushed by US Coast Guard Helicopter to Puerto Rico. He was treated at the University Hospital in Puerto Rico as an emergency case. He was flown back to England on British Caledonian Airways some fourteen days after the...