North South Yacht Vacations Ltd v The Owners and Persons Interested in the Ship ‘‘Heartbeat’’
| Jurisdiction | British Virgin Islands |
| Judge | d'AUVERGNE, J. |
| Judgment Date | 28 December 2004 |
| Neutral Citation | VG 2004 HC 32 |
| Docket Number | SUIT NO. BVIHCV A5 OF 2000 |
| Court | High Court (British Virgin Islands) |
| Date | 28 December 2004 |
IN THE HIGH COURT OF JUSTICE (Civil)
SUIT NO. BVIHCV A5 OF 2000
Mr. John Carrington for the Claimant
Mr. Paul Dennis for the Defendants
The Claimant began this action by Writ of Summons in rem filed on the 8 th September 2000 for the sum of $35,237.28 and costs arising from the non-payment by the Defendants of alleged agreed shares of losses incurred for the management of the vessel ‘‘Heartbeat’’ during the period 1992 to 2000.
A warrant of arrest for the ‘‘Heartbeat’’ was filed by the Claimant on the same day of the filing of the writ and the vessel was arrested by the Admiralty Marshall on the 11 th September 2000. Later, bail was granted upon the Defendants' paying a sum of money into Court. Thereafter the matter proceeded by means of pleadings.
The Petition was filed on the 16 th February 2001 and the Defence, set off and counterclaim was filed on 26 th January 2001.
A perusal of the above noted dates of filing will show that the Defence was filed almost three weeks ahead of the date of the filing of the petition yet the Defence and counterclaim makes reference to the Petition.
Reply and Defence to Counterclaim was filed on the 23 nd of August 2002. There were many applications and adjournments and the matter was eventually heard on the 30 th January, 2004.
The ‘Heartbeat’ is a 44.5 ft center cockpit sloop-rigged sailing vessel owned by Len Akerberg and his wife of Kansas, U.S.A. However only Len Akerberg appeared as a Defendant. It is not disputed that the Claimant, a yacht management and charter company which carried on a business from Nanny Cay, Tortola, agreed with Defendant, Len Akerberg, to provide yacht management in respect of that ‘‘Heartbeat’’ in or about April 1992.
It is interesting to note that a Charter Management Agreement between the Claimant and the said Defendant is dated 4 th October 1992 but the commencement date was noted as 21 st day of April 1992.
An amicable relationship existed between the Claimant and that Defendant until the latter withdrew his yacht from the Claimant's fleet on 20 th July 2000 without giving him any notice.
Under the terms of the Agreement, the Claimant and the Defendant Len Akerberg were to share the looses of the vessel equally whereas they were entitled each to 40% of the net revenue (profit) on the vessel with the balance being payable to North South Vacation International Inc., an Ontario Corporation, that acted as booking agent for charters on the Claimant's fleet of vessels.
It is further not disputed that the Claimant furnished that Defendant with quarterly statements of the running account in respect of the vessel throughout the management period.
On June 16 th 2000 the Claimant wrote to the Defendant, Len Akerberg, informing him of the due balance of $27,651.46 and suggestions were made of how that balance should be paid and the said Defendant replied on the 6 th of July agreeing to the suggestions.
On the 20 th July 2000 Defendant Len Akerberg removed the ‘Heartbeat’ from the Claimant's fleet thereby incurring an additional loss of $2,999.82 increasing the amount due to $30,651.28. Additionally, the Claimant claims that he incurred costs of $4,566.00 for removal of the ‘Heartbeat’ from Nanny Cay, the Claimant's dock to the US Virgin Islands and for moving previously booked charters to other boats as a consequence of the removal of the ‘Heartbeat’ and $20.00 for bank charges for a dishonoured cheque.
The Defendants' case is that the Claimant had failed to credit the ‘Heartbeat’ for revenue amounting to $226,139 throughout the relationship which amounted to a fundamental breach of the agreement.
Len Akerberg admits the Agreement of 1992 and that he removed the ‘Heartbeat’ on the 20 th July 2000 from the Claimant's fleet without notice. He further admits his failure to pay the accrued loss on the ‘Heartbeat’ of $30,651.28. He does not deny the $20.00 claim for bank charges but does not admit the additional claim of $4,066.
The Defendants counterclaim for one half (1/2) of the revenue of $226,139 which they claim have not been attributed to the ‘Heartbeat’. Len Akerberg insists that the parties had agreed to split the revenue from the boat equally.
The Defendants further claim the return or value of a 135% headsail and dinghy and motor valued at $5,600 and $4,642 respectively which they allege that the claimant has wrongfully retained.
Finally, the Defendants claim compensation for lost charter revenue amounting to $14,330.00, dockage charges incurred by the ‘Heartbeat’ white under arrest in the sum of $1,735.00, damages to anchor line of vessel upon its arrest and removal from Paraquita Bay to Nanny Cay in the sum of $615.00.
The Defendants counterclaim for the total sum of $139,991.50 with interest and seeks to set off the said sum of $139,991.50 against the amount claimed by the Claimant.
At the trial Brian Rose was the only witness for the Claimant. He told the Court that he was general manager and president of North South Company. He owned the yachts in his personal capacity. Many documents were put into evidence, e.g. quarterly statement reports, spread sheets and lists of charter names for the period stating the number of days and the names of the vessels which were chartered out.
Terry Turl gave evidence on behalf of the Defendants. He told the Court that he acted as general manager of the Claimant between 1989 and 2000. That his duties involved general managerial functions including monitoring of boat usage and maintenance billing. That he knew the vessel ‘Heartbeat’ owned by Len Akerberg was in charter with the Claimant Company from April 1992 to July 2000.
He described the system for recording and documenting charters for each vessel. He said that it was always possible to determine the number of charters of each vessel in any given year with reference to the relevant day sheets for that vessel.
Turl told the Court that the ‘Heartbeat’ was not credited for some charters and despite the evidence given by Brian Rose there was never a promotional charter booked or taken on ‘Heartbeat’. He emphasized that he had full responsibility and accountability.
He said that Brian Rose was always based in Toronto. He denied that the eleven (11) promotional charters and the thirty-two (32) instances of ‘Heartbeat’ charters which Rose claimed belonged to other charter vessels.
Turl further told the Court that the reason why he never made an issue of the wrong quarterly statements was because he was part of the company but he was aware that they were incorrect and that sometime after he left the company on the 12 th July 2000 he was approached by Lon...
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