Aqua Marine Pty Ltd v The Ship "Condor of Bermuda"
[1999] QDC 46
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- Aqua Marine Pty Ltd v The Ship "Condor of Bermuda"[1999] QDC 46
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Aqua Marine Pty Ltd v The Ship "Condor of Bermuda"[1999] QDC 46
Aqua Marine Pty Ltd v The Ship "Condor of Bermuda"[1999] QDC 46
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | No. 5484 of 1997 |
BETWEEN:
AQUA MARINE PTY LTD (A.C.N. 010 695 628) of 7 John Lund Drive, Hope Island in the State of Queensland | Plaintiff |
AND:
THE SHIP “CONDOR OF BERMUDA” | First Defendant |
AND:
CONDOR YACHTS BERMUDA LTD of Hamilton, Bermuda | Second Defendant |
AND:
ROBERT ARTHUR BELL of Marainanga Station, Dannevinke, New Zealand | Third Defendant |
REASONS FOR JUDGMENT BOTTING DCJ
DELIVERED the 30th of March, 1999.
This action, which was commenced in the Supreme Court in its Admiralty jurisdiction,[1]was heard before me on 16th to 19thFebruary, 1999.
I propose first to outline the history of this dispute, focusing on the non-contentious matters.
The Condor of Bermuda is a 78 foot yacht built in 1977. Those who built her intended that she sail in the Whitbread Around the World Race. She has since participated in a number of other ocean and short course races, including, on a number of occasions, the Sydney to Hobart race.
According to its Entry of Appearance[2]the second defendant is, or was at least at the time the appearance was entered, the owner of the vessel. According to his Entry of Appearance[3]the third defendant was “entitled to possession and use of the ship, together with the defendant CONDOR YACHTS BERMUDA LTD.”
Mr. Bell gave evidence that he decided to enter the yacht in the 1994 Sydney to Hobart race. He said that the vessel needed a “bit of a spruce up,” and she was taken to the premises of Lloyd's Ships Pty. Ltd. where she was slipped. That company agreed to do work on her, principally sanding back the topsides to bare timber, bleaching and preparation to colour match the mahogany timbers, and then treat the surfaces with Everdure and finish off with “2 pack” varnish.
The work commenced at Lloyd's Ships Pty. Ltd.'s premises. Disputes arose between the third defendant and Lloyd's Ships Pty. Ltd., and work on the vessel ceased. After some monies were paid she was released to the third defendant. Mr. Hardie, general manager of Lloyd's Ships Pty. Ltd. at the relevant time, gave this evidence of the yacht's condition when she left his company's premises:
On the day that we stopped work on the vessel we had sanded it down to a raw state. We told Bob that unless he carried on with the next phase that the surface that we had prepared would deteriorate very quickly because work was being carried out on a slipway which was open to wind, rain and sunlight, the surface being raw mahogany timber. Bob after a period of approximately 10 days eventually had his crew put on a couple of coats of Everdure to protect it. This was before it left Lloyds. It then went back into the water and was driven to Hope Harbour. This was the last I saw of the vessel. With work like that you need to run the surface treatment progressively in the shortest possible time to get the best job. ....[4]
Whilst the vessel was at the premises of Lloyd's Ships Pty. Ltd. Mr. Bell commenced negotiations with Mr. Lund who was a director of the plaintiff. With one exception, I accept the following account given by Mr. Lund of these early discussions:
My first face to face contact with Bob Bell (“Bell”) was when he arrived at the premises of Aqua Marine one morning. I think the date was 15 November 1994. He came in and asked whether the spray booth would be available to paint his boat “Condor of Bermuda”. I asked him what the scope of the work would be. Bell said he wanted just a few coats of clear put on the vessel. He said that all the preparation work and everything had been done. He said he intended to bring the boat down on a certain date and he wanted to know, whether we would hire out the booth. I told him that Aqua Marine charged $400.00 per day for the booth. Bell then wanted to know about spraying the clear on the vessel. I said we didn't allow anyone to spray except our own people. He asked me what the rate was to do that work. I told him the spray rate was $45.00 per hour. I said the pure labour rate for preparation or any other work was $36.00 per hour. I recall that he said the boat was 70 foot long. He said the area to be painted from waterline to gunwhale was about one metre high. Before we got into detail, Mike Stacey walked in. I introduced him to Bell.[5]
There were further discussions between Mr. Lund and Mr. Bell, and as a result the yacht was brought to the plaintiff's premises on Saturday, 19th November, 1994. This was in fact a day later than had been arranged. The crew were, by the time the yacht was slipped, too tired to do any further work on her, and so they went away. It had been intended that they would work on the hull, preparing it for the plaintiff's staff to spray the top coats.
In any event the plaintiff's staff commenced working on the yacht. It is alleged that the work required to be done was in fact far more extensive than had been described by Mr. Bell, and it also alleged that extra work was requested, and extra expenses incurred, in the course of performing the agreed work. In their defence, the defendants assert that there were numerous deficiencies in the work done by the plaintiff.
Throughout the time that the vessel was being worked on Mr. Bell was in New Zealand. Stuart Watson, sometime skipper of the yacht, was present much of the time, and liaised with the plaintiff's employees. Facsimile messages were sent to Mr. Bell on 19th November, 1994[6]and 21st November, 1994[7]advising of some of the problems and reporting on the progress of the work. The second of these messages indicated that payment in full of the plaintiff's account would be required by 25th November, 1994, it then being anticipated that the vessel would be re-launched at 4 pm that day or the following morning. Mr. Bell responded to these on 22nd November, 1994, expressing some concern at the increase (as he alleged) of the booth hire, and suggesting it was unreasonable to charge him for booth hire if work could not progress because of inclement weather. This was responded to by two further facsimile messages from the plaintiff on 22nd November, 1994.[8]
There followed telephone conversations between Mr. Bell and Mr. Lund during which the former complained about the time taken to do the work and the costs of it. On 30th November, 1994 an account was sent to him (again by facsimile.) Prior to the accounts being sent Mr. Watson examined them thoroughly, and discussed them with Mr. Lund or Mr. Stacey.[9]As the account was not paid the plaintiff referred the matter to its solicitors on 1st December, 1994. On 1st December, 1994 Mr. Bell sent a facsimile message to the plaintiff, refusing to pay the amount then being sought by the plaintiff[10]The plaintiff refused to release the vessel. By a further facsimile message of 1st December, 1994 Mr. Bell protested at the plaintiff's refusal to release the Condor of Bermuda. She remained in the spray booth until 5th December, 1994. On that day she was removed from the booth and placed on a hardstand.
On 2ndDecember, 1994 the solicitors for the defendants[11]offered, on behalf of their client to pay, under protest, the amount of $12,535.38. The plaintiff's solicitor rejected that offer, advising that the first time the vessel could be re-launched was 3rd December, 1994, by which time the additional charges for the spray booth use were said to add a further $1,200.00 to the amount required by the plaintiff.
On 5th December, 1994 the solicitors for the defendants wrote inquiring how much was sought by the plaintiff to permit the release of the vessel.[12]The solicitors for the plaintiff responded the same day.[13]
Following this exchange there was then correspondence between the solicitors as to whether the plaintiff, in asserting a lien, was also maintaining a claim for storage. On 6th December, 1994 the solicitors for the defendant[14]demanded possession of the yacht, asserting that the lien claimed had been lost.
An action was then commenced in the Supreme Court by the second defendant to recover possession of the yacht.[15]I do not know how that action was resolved, other than there is evidence that the yacht was released from the plaintiff's possession and later competed in the Sydney to Hobart race in 1994. The plaintiff commenced an action against Mr. Bell in the Magistrate's Court at Southport, which led to a default judgment being entered against Mr. Bell on 7th July, 1995.[16]
On the same day, that is, 7th July, 1995 this action was commenced as I have said in the Admiralty jurisdiction of the Supreme Court. The vessel was named as defendant. In compliance with Rule 15 of the Rules, the writ named the second defendant as a “relevant person.” On the same day a warrant for the arrest of the Condor of Bermuda was executed.[17]On 13th July, 1995 Condor Yachts Bermuda Ltd gave notice of a payment into Court of $26,300.00 “to secure the release of the ship ‘Condor of Bermuda.’” The same entity filed an entry of appearance on 25thJuly, 1995, and in so doing asserted that its “relationship with the ship against which this proceeding has been commenced is as follows: It is the owner of the ship.”[18]
The statement of claim in this action was dated 3rd November, 1995. Following this Mr. Bell entered an appearance in the action.[19]In it he asserts that he has an interest in the vessel as “he was entitled to possession and use of the ship, together with the defendant CONDOR YACHTS BERMUDA LTD.”
The matter has been remitted to this Court. Mr. Savage of counsel appeared for the plaintiff, and Mr. Bland of counsel appeared for all defendants. There was, I was told, an attempt at a case appraisal, which did not proceed. In preparing for that, the plaintiff prepared statements by Messieurs Lund, Stacey, Watson, and Hardie, all of whom were called by the plaintiff before me, their statements having been tendered during Mr. Savage's opening. For the defendant evidence was given by Mr. Bell and an engineer and ship surveyor, Brian Harold Pettit. Parts of an affidavit by Mr. Russell, a solicitor of the firm Gadens Ridgeway, which acted for the plaintiff (i.e., the second defendant in this action) in the first Supreme Court action, were also put before me as part of the defendant's case.
So far as the witnesses for the plaintiff are concerned, I am satisfied that each did his honest best to tell the court accurately what he could remember of the various events which were canvassed before me. I was particularly impressed with the evidence of Mr. Stacey. He is no longer employed by the plaintiff - and I thought he spoke with considerable authority on matters relating to his particular calling.
I was not favourably impressed by Mr. Bell. He has had experience of litigation before - I cannot go as far as Mr. Savage suggested and find that he is “an experienced litigant” - but certainly court proceedings are not novel for him. He accused cross-examining counsel of lying, in circumstances which were quite inappropriate.[20]He regards Mr. Watson as a thief and a liar.[21]
He maintains that payment of proper debts is a matter of honour for him - and yet Mr. Pettit was not paid for his August, 1995 report on the state of the vessel until the morning he gave evidence.[22]At the end of his evidence, I doubted Mr. Bell's veracity.
Mr. Pettit is clearly an experienced ships surveyor, and there was, and could not be, any challenge to his integrity. However, I thought his evidence really did not advance matters much. I should say, that in so far as there may be any conflict between his opinion and that of Mr. Stacey relating to the application of paint and the like to vessels such as the Condor of Bermuda, I prefer Mr. Stacey's.
It should be clear from the above that in general terms I prefer the evidence of the plaintiff's witnesses to that of Mr. Bell. I do however find that Mr. Bell is correct in one matter that he asserted, namely that in his initial conversations with Mr. Lund he made some brief notes and correctly stated the length of the vessel at 78 feet. He is corroborated on this point by Mr. Stacey and by the document which is exhibit MSSI to Mr. Stacey's statement.[23]
I now turn to some of the more contentious issues.
The Terms of the Initial Agreement
In the amended statement of claim the plaintiff alleges that the plaintiff was engaged “to supply materials and carry out work upon and in relation to the Ship for reward.” Particulars of the agreement are alleged to be:[24]
- (i)the plaintiff was to lift the Ship from the water and relaunch the Ship after the work referred to below had been undertaken at the plaintiff's published rate of $8.00 per foot calculated by reference to the length of the Ship;
- (ii)the plaintiff was to paint the topside surfaces of the hull, in accordance with dimensions supplied by the defendant, to be an area of approximately one metre high by the length of the ship's two sides and transom, using paint supplied by the defendant and thinners and consumables supplied by the plaintiff at marked retail prices, on a “do and charge” basis at the following rates:
- (A)Spray labour: $75 per man hour
- (B)Spraybooth use: $400 per day
- (iii)the plaintiff was to supply antifoul paint at prices equivalent to those charged by Epiglass;
- (iv)the defendant was to prepare the topside surfaces of the hull so as to be ready for painting by the plaintiff on 18 November 1994;
- (v)the defendant was to deliver the Ship to the plaintiff's premises ready to be lifted from the water at 9.30 am on 18 November 1994;
- (vi)the defendant was to deliver adequate supplies of paint to enable the plaintiff to commence spray painting the topside surfaces of the hull on 18 November 1994 and to complete such spray painting by 20 November 1994 in readiness for the relaunching of the Ship on the evening of 21 November 1994
- (vii)the defendant was to mask and sand the topside surfaces of the hull using masking and sanding consumables supplied by the plaintiff, such work to be undertaken between each series of coats of paint sprayed to the topside surfaces by the plaintiff;
- (viii)the plaintiff was to make its spraybooth available for the purpose of painting the topside surfaces of the hull from Friday 18 November 1994 to Monday 21 November 1994 with a possible extension to 22 November 1994 if the plaintiff determined that additional time was needed for the adequate curing of the paint.
In paragraph 2 of the amended defence and counter-claim it is asserted that “the third defendant made the agreement referred to in paragraph 3 of the amended statement of claim in his own name.” This amounts, it seems to me, to an admission that the terms of the agreement were as alleged in the plaint, although there is, of course, an issue raised as to who the parties to the agreement were.
In any event, I certainly accept the evidence of Mr. Lund that he negotiated with Mr. Bell, and that the agreement struck between them incorporated all the matters set out above. I find that the terms of the initial agreement were as alleged in the amended plaint.
Was the initial agreement varied?
It is alleged in the plaint that the agreement was varied as a result of discussions had between Mr. Watson on behalf of the defendants and Mr. Stacey on behalf of the plaintiff. The particulars of the alleged variations are:[25]
Pursuant to the variations, the plaintiff agreed to carry out the following additional works upon and in relation to the Ship and to supply the/allowing materials:
- (i)prepare and paint the topside surfaces of the hull having dimensions of approximately two metres by the length of the Ship's two sides and transom;
- (ii)hire additional scaffolding and planks to undertake preparation and painting of the additional topside surfaces;
- (iii)spray a single coat of paint to the bulwarks and coachhouse;
- (iv)spray the boottop and cove lines;
- (v)arrange signwriting;
- (vi)supply for use by the defendant's crew two Rupes vacuum sanding modules complete with four vacuum sanders and supply of consumables as needed;
- (vii)supply for use by the defendant's crew of three compact air-operated wet orbital sanders and supply of consumables as needed;
- (viii)resand the hull;
- (ix)spray antifoul paint by airless spray to the Ship's hull and keel.
The second defendant's response to this allegation is to assert that Mr. Watson did not, as the plaintiff knew, have the authority of Condor Yachts Bermuda Ltd. to make any agreement of the kind alleged.[26]In so far as Mr. Bell is concerned, the allegations are not admitted.[27]
So far as the first particular is concerned, it seems to be common ground that the Condor of Bermuda has a freeboard of almost two metres - certainly more than the three feet which Mr. Bell initially described to Mr. Lund.[28]The agreement between the plaintiff and Mr. Bell was that the plaintiff would paint the topsides of the vessel. It seems to me that probably the first particular does not amount to a variation of the agreement but rather that it asserts a fact which, once ascertained, meant that the original estimates of the likely cost of performing the work were no longer accurate. Furthermore it meant that the plaintiff had to hire additional scaffolding and the like so that its employees (and also the crew of the vessel) could do the necessary work. I accept that these matters were discussed between Mr. Watson and Mr. Stacey, and that, at least as between them, it was accepted that the plaintiff was entitled to charge the costs of the extra equipment to one or other of the defendants - and that the labour rates etc. for doing the work on the hull which was more than three feet from the waterline would be the same as for the lower part of the vessel.
I am equally satisfied, accepting the evidence of Mr. Stacey (and, for that matter, Mr. Watson,) that the other matters pleaded were agreed to as between Mr. Stacey and Mr. Watson.
There were other factors which, I am satisfied, increased the cost of the plaintiff's performing its part of the agreement. The vessel was a day late in arriving at the plaintiff's premises. The crew were then too tired to work on her, and hence the start of the work was further delayed. The members of the crew varied in their experience and in their ability to do what was required of them so far as the work under review was concerned. Some thinners required by the plaintiff, and which were to be supplied by Mr. Bell, were not supplied. The plaintiff had to obtain them.
Did Mr. Watson have authority to negotiate and agree to the variations?
As I have mentioned, the evidence is that once Mr. Lund and Mr. Bell had reached their original agreement Mr. Bell left Australia for New Zealand. On the day the vessel arrived at the plaintiff's premises (Saturday, 19th November, 1994) a facsimile message was sent to him by Mr. Stacey, advising him, inter alia, of the need for extra scaffolding and of the extra time and expense that would be incurred because of the mis-statement as to the extent of the freeboard.[29]On at least three occasions Mr. Watson is referred to as making requests involving additional work, or additional expense, and the letter concludes with the statement, “Stuart and I will be discussing all matters concerning Condor prior to commencement of works on the morning of the 20th”. A further facsimile was sent on 21st November, 1994, and on 22nd November, 1994 Mr. Bell responded to these two messages. There is nothing said by him to suggest that Mr. Watson did not have his authority to discuss matters with the plaintiff's agents, nor to reach agreement with them in respect of matters which must necessarily increase the costs to Mr. Bell. On the contrary, Mr. Bell wrote, “Stuart will be on site to discuss progress with you.”
In many ways it seems to me that the allegation that Mr. Watson was the defendants' agent is probably superfluous, at least as far as Mr. Bell is concerned - because I am satisfied he knew of the “variations” as set out in the facsimile of 19th November, 1994 - and must be taken to have assented to them. One can deduce that from his conduct. But in any event, I find that Mr. Watson was, so far as the management of the vessel was concerned whilst it was at the plaintiff's premises, Mr. Bell's agent. That conclusion is, I think, inevitable.
The issue of Mr. Watson's relationship to the other defendant seems to me to depend on the findings that are made with respect to the relationship between Mr. Bell and the second defendant. In the circumstances of this case, if Mr. Bell, in entering into the initial contract with the plaintiff, was in fact the agent of the second defendant then, in my view, the second defendant would be bound by the arrangements entered into by Mr. Watson. If there is no agency between the second defendant and Mr. Bell then I can see no basis on which the former could be liable for the actions of Mr. Watson.
The Quality of the Work that was done.
I am satisfied that the plaintiff performed its obligations under the agreement (and the variations to it) in an unexceptionable way. In making that finding, I should say that I am largely influenced by Mr. Stacey's evidence. I have already stated that I was impressed by his evidence. The impression I was left with after his evidence was of a man who is a master of his trade.
Of course, Mr. Pettit is also a man who is highly qualified, and I do not doubt that the problems he identified when he examined the vessel in August, 1995 existed. But his evidence does not, to my mind, demonstrate any failure by the plaintiff's staff to do their work in anything other than a workmanlike manner. I suspect that some of the problems noticed by Mr. Pettit had their origin in the fact that the vessel was left exposed to the elements for some time at Lloyds Shipbuilding Pty. Ltd.'s premises, with coatings which should not have been exposed to the sun's rays for any long period. Other problems I am satisfied were almost certainly caused by the inexperienced work of some members of the vessel's crew. Still more problems have probably arisen because of the failure of Mr. Bell to provide sufficient materials to be applied to the vessel.
I find the matters alleged in paragraph 6 of the amended statement of claim proved. I am not satisfied as to the truth of the allegations made in sub-paragraph (b) of paragraph 3 of the defence and counter-claim.
The Plaintiff's Claim to a Lien.
As appears from the history I have given above work on the vessel was finished by 30th November, 1994. The dispute about payment had arisen, and the plaintiff claimed a lien over the vessel. The defendants pleads in respect of this matter:
10. Further, at all material times, the second defendant, together with the third defendant, was entitled to immediate possession of the ship.
11. On 5th December 1994, the second defendant demanded that the plaintiff deliver the ship up to it.
12. The plaintiff wrongfully refused to deliver up the ship to the second defendant until 16th December 1994.
PARTICULARS.
On 30th November 1994, the plaintiff refused to deliver up the ship unless the defendants paid the sum of $12,135.38 being an amount to which the plaintiff was not entitled by reason of the matters pleaded in the amended defence. Further, that amount included charges for the use of a telephone and advice which are incapable of supporting a lien as a matter of law.
Further, after the defendants offered to tender that amount to the plaintiff on 2nd December 1994, the plaintiff refused to deliver up the ship unless the defendants also paid holding charges of $400 per day, being amounts which are incapable of supporting a lien as a matter of law.
13. In consequence of the plaintiff's failure to deliver up the ship on 5th December 1994, the second defendant has suffered loss and damage.
PARTICULARS
Loss of income from sponsorship contracts with Optus, CUB and Gibson Freight which the second defendant was precluded from fulfilling.
I am satisfied that the charges made by the plaintiff relating to the slipping and work done on the Condor of Bermuda were appropriate. So far as the charges for the use of the spray booth are concerned, it is clear that the parties initially envisaged a comparatively short time for the vessel in the spray booth. For the reasons I have endeavoured to set out the time in the booth became extended, and then was further extended when the dispute arose between the parties. In his facsimile of 22nd November, 1994 Mr. Lund set out the basis for the spray booth charges, and there is nothing to suggest that Mr. Bell responded in writing objecting to the basis of charging for the use of the booth, or asserting that the charges were contrary to the agreement. It seems to me to be a reasonable inference from that that the parties understood that that was the basis of the plaintiff's charging for its spray booth from the time Mr. Bell and Mr. Lund concluded their initial discussions. In short, I am satisfied that the charges in respect of the spray booth were actually incurred in accordance with the agreement between Mr. Bell and Mr. Lund.
It is well established that a person who performs work on a vessel, and who has possession of her, may claim a possessory lien over the vessel to secure payment for his work.[30]In my view, the plaintiff's actions in refusing to release the yacht and in asserting a lien, were well founded.
The lien would end on payment of the monies due, or tender of that amount. I am satisfied that at no time did any of the defendants tender the proper amount prior to 16th December, 1994. Detailed invoices had been provided to Mr. Bell at least by 30th November, 1994, and it was open to Mr. Bell to calculate the amount properly payable, and to make tender of that amount - but that was not done. I am not able to find, on the evidence before me, that in fact the defendants' solicitors were ever put in sufficient funds to enable them to make proper tender. In the premises, the plaintiff's refusal to return the vessel to one or other of the defendants was, in my view, justified.
I should add that the pleading refers to the inclusion in the accounts of charges relating to telephone calls and obtaining advice. It is alleged that these cannot support a lien.
Invoices 2464 (for $70.40) and 2465 (for $3.95) appear to relate to 'phone calls made by Mr Watson and members of the crew of the yacht. Invoice 2475 includes an amount of $45.00 for “advising,” and invoice 2477 includes a further amount of $36.40 for 'phone calls, whilst invoice 2478 adds a further $49.30 for calls. I am by no means confident that these amounts are incapable of supporting a lien in the circumstances of this case - but assuming that they cannot, then it was open to the defendants, or one of them, to calculate how much was incorrectly charged and tender the balance - which, as I have said, was not done.
In the event that I should be held to be wrong in the findings and ruling I have just made I should deal with the issue of damages which might flow from any unlawful refusal of the plaintiff to hand over the vessel.
It is only the second defendant that asserts that it has suffered loss as a result of the failure to deliver the vessel on 5th December, 1994. That loss is said to be, “Loss of income from sponsorship contracts with Optus, CUB, and Gibson Freight which the second defendant was precluded from fulfilling.”
Mr. Watson gave evidence, which I accept, that he successfully negotiated a sponsorship with Telstra. He was involved in negotiations with Optus and Carlton and United Breweries, but they eventually declined to sponsor the vessel. He was unaware of any proposed sponsorship by Gibson Freight. Likewise, he was not made aware of any need, so far as any sponsors or potential sponsors of the vessel were concerned, for a need for the yacht to be in Sydney no later than 7th December, 1994.[31]
Mr. Bell said he had conversations with a Mr. John Gartner from Optus who “confirmed that he would - was doing the sponsorship.” The defendants did not call anyone from Optus or Carlton and United Breweries to say they were going sponsor the vessel, let alone that they decided not to because of her late arrival in Sydney.
In my view there is no evidence that I am prepared to accept which persuades me that either Optus or Carlton and United Breweries had, at any relevant time, a commitment to sponsor the yacht. Any claim to damages based on their alleged failure to proceed with such sponsorship must fail.
Mr Bell produced a written agreement between “Condor of Bermuda and Gibson Freight.”[32]The handwritten document is signed by Mr. Bell, with the words “Condor of Bermuda” written below his signature. Mr. Bell said that the other signature on the document was that of Mr. Gibson, the principal of Gibson Freight Pty. Ltd. The document appears to have been signed in Adelaide on 11th November, 1994.
In the agreement “Gibson Freight” agree to pay $50,000 to sponsor the yacht. It concludes: “Payment will be made in full by cheque payable to Robert A. Bell upon the arrival of the yacht in Sydney not later than 7/12/94.” Earlier it is provided that the yacht “will also be available in Sydney on or before 7/12/94 to perform Three Corporate Entertainment Days on Sydney Harbour prior to the said race.” Mr. Bell asserted that because the vessel was not in Sydney by 7th December, 1994 the value of this agreement was lost.
No one from Gibson Freight Pty. Ltd. was called to confirm the agreement. The principal of that company was said to be a Mr. Gibson, who was said by Mr. Bell to be very busy at the time of the trial - so much so that he (Mr. Bell) was not prepared to require his attendance to give evidence.
The document is not listed in the defendants' list of documents.[33]
I have already expressed my views on Mr. Bell's credibility. I am not, on the balance of probabilities, persuaded that, as of 7th December, 1994, there was any legally enforceable agreement between Gibson Freight (Australia) Pty. Ltd. and any of the defendants. I do not propose to speculate as to how Exhibit 10 came into existence, but I am not persuaded on the balance of probabilities that it was in existence at any time between 11th November, 1994 and the commencement of the Sydney to Hobart race in December, 1994.
In short, if I were to rule that the plaintiff had acted unlawfully in detaining the vessel, I would also have to rule that no loss or other damage had been proved to flow from such unlawful detention.
The Arrest of the Condor of Bermuda
The defence further pleads that the arrest of the yacht by the plaintiff was obtained “unreasonably and without good cause.”
At the time of the arrest the plaintiff had performed work on the vessel and was entitled to payment for that work and other associated charges. That money had remained unpaid for about seven months. When the Supreme Court proceedings were instituted to recover possession of the yacht from the plaintiff they were commenced by the second defendant, alleging it was the owner of the yacht.[34]No suggestion was made in the affidavit[35]prepared by the company's solicitor to suggest that Mr. Bell was not authorised to enter into the agreement for the work, or to suggest that the company would not be bound by such an agreement. In those circumstances, it seems to me that the plaintiff in this action acted entirely appropriately in obtaining the arrest of the yacht.
The claim here made is for damages pursuant to section 34 of the Admiralty Act 1988. That Act requires, as the third defendant's pleading obviously accepts, that damages will be allowed only if the arrest was unreasonable and “without good cause.” It is no doubt true to observe, as does Mr. Hetherington in his Annotated Admiralty Legislation,[36]that this section goes further than the former practice of the Admiralty Court, which would award damages only on proof of bad faith or gross negligence. It will be noted that the entitlement to damages does not arise simply on proof that the arrest was unlawful. In my view it cannot be said that the arrest of the yacht in the circumstances of this case were unreasonable or “without good cause.”
Particulars of the damages said to flow from the arrest of the vessel are:
- (a)Loss of use of the amount of $29,000.00 paid by the third defendant on behalf of the second defendant to procure the release of the ship;
- (b)Cost of alternative accommodation for the crew of the ship from 7th July 1995 to 13th July 1995;
- (c)Cost of remedial work which would have been performed by the crew of the ship but had to be deferred due to the arrest and which then had to be carried out by Brisbane Ship Lifts due to the limited time the vessel had to remain in Australian waters.
The first item of damages claimed appears to be for a loss of the type described in Hungerfords v. Walker.[37]There is no evidence which would enable me to quantify any such loss.
Counsel attempted to adduce evidence with respect to the second “head” of damages but was not able to place anything meaningful before the court.
Likewise there is no evidence that I am prepared to act on in support of the claim made in sub-paragraph (c).
Hence if, contrary to my finding, it is held that the arrest of the vessel was unreasonably or wrongfully obtained, I find that no damages have been shown to flow from such wrongful arrest. Indeed this discussion is probably otiose in the light of counsel's concession[38]that the defendants had not shown that any damage flowed from the alleged wrongful arrest.
Was Mr. Bell the agent of the Second Defendant?
Counsel for the defendants commenced his submissions to me by asserting that the plaintiff's case against the second defendant was dependant upon proof that Mr. Bell had “ostensible authority to act” on the second defendant's behalf. He submitted that this was not shown, and that hence the case against the second defendant must fail as the second defendant had not been shown to be a “relevant person” within the meaning of the Admiralty Act 1988.[39]From this, he submitted, it followed that the arrest of the vessel was unlawful, and that the monies paid into court to secure her release should now be paid out to the solicitors for the company. Counsel for the plaintiff pointed out, if this submission was accepted, it would leave the plaintiff with a judgment against Mr. Bell, who is a foreign national not living within Australia, nor having any assets within the jurisdiction.[40]
It is perhaps surprising that there is very little evidence before me relating to the personality of the second defendant. The following matters relating to the second defendant are alleged in the amended statement of claim, and admitted in the defence,[41]and hence I should take them to be established:
- (a)the name of the entity is “Condor Yachts Bermuda Ltd;”
- (b)it is a company, duly incorporated;
- (c)it is capable of being sued;
- (d)it entered an appearance to the writ in this action on 25th July, 1995;
- (e)at the time when the plaintiff's cause of action arose it was in possession or control of the yacht;
- (f)at the time of the commencement of the action it was in possession or control of the yacht;
- (g)at the time the plaintiff's cause of action arose it was the owner of the yacht;
- (h)at the time of the commencement of this action it was the owner of the yacht.[42]
It appears from exhibit 3 that it was the second defendant which paid monies into court to secure the release of the vessel. In his affidavit in the action brought by the second defendant[43]Mr. Russell, a solicitor of the Supreme Court, swears that he had been “duly authorised to swear this affidavit on behalf of the Plaintiff.” In the initial correspondence[44](exhibited to the affidavit) signed by him he uses the male personal pronoun when referring to his client. The last letter exhibited,[45]however, specifically refers to “our client, Condor Yachts Bermuda Ltd, the owner of the vessel,...” In my view, the inference is inescapable that Mr. Bell was the agent of the second defendant at least for the purpose of giving its solicitor instructions with respect to recovery of possession of the yacht.
Furthermore, it is clear that on the third defendant's case, Mr. Bell was the agent of the second defendant for the purpose of soliciting sponsorships for the yacht.[46]Indeed, according to exhibit 10 and to Mr. Bell he was also the agent of the second defendant for the purpose of receiving monies paid by sponsors of the yacht.
So one can be confident that indeed Mr. Bell was the agent of the second defendant. The issue would seem to be the more narrow one of whether the authority conferred on him by the second defendant included making contracts of the type made here.
It seems to me to be clear that when Mr. Lund and Mr. Bell discussed the work to be done by the plaintiff that Mr. Bell said and acted as if he were the owner of the vessel. There is nothing to suggest that at any time during these conversations he referred to the second defendant, or even to “the owner” as someone other than himself.
In the light of that finding, it seems to me that the plaintiff cannot succeed against the second defendant relying on the “doctrine” of ostensible or apparent authority. This is not a case where it can be asserted that Mr. Lund, because of things said or done by the second defendant, was lead into believing he was in fact contracting with the second defendant. As I have said, Mr. Lund thought he was contracting with Mr. Bell personally.[47]I should add, however, that there is nothing in the evidence to suggest that it was important to Mr. Lund (or the plaintiff) that the contract be with Mr. Bell personally.
The plaint simply alleges that Mr. Bell made the agreement “on behalf of the [second] defendant.” I take this to be an allegation that Mr. Bell was the agent of the second defendant, vested with the latter's authority to act on its behalf in respect of the matters which are relevant to this inquiry; or at least vested with such authority as would lead a court to infer that his authority in fact extended to making the agreement alleged here, even if that authority was not specifically bestowed upon Mr. Bell.
Whether Mr. Bell was the agent of the second defendant for the purpose of making agreements of the type made here on the second defendant's behalf is a matter of fact which can be proved, like any matter of fact, either by direct evidence, or by inference drawn from the facts which are established by direct evidence.
In general, no formality is necessary for the appointment of an agent to contract on behalf of his principal. Regardless of the terms used by the parties, if the facts fairly disclose that one party is acting for or representing another by the latter's authority the agency exists. The consent of both principal and agent is necessary to create an agency but the manifestation of assent of the respective parties thereto may be made in any way. The principal must intend that the agent shall act for him and the agent must intend to accept the authority and act on it; and the intention of the parties may be found either in words or conduct between them. ....[48]
There is no direct evidence here which establishes that there was such an agency as the plaintiff seeks to establish. I do not have, for example, sworn evidence from a director of the second defendant that Mr. Bell was given authority of the type canvassed, nor has a minute of a meeting of directors been put before me as proof of such authority.
Is there evidence which enables one to infer that Mr. Bell in fact had the authority of the second defendant to enter into the contract on its behalf, or at least had such actual authority from the second defendant as would lead a court to infer that the authority in fact bestowed must necessarily have included authority to enter into this contract?
Lest it should be thought that I may be under any misapprehension, I should state that clearly the onus is upon the plaintiff to persuade me, on the balance of probabilities, that there was such authority.
I have concluded that the inference which I should draw in this case is that the second defendant did confer on Mr. Bell actual authority to enter into contracts of the type made here on its behalf. I should set out the facts which lead me to this conclusion.
- 1.The fact, as I have already set out, that it is clear, and in fact conceded, that Mr. Bell was the second defendant's agent for the purpose of soliciting sponsorships. This is clearly a significant activity. Mr. Bell was also clearly the agent of the second defendant for the purpose of receiving monies paid by sponsors.
- 2.Clearly the work that was done was work which enhanced the appearance of the yacht and would thus, I think one can infer, make her a more attractive proposition to potential sponsors.
- 3.The second defendant, being a company, can only act by agents.
- 4.The nature of the vessel. The Condor of Bermuda, I infer, must have cost a considerable sum to build. The evidence in this case suggests that considerable sums must be periodically spent on her maintenance. She requires a crew when sailing - some of whom have been, on the evidence, paid for their work.
- 5.Mr. Bell has been associated with the vessel ever since she was built. She was built, he said, in 1977, and then raced for a number of years, and “then I retired her from racing and converted her into a private cruising yacht.”[49]
- 6.Mr. Bell appears to act as (at least de facto) master of the vessel when he is on board;
- 7.Mr. Bell has clearly represented to numerous people that he was the owner of the vessel. This has been the case for so long that it is impossible to sensibly imagine that the “guiding minds” of the second defendant, whoever they may be, were unaware of the situation. Illustrations of these representations are:
- (a)Mr. Watson, some time skipper of the yacht, has known Mr. Bell “since the beginning of the 1980's. He is the owner of the vessel ‘Condor of Bermuda;’” “Bell always paid the bills to a shore manager who in turn paid the crew and I.;”[50]
- (b)Mr. Bell referred to the yacht as “his boat” to Mr. Lund;[51]
- (c)Mr. Russell's references in his letter of 2nd December, 1994[52]to his client can only be understood as an assertion that he was receiving instructions from Mr. Bell, although a few days afterwards he refers to the second defendant as his client;
- 8.Mr. Bell clearly regarded himself for many years as at least the de facto owner of the yacht, and makes the important decisions with respect to the yacht..
- –“I retired her from racing and converted her into a private yacht;”[53]
- –He decided to enter the yacht in the 1994 Sydney to Hobart race;[54]
- –“... it was the 15th anniversary[55] and I decided it needed a little bit of a spruce up;”
- –He clearly encouraged Mr. Watson to seek sponsorships for the vessel;
- –He thought that Mr. Watson should account to him for his use of sponsorship monies; and when he did not, he “was never to touch foot on my boat;”[56]
- –with respect to exhibit 10 (about which I have already expressed my misgivings) he alleged that it was an “... agreement between me —;” - in fact the document refers to a sponsorship agreement between “Condor of Bermuda” and Gibson Freight;
- –He (eventually) paid Mr. Pettit - “I assumed my son had paid for it out of the boat account, or his own personal account which operates out of the boat account;”[57]
- –He was “responsible for paying the debts associated with running [the yacht];”[58]
- –He frequently pays those debts in cash, and often does not keep documentary evidence of such payments.[59]
These facts are, I think, capable of leading to the drawing of a number of inferences. From the above one might, in my view, reasonably infer any of the following:
- 1.That Mr. Bell was in fact the sole owner of the vessel;
- 2.That Mr. Bell was in fact a joint owner of the vessel (with the second defendant) and either had or did not have relevant authority to bind his co-owners;
- 3.That Mr. Bell was in fact a joint owner, and managing owner, of the vessel and hence had the relevant authority to bind the other owners;
- 4.That Mr. Bell was the purchaser of the vessel, the vendor not having been paid;
- 5.That Mr. Bell was the charterer of the vessel pursuant to a time charterparty;
- 6.That Mr. Bell was the charter of the vessel pursuant to a charterparty by demise;
- 7.That pursuant to some other type of agreement with the owner Mr. Bell has a license to use the vessel, apparently at his own whim; and may or may not, depending on the terms of the agreement, have relevant authority from the owner.
I do not suggest that this list is exhaustive.
I must confess that the inference which seems to me to be the most likely on the whole of the evidence placed before me, is the first. However, as the plaintiff alleges, and the defendant admits in its defence, that the second defendant is the owner of the vessel I do not think it possible to say that the first inference listed above is one which it would be permissible for me to draw in this case. I do not think the pleadings exclude, however, the drawing of the other inferences I have set out.
There are other facts which I think should be taken into account. They are:
- 9.In the proceedings by the second defendant to recover possession of the yacht it was not alleged, at least in the material from that action which was put before me, that the second defendant did not owe monies to the plaintiff. It was not alleged that Mr. Bell acted on his own behalf, and did not have the authority of the second defendant to act on its behalf. Rather the second defendant was offering to pay what it calculated as the true amount owed to the plaintiff for the work done;[60]
- 10.Mr. Bell asserts in his entry of appearance that he had an interest in the yacht in that “he was entitled to possession and use of the ship, together with the defendant CONDOR YACHTS BERMUDA LTD;”
- 11.Mr. Bell raised the monies that were paid into court to secure the release of the vessel;
- 12.The Notice of Payment into Court alleged that the second defendant had paid the monies into court;
- 13.In the counter-claim, it is alleged that as a result of the alleged failure of the plaintiff to perform its obligations under the agreement, Mr. Bell will be put to the expense of having the work completely re-done;
- 14.In the counter-claim it is alleged that as a result of the alleged unlawful refusal by the plaintiff to deliver the yacht the second defendant suffered damage, being the loss of income from sponsorship contracts;
- 15.In the counter-claim it is alleged that it was Mr. Bell who suffered loss as a result of the alleged unlawful arrest of the vessel.
Additionally, I should note the following further facts which I think are relevant to my consideration as to whether the inference of Mr. Bell's having the authority to make the contract should be drawn:
- 16.The second defendant and Mr. Bell have the same solicitor acting for them and appeared by the same counsel;
- 17.The defendants produced a list of documents on 12th August, 1996.[61]No documents are listed which relate to the second defendant's ownership of the vessel, which is understandable given the pleadings. However there is no document listed which in any way explains how Mr. Bell might assert a claim to possession and use of the vessel with the second defendant. Nor is there any document to explain how the second defendant treats the monies raised by Mr. Bell but paid into court by the second defendant.
- 18.Mr. Bell said he intended to pay with his credit card. But nothing has been discovered relating to that card. We do not know whether the account which it relates to is his personal account, or one with another person, or indeed an account conducted by the second defendant.
Finally, it will be apparent that the nature of the relationship between the vessel, Mr. Bell, and the second defendant, is a matter which is peculiarly within the knowledge of Mr. Bell and the second defendant. No credible explanation was offered by Mr. Bell of that relationship. Asprey J.A. summarised (in the context of an agency case) the position that thus pertains as follows:
There can be no doubt from the evidence to which I have referred above of the assent of Garlin to act as the agent of the Transport Company in the sale of the truck and I think it may also be reasonably inferred from the evidence to which I have referred that Laws, as the working director of the Transport Company, was aware of and assented to the activities of Garlin in negotiating the sale of its property to the plaintiff. In view of the fact that neither Garlin nor Lewis chose to give evidence in this case and also in view of the fact that the question of the appointment of Garlin by Laws as the Transport Company's agent to negotiate the sale of the truck to the plaintiff would be a matter peculiarly within the knowledge of those two men, the evidence which might have been contradicted by the defendants can be accepted the more readily; and, where an inference is open from facts proved by direct evidence and that evidence is disputed on behalf of the defendants, the circumstances of their failure to give evidence to rebut the drawing of the inference is properly to be taken into account as a circumstance in favour of drawing the inference and such failure on the part of the defendants may lead rationally to the inference that the evidence which they did not call would not help their case......[62]
It seems to me that the inference is almost inescapable that Mr. Bell, at all relevant times, was the agent of the second defendant, and had its authority to effect the maintenance work which was undertaken by the plaintiff. The most likely explanation seems to me to be that Mr. Bell was a managing co-owner of the yacht. His claim to be entitled to possession and use of the vessel “together with” the second defendant would seem to suggest that his relationship with the vessel and the second defendant is not governed by a charterparty by demise - and indeed, the absence of any relevant documents in the list seems to suggest that there is no charterparty of any kind in existence which governs the relationship of the defendants. I consider that the most probable explanation is, as I have said, that Mr. Bell is a managing co-owner of the yacht. Even if that were not the case, I think it abundantly clear that Mr. Bell was in fact the agent of the second defendant for the purpose of having repairs and maintenance work done on the vessel, and that at all relevant times to this action he was acting within the scope of his authority.
The plaintiff's claim in this case, being “a claim in respect of the alteration, repair, or equipping of a ship” and/or one “in respect of goods, materials or services ... supplied ... to a ship for its operation or maintenance” comes within the definition of a “general maritime claim” in the Admiralty Act 1988.[63]On his own case, Mr. Bell is a “relevant person”[64]within the meaning of that Act, as, on my findings, is the second defendant. Likewise, Mr. Bell was when the plaintiff's cause of action arose, on his own case, in possession or control of the yacht, as was the second defendant. As I have several times stated it is admitted that the second defendant was the owner of the vessel when these proceedings commenced, and I have found on the balance of probabilities that Mr. Bell also was an owner. In those circumstances, the plaintiff was entitled to do as it did, viz. commence an action in rem against the yacht.[65]
The findings I have made mean I do not have to consider Mr. Savage's interesting submissions that the second defendant was not shown to have the capacity to sue in this jurisdiction.[66]
The plaintiff is entitled to recover from the defendants[67]the sum claimed, $16,491.23. I propose to allow interest on that sum from 6th December, 1994 at the rate of ten per centum per annum. I round that off to $5,475.00. The counter-claims must be dismissed. Subject to any further submissions from counsel it seems to me that costs should follow the event, and that the defendants should pay the plaintiff's costs of the action (including its defence of the counter-claims) to be taxed.
As this matter was remitted from the Supreme Court, and as there were monies paid into that Court, I seek counsel's assistance in framing appropriate orders to reflect the conclusions and decisions I have made.
Footnotes
[1]Action No. 1213 of 1995.
[2] Exhibit 2.
[3] Exhibit 4.
[4] Paragraph 5 of Exhibit 9. Mr. Hardie was not challenged on this part of his evidence.
[5]Paragraph 2 of Exhibit 2.
[6]Exhibit GJL2 to the statement of Mr. Lund (Exhibit 6.)
[7]Exhibit GJL3 to the statement of Mr. Lund (Exhibit 6.)
[8]Exhibits GJL5 and GJL6 to the statement of Mr. Lund (Exhibit 6.)
[9]See paragraph 22 of Mr. Watson's statement, Exhibit 7, and paragraph 23 of Mr. Watson's statement, Exhibit 8.
[10] Exhibit GJL8 to the statement of Mr. Lund (Exhibit 6.)
[11]I use the phrase “the solicitors for the defendants” somewhat loosely here - see footnote number 14
[12]Exhibit G to the affidavit of Mr. Russell, Exhibit 13.
[13] Exhibit H to the affidavit of Mr. Russell, Exhibit 13.
[14]In this letter, (exhibit J to Mr. Russell's affidavit) the solicitors, for the first time, identify their client as “Condor Yachts of Bermuda Ltd, the owner of the vessel,” - previously they had used the male personal pronoun when referring to their client.
[15]No. 1961 of 1994.
[16]No. 275 of 1995, and see the transcript at page 14.
[17]See the affidavit of Mr. Adam, the Deputy Marshall - Exhibit 1.
[18]The entry of appearance is Exhibit 2.
[19] Exhibit 4.
[20]He did proffer an apology for his conduct on the following day - Transcript page 132.
[21]Transcript page 123.
[22]Transcript page 161.
[23]Exhibit 7.
[24] Paragraph 3 of the amended statement of claim.
[25]Amended plaint, sub-paragraph (b) of paragraph 5.
[26]See sub-paragraph (iii) of sub-paragraph (a) of paragraph 2 of the amended defence and counter-claim.
[27]See sub-paragraph (c) of paragraph 2 of the amended defence and counter-claim.
[28]As will be evident, I accept Mr. Lund's evidence on this issue. Indeed, bearing in mind the admission in paragraph 2 of the amended defence and counter-claim that the agreement “referred to in paragraph 3 of the amended statement of claim” was made by Mr. Bell, it is somewhat surprising that the defence consistently urged me to make a contrary finding. The pleaded agreement clearly alleges that the dimensions supplied by the defendant were “one metre high by the length of the ship's two sides.”
[29] Exhibit GJL2 to Mr. Lund's statement, Exhibit 6. It would appear to be document C.1. in the defendants' list of documents (Exhibit 12.)
[30]See the judgment of Phillimore J. in The Tergeste (1902 P. 26.)
[31]See the transcript at page 65.
[32]Exhibit 10.
[33] Exhibit 12.
[34]It seems to have been assumed by counsel that the Condor of Bermuda was a foreign vessel - i.e., not one registered in Australia. Similarly the assumption appears to have been made that the second defendant is a foreign corporation. Strictly speaking I do not think either matter was shown in the evidence. Save in respect of certain submissions made to me by counsel for the plaintiff with respect to the second defendant's capacity to sue within this jurisdiction it seems to me not to matter whether either of these supposed facts was proved.
[35]Or at least, so much of the affidavit as was put before me in these proceedings.
[36]The Law Book Company Limited, 1989. See page 79.
[37]1989 171 C.L.R. 125.
[38] Transcript, page 176.
[39] Commonwealth.
[40] It is true that Mr. Bell gave his address as being in New Zealand, and the evidence seems to suggest he is not ordinarily resident in Australia. However there is no evidence which shows he does not have assets within Australia.
[41]See paragraph 2 of the amended statement of claim, and paragraph 1 of the amended defence.
[42]The heading of this action includes the address as “Hamilton, Bermuda” which is clearly a reference to the capital city of the self-governing colony. However, as I understand it, the heading of the proceedings may not be used as evidence to establish the residence of the company. Surprisingly, the entry of appearance (exhibit 2) does not disclose an address for the second defendant.
[43] Exhibit 13. It should be remembered that counsel tendering the affidavit (counsel for the defendants in this action) did not tender paragraphs 2, 3, 4, 9, 16, 22, 23, 24, and 25 of the affidavit.
[44]Exhibit B.
[45]Exhibit J.
[46]See counsel's concession of this at page 171 of the transcript.
[47]See the discussion in Bowstead and Reynolds on Agency, Sweet & Maxwell, 16th ed., 1996, at 8-025.
[48]per Asprey, J.A., in Field v. Shoalhaven Transport Pty. Ltd. and Anor., [1970] 3 N.S.W.R. 96, 103. The other members of the court (Mason, J.A., (as he then was) and Moffitt J.A.,) agreed with His Honour on this point.
[49] Transcript, page 97.
[50]His statement, exhibit 8. See also his evidence at page 55, where the word “opener” is obviously a typographical error and should be “owner”
[51] Exhibit 6, paragraph 2.
[52]Exhibit B of Exhibit 13.
[53] Transcript, page 97.
[54]Ibid.
[55]“15th” is almost certainly a typographical error - the reference I am confident was to the fact that the approaching Sydney to Hobart yacht race was the fiftieth such race.
[56] Transcript, page 108.
[57] Transcript, page 110.
[58]Transcript, page 112.
[59]Transcript, page 131.
[60]See Mr. Russell's affidavit - Exhibit 13 (or so much of it as was tendered) and its various exhibits.
[61]Exhibit 12.
[62]Field v. Shoalhaven Transport Pty. Ltd. and Anor. [1970] 3 N.S.W.R. 96, 103.
[63] Section 4(3).
[64]i.e., a person who would be liable in respect of a maritime claim if sued in personam; see the definition of “relevant person” in section 3 of the Act.
[65] See section 17 of the Act.
[66]He referred me particularly to Nauru Local Government Council (Trading as Nauru Pacific Line) v. Australian Shipping Officers Association and Others (1978 27 A.L.R. 535 and to R. v. Cleary 1885 W.N.(N.S.W.) 114.
[67] Counsel for the defendants did not submit that in the event of my finding that the second defendant was an undisclosed principal that there could not be judgment against both defendants. In my view both the agent and undisclosed principal are liable on the contract. See Bowstead and Reynolds on Agency, Sweet & Maxwell, 16th ed., 1996, at 9-012.