Claim No. SCCH 252908
Date:20060123
IN THE SMALL CLAIMS COURT OF NOVA SCOTIA
Cite as: Nova Hydraulic Tool Ltd. v. EC Industries Ltd., 2006 NSSM 38
BETWEEN:
NOVA HYDRAULIC TOOL LIMITED
CLAIMANT
‑ and ‑
EC INDUSTRIES LIMITED
DEFENDANT
Counsel:
David G. Henley represented the Claimant
James D. MacNeil represented the Defendant
Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on January 3, 2007. This decision replaces the previously distributed decision.
DECISION
This matter came before the Small Claims Court at Halifax, Nova Scotia, on the 23rd day of November, A.D., 2005.
This Claim involves the non‑payment of an invoice for work completed by the Claimant for the Defendant.
The pleadings of the Claimant set out the occurrences of events. In July 2004 the Defendant and Claimant entered into a contract for the renewal of bearings and seals on the port and starboard winches located on the MV Sanderling. This work was completed and the Claimant was paid for its services.
In October the Defendant requested the Claimant to attend at the vessel to examine the port winch which was leaking oil. The Defendant entered into a contract with the Claimant to inspect and repair the problem on the portside winch.
The Claimant replaced the seals put on the winch back together and the Defendant reinstalled the winch on the vessel.
The winch suffered a major failure shortly after it was installed. The Claimant billed the Defendant $19,968.78 for work completed by it and the Defendant has refused to pay.
The pleadings of the Defendant state that the Claimant was negligent including in putting the winch back together on October 8, 2004 and that it owes the Claimant no amount due to its negligence.
In dealing with this matter I have also considered the notion that there was a breach of contract by the Claimant as well as whether the work was completed in a workmanlike manner.
The Facts
1. The Claimant was contacted in July to look at winches on its vessel and to give an estimate for repairs.
2. The port and starboard winches were ultimately delivered to the Claimant's shop and the Claimant disassemble the winches and ordered parts.
3. The bearing rollers were inspected and sealing and bearing kits for both winches were ordered.
4. New seals were put on the winches and they were reassembled and delivered back to the Defendant who reinstalled the winches on board the vessel.
5. In reassembling the winches the torque arms were put on incorrectly. The Defendant reassembled the arm and the Defendant was given a credit on its invoice.
6. Three weeks after the winches were worked on by the Claimant the Defendant contacted the Claimant to advise that oil or lubricant was leaking from the seal on the portside winch.
7. In October the oil was leaking considerably from the seal on the said winch and the Claimant agreed to fix the problem.
8. The Claimant advised the Defendant if a new seal was required it would be replaced at the Claimant's expense.
9. The Defendant removed the winch from the vessel and put it dockside with the motor side facing up.
10. The Claimant had the torque arm removed, the end cover removed and it was determined the seal was in perfect condition and the shaft was in good condition. The Claimant inspected the bearing and saw a few marks but determined there was no problem with the bearing. The Defendant representative was present at the time of inspection.
11. The Claimant changed the seal notwithstanding it determined it was not damaged and appeared in good condition.
12. The Claimant then reassembled the winch including the torque arm.
13. The torque arm was put on by using a piece of wood and a hammer, hammering on the wood to put the arm in place.
14. The Defendant reinstalled the winch on the vessel and it was tested and the Defendant accepted and signed off on the winch.
15. When the portside winch was examined after the "catastrophic failure, it was determined that the shaft was out of line with the bearing cover, the bearing was severely damaged and there was the resulting failure of the winch."
16. At the time the portside winch was first worked on by the Claimant the bearing had signs of some wear however not to the extent of the wear following the ultimate failure of the winch.
17. I found in this particular case the evidence of Mr. Patterson who worked on the winch on behalf of the Claimant, to be very clear and precise. While this exact winch model was not worked on before by the Claimant or Mr. Patterson they were familiar with similar types of winches. Mr. Patterson said he "found a broken bearing when we took the winch apart, the bearing came out through the seal and damaged the seal."
18. The winch when installed by the Defendant was not aligned properly when reinstalled which would cause the problem to happen again and resulting in a potential failure of the winch. Mr. Patterson advised the Defendant of this and it was aligned properly or it would be the same problem again. The Claimant did not notice how the winch was installed on the vessel the first time it was repaired.
There is no evidence to show that the Claimant caused the bearing to fail or the winch to fail after the winch was worked on the first time by the Claimant. The suggestion that when the Claimant put the covering and the torque arm on improperly and caused the problem is without support. Based on the testimony of the people who worked on the winch it leads to the only conclusion that the winch was assembled on the vessel by the Defendant improperly and was in fact misaligned. The alignment on the last assembly was correctly done with the assistance or suggestion of the Claimant and there has been no problem since.
The Claimant shall succeed in this claim. It is noted that the Claimant reduced its claim to $15,000.00 to fit within the jurisdiction of the Small Claims Court.
DATED at Halifax, this 23rd day of January, A.D., 2006.
______________________________
David T.R. Parker
Small Claims Court Adjudicator