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Old 06-08-2008
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Marina Lawsuit/ Looking for help;advise

I recently was served with lawsuit for partial non payment for work performed by Doral Marine Resort, in Midland Ontario. Last May I lost the engine in my Dufour 39 and needed a replacement. I contacted Doral, and they said they had an engine in stock, the new Yanmar 4JH4AE, and they could complete the work in 7-10 days. Two months later I got the boat. On my maiden voyage across Georgian Bay I tried to use the engine. At any RPM above 1000 the vibration threatened to shake the boat apart. Out of sight of land, no wind, rookie crew, no fun. When we finally arrived at land, not our final destination, as we did not have the speed nessesary to reach, I called the marina to let them know the situation. Take it to your marina and have them check it. When we did, we found the engine had not been aligned, they forgot, the boat had not been water tested, they missed this step. At this point I held back 20% of the total bill, but paid for 80%, enough to cover all the parts, and the actual labour costs. Alignment only helped a bit, so at the end of the season Doral had my marina drop the rudder and pull the shaft. Turns out the shaft was bent, in the centre. This by the way was a brand new shaft with less than an hour of running time. Great I though, they found the problem, in addition to not doing all the other things normally associated with installing a new engine, they bent the new shaft. Fix it, install it, and we are good to go. Not so fast. Shaft sat at the repair shop, all winter. When I found out I called to complain, we are in April, sailing starts in May what are you guys doing. At this point Doral had the shaft repaired, took possesion of my shaft and Maxi-Prop propeller, and held them for randsom. Give us our money, or you are not getting your shaft and prop back. It is now June 7, boat is sitting on the hard, no shaft or prop. In an effort to salvage this season I have ordered a new shaft and prop
My question to all you impartial members out there is this. Does this seem fair?, has anyone had any experience with this company?, do I have a case for countersuit?, or am I just an ornary person getting what I deserve. Thanks in advance for you imput
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Old 06-08-2008
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Quote:
Originally Posted by Lawson911 View Post
I recently was served with lawsuit for partial non payment for work performed by Doral Marine Resort, in Midland Ontario. Last May I lost the engine in my Dufour 39 and needed a replacement. I contacted Doral, and they said they had an engine in stock, the new Yanmar 4JH4AE, and they could complete the work in 7-10 days. Two months later I got the boat. On my maiden voyage across Georgian Bay I tried to use the engine. At any RPM above 1000 the vibration threatened to shake the boat apart. Out of sight of land, no wind, rookie crew, no fun. When we finally arrived at land, not our final destination, as we did not have the speed nessesary to reach, I called the marina to let them know the situation. Take it to your marina and have them check it. When we did, we found the engine had not been aligned, they forgot, the boat had not been water tested, they missed this step. At this point I held back 20% of the total bill, but paid for 80%, enough to cover all the parts, and the actual labour costs. Alignment only helped a bit, so at the end of the season Doral had my marina drop the rudder and pull the shaft. Turns out the shaft was bent, in the centre. This by the way was a brand new shaft with less than an hour of running time. Great I though, they found the problem, in addition to not doing all the other things normally associated with installing a new engine, they bent the new shaft. Fix it, install it, and we are good to go. Not so fast. Shaft sat at the repair shop, all winter. When I found out I called to complain, we are in April, sailing starts in May what are you guys doing. At this point Doral had the shaft repaired, took possesion of my shaft and Maxi-Prop propeller, and held them for randsom. Give us our money, or you are not getting your shaft and prop back. It is now June 7, boat is sitting on the hard, no shaft or prop. In an effort to salvage this season I have ordered a new shaft and prop
My question to all you impartial members out there is this. Does this seem fair?, has anyone had any experience with this company?, do I have a case for countersuit?, or am I just an ornary person getting what I deserve. Thanks in advance for you imput

Doesn't sound fair to me at all.
I would certainly think that you have grounds for a counter suit. Unfortunately, unless you are talking small claims court, you will probably have to get a lawyer involved and that may cost more than it's worth.

I just have one question. Why wasn't the vibration noticed upon receipt of the boat after the installation?
I would think that after having a new engine installed you would have put it though it's paces before heading out of sight of land.

Anyway, Sounds like a bummer and I hope you get it resolved soon. Good Luck.

Steve


Oh, and welcome. Looks like your first post here.

Last edited by knothead; 06-08-2008 at 08:43 AM.
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Old 06-08-2008
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Well, another company to put on a blacklist. I am not around those parts, but those that are may want to avoid doing business with them. Sounds like a typical bad marine service outfit - careless, greedy and does not own up to their mistakes.

Did they actually serve you with a lawsuit? Is it a small claims court or a real lawusuit in a circuit court? (If it is a real court, they have to spend for a lawyer, which probably isn't too cost effective for them - I don't know what 20% of the cost of this engine is, but it's hard to imagine that being more than say $5K and lawyer would cost them at least half that much). I think barring actual damages you may have hard time having a claim against them (i am not a lawyer of course, so this is advice only based on my past experience talking to lawyers and small claims). That said, small claim won't cost you much. If you can document the problems and issues you've had and what it cost to remedy them, it may be worth while to make a claim. At a very least you'll have something to use to bargain with them.
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Old 06-08-2008
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Lawson:

First welcom to Sailnet

I have had very similar dealings in my life...and one thing I have learned is the courts will generally go against the consumer and side with the service provider....Not that they want to ...but due to the fact that we as consumers do not document and or go through the detailed steps needed to protect ourselves....\

Have you ever dealt with an Asian in any transaction....They are born buisness people and ask , test , verify, record and document every detail of a transaction, contract or whatever...We Anglo Saxons ( presuming you are one) are plain gullible because we innately trust people especially so called professional people....And we get stung because of that trust...

Unfortunately....your failure to have the yard sea test their work with you aboard befor you took possession...to a court IS acceptance of their work and for all the court knows you hit a log or damaged it yourself....You see where I going with this? Even if the Judge believes you over the company owner the law will side against you..

I am sorry to tell you this...but you will be wasting your time in court...You will be more effective bad mouthing the yard and steering other work away from them..

I have been in buisness 21 years...My go to court threshold is 10K if its less then that I deal with it in other ways..

Edit to add: The internet is a powerful and common tool any more.... and more and more people are checking out companies befor making major decisions of purchases, repairs ect...If you were able to post a blog ( is that the right term? ) about your experience ..That would come up if someone googled the yards name it would go a long way in them mending their ways..or at least give others a heads up to dot their I's and cross their T's with this particular co....Just be sure to be truthful..

Last edited by Stillraining; 06-08-2008 at 07:12 PM.
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Might help to see this from the other point of view ... as a business, collecting a debt, even threatening legal action for payment isn't as easy as it might seem ...

An inside look at debt collection
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Old 06-08-2008
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I believe you should consult with someone knowledgeable about Canadian law as there may be significant differences in your rights and the law than the advice you will get from most here.
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I believe you should consult with someone knowledgeable about Canadian law as there may be significant differences in your rights and the law than the advice you will get from most here.
After following Cam's advise I'd think that you actually have a very good chance of satisfaction if the small claims laws in Canada bear any resemblence to the US laws. I'd differ with Rainy in thinking that the customer usually has a leg up in a small claims court within my experience.

I also think that there is some type of legal precedence that states that payment in full is tantamount to acceptence of services. I'd think that the absence of full payment would actually strengthen your case in terms of showing you'd not signed off on the satisfactory completion of the work. but you need to follow Cam's advise above as we're just shooting in the dark here.
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Old 06-09-2008
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Sway could be right and nothing is set in stone...

This scenario just reminds me of a Judge Whopner verdict a Loooong time ago...

Some one was taking an auto repair shop to court....Whopner asked if the work had been preformed...."Yes" was the plaintiffs answer but "not" correctly....Whopner ruled in favor of the Auto repair shop....stating that a guarantee of good work is not the courts buisness...and told the plaintiff that he had no requirement to ever use the shop again....but the work was done so pay the shop...


I rest my case ....You be the judge as to what you should do
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If you google "Doral Marine Resort" right now, this thread comes up on the first page.
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It sounds to me like they have a case.

I assume they have a signed work order from you. You picked up the boat at the marina and sailed away. Sounds like you accepted the work as being complete to do that.

You didn't say if Doral was straightening the prop shaft at their cost or yours, or if they were paying any of the yard bill at your marina. You didn't mention any additional charges for this work so it sounds like they are trying to make good on the job. Let's face it, it would be very easy for them to say the other marina bent the shaft when they hauled your boat, but it doesn't sound like they're disputing this at all.

It's standard practice in every repair industry I've ever seen not to return property until the bill is paid. I think it's covered by Mechanic's Liens statutes pretty much everywhere. Personally I'm surprised you have the boat at all.

As for the delay in getting work done, did you call them every day after the promised dates and ask for the updated delivery date? If you didn't, I think it might be a challenge for you to convince a Judge you were suffering from loss of use of the boat. Doral could easily say you couldn't have suffered too much since you couldn't even be bothered to call them.

You can get info on Ontario Small Claims Courts at Ministry of the Attorney General - Small Claims Court The limit for suits is $10,000.

Bear in mind that the civil court system is different between Canada and the U.S. In Canada you can sue for punitive damages, but you will only get them if you prove malice. "Emotional distress" won't get you anything. You need to document actual damages, i.e., bring receipts to get any money. Also, Canada uses the "loser pays" system, so if you lose, you pay your lawyer and your opponent's lawyer.

So for a counter suit, I don't know what you could reasonably ask for.

I'd suggest talking to a lawyer about your options. I think it will come down to you're going to pay one way or another. Negotiating a deal with Doral will probably be the fastest, least stressful and cheapest way to get back to sailing.

If I might say, I'm also quite puzzled by this story. As skipper, you're totally responsible for the safety and security of your boat and (admittedly "rookie") crew. A new engine is major surgery on a boat. Presumably the forecast the day you headed out onto Georgian Bay called for light winds, and even if it didn't being becalmed is not an unreasonable expectation for a sailor. Why did you wait until you were in the middle of Georgian Bay to test the new engine? There are no end of stories of sailors getting into trouble because they were trying to sail according to a schedule instead of sailing when the equipment and weather was ready.

Anyway, good luck with this.

Tim
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