2011 B.C.J. No. 381
Determination of the scope of the contract and subcontract. In June 2005, one of the ferry service’s passenger and car ferries lost control and plowed into several boats and a marina before grounding. The ferry suffered some damage as did the other boats and the marina. Investigations revealed that the cause of the collision may have been a missing pin that should have been inserted in a castellated nut that connected a governor output level on the main engine with the fuel pump control rod for that engine. Prior to the collision, the ferry had undergone a midlife upgrade. The defendant, Vancouver Drydock Company, was the general contractor who contracted with the ferry service to perform some of the work on the ferry during the midlife upgrade. The contract contained a term, item 7300, which provided for a survey of all propulsion equipment pneumatic controls for the vessel’s main engines, as per the annual contract with the defendant Prime Mover Controls Inc. (“PMC”). PMG was subcontracted by Vancouver Drydock to do the work under item 7300. Prior to the midlife upgrade, PMC conducted service and an annual inspection of the ferry’s control systems. Historically, the scope of PMC’s annual work involved checking the performance of the system and serving or replacing worn valves and other parts. After the collision, the ferry service commenced a claim against both Vancouver Drydock and PMC, claiming that Vancouver Drydock was in breach of its contract with the ferry service. The ferry service also claimed that PMC was negligent. The parties agreed that the trial would take place in two stages, with a determination of where the scope of item 7300 in the contract included a survey for the presence of a castellated nut and pin at the connection between the governor output and the fuel rack connection in the main engine and whether the scope of Vancouver Drydock’s subcontract with PMC required a survey for the same purpose.
The scope of item 7300 of the contract between the ferry service and Vancouver Drydock did not include a survey for the presence of a castellated nut and locking pin in the governor output lever where it connected to the fuel rack for the main engine. Neither the language of item 7300 or, if it was considered ambiguous, any extrinsic evidence, including the parties’ conduct, suggested that item 7300 required Vancouver Drydock to service or survey the governor linkage.