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Old 02-01-2019, 12:35 PM   #41
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Crusty you and RT are such pot stirers!!!
You didnít mind loaning me that big stirring stick.
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Old 02-01-2019, 02:02 PM   #42
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I actually had an advertisement in my Facebook feed that directed me to https://nordhavnfacts.com/ and had an embedded fancy video. Sent me along to the original video listed at the top of this post. Looks like around October 2018 someone (!) created the site & Facebook page, etc.
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Old 02-01-2019, 03:00 PM   #43
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I'd like to see you argue that in court. "Your honor, we just couldn't perform, we had no chance, don't blame us, the other party was just a great negotiator."


According to your logic, Nordhavn should have lost? I mean they agreed to do something they didn't do, or maybe you presume to know too much?
Actually contracts like that come up all the time. There are issues regarding reasonable expectations. Clauses that either weren't considered by the court to be reasonable or weren't considered essential get tossed or ignored. In this case, a jury had the opportunity to do some of that. All those "like Westport" clauses fit that situation.

In contract law cases, juries often reach conclusions based on who they think was most reasonable and what they believe about motivation. In this case you had someone attempting to avoid taxes, not giving the seller opportunity to correct any problems, and it would seem not representing himself well in court. I think Conconi probably came across poorly in court or at least would have won something, but wasn't a sympathetic plaintiff.

Juries aren't great fans sometimes of legalese and often sway toward what they see as right and wrong, reasonable and not.

One great example is all the contracts that say "Time is of the Essence." Does that make it so? And if time isn't met? What? What was the loss?

Boat delivered late, then what are the damages? Perhaps if one then chartered and you can prove the excess of that cost over had you had your boat. Often however it's simply loss of use and no value has been assigned. By not having it to use, you actually saved money though.

This is why well written contracts spell out agreed liquidated damages for being late as otherwise it's very difficult to define them.
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Old 02-01-2019, 03:55 PM   #44
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Uh, okay. Would like to know what wasn't considerable a reasonable expectation in a build contract. Think your conflating two very different worlds here.
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Old 02-01-2019, 04:16 PM   #45
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Uh, okay. Would like to know what wasn't considerable a reasonable expectation in a build contract. Think your conflating two very different worlds here.
I'm simply reflecting the findings of the jury.

None of the clauses with "like Westport" or "Equal to Westport" were reasonable as bases for evaluation. Holding Nordhavn responsible for his tax situation wasn't reasonable and wasn't part of the contract but was part of the litigation. Not allowing them a chance to correct the issues, even though the boat was already quite late, was not reasonable. Some of the issues were then not "ripe" yet, they had not been shown that they couldn't and wouldn't be fixed. Had he waited and given them time and they still not fixed the issues and then he had to pay someone else to fix them, then he might have had a recoverable loss.

The boat was late but that wasn't considered a material breach of the contract as nowhere in the contract did it show what the penalty or remedy for being late was. There was nothing in the contract that gave him the right to just not pay the balance.
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Old 02-01-2019, 04:24 PM   #46
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Yeah, I don't' know haven't read the findings.


You said they got Nordhavn to agree to a contract that they had no chance of fulfilling, what does that even mean? All the other you listed is only referring to performing on the contract. I don't know who's right or wrong but come on you can't just go spouting off things like that with no proof or insight into the issue.
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Old 02-01-2019, 04:51 PM   #47
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Yeah, I don't' know haven't read the findings.


You said they got Nordhavn to agree to a contract that they had no chance of fulfilling, what does that even mean? All the other you listed is only referring to performing on the contract. I don't know who's right or wrong but come on you can't just go spouting off things like that with no proof or insight into the issue.
Have you read the contract? If you had you'd understand. The biggest issue with it is they got Nordhavn to agree to "Westport" terms. Two very different boats, very different companies. Nordhavn can't build a Westport and Westport wouldn't agree to build a Nordhavn. There was also no possibility Nordhavn would deliver in time. I'd have to go back and read again to point out all the things, but Nordhavn admitted openly to not paying attention to many of them during the build.

I have plenty of insight into exactly what took place including Nordhavn and Conconi walking onto Westport boats to observe and then back to negotiations. Some of the elements of production and timing that are achieved by Westport are not by other builders. Their schedules are precise. But then they're also building boats they've built many of before. They don't offer the same on a brand new model. They didn't schedule their first 125 like they do 130's and 112's. They've got a new model they're working on but they haven't committed a finish date to anyone on it. Nordhavn has a good carpentry shop and can do good work, but it's not the same as Westport's in Port Angeles. Westport finishes everything up front, no commissioning process, but they don't bring the boat to the PNW from China either. Nordhavn had to get things done in Asia they don't normally.

I read the surveys. I think there were legitimate issues and reasons to complain. How long it would have taken Nordhavn to correct them all, I have no idea, but don't think it would have been quick. However, as a previous Nordhavn purchaser, the buyer knew that the first year is spent on a lot of fixes. No reason to expect that all to suddenly change. If it takes you 6 months to get everything worked out on a 50' boat, then how long should one expect you'll take on a 120' boat? Meanwhile, Westport delivers a boat that's fully read to go to the customer. Westport also doesn't offer all the flexibility on equipment that Nordhavn does. Take the hundreds of boats they've built and you'll only find one brand of generator, one brand of watermaker, one brand of crane, and for the most part with a couple of recent changes, one brand of engine.
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Old 02-01-2019, 05:46 PM   #48
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..Juries aren't great fans sometimes of legalese and often sway toward what they see as right and wrong, reasonable and not....
Illustrated by the story(true or untrue) of a rural jury, notoriously sympathetic, hearing a sheep rustling case:
Finding 1: Not guilty but he has to give back the sheep.
Directed by an exasperated Judge to reconsider
Finding 2: Guilty but he can keep the sheep.


As I read it, Nordhaven either did the deal or went under, it was sheer desperation.
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Old 02-02-2019, 01:17 AM   #49
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It's always such a shame to see a fight, especially beteween a boat builer and customer.

In cases like this, no one ever really wins. It's not just about costs, but reputation, respect and so on. How does one put a value on these aspects?

When i took delivery of our new Fleming 55 in 2003, there were a total of 206 snags, which Fleming carefully worked their way through over two years to success.

Was I upset? On the one hand, no, because the European agent took ownership of all of them through to closure. Yes, it was sad that such a fine vessel had so many faults, but they were cleared up.

To my mind, it's all about custoiemr service. But again, I say, PAE must have had great reason to let it go to court.
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Old 02-02-2019, 02:51 PM   #50
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To my mind, it's all about custoiemr service. But again, I say, PAE must have had great reason to let it go to court.
PAE had one reason only to go to court. They wanted the rest of their money. They got it too. They simply weren't willing to walk away without it.
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Old 02-02-2019, 06:44 PM   #51
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PAE had one reason only to go to court. They wanted the rest of their money. They got it too. They simply weren't willing to walk away without it.
$ Money is a great motivator, as(ex PM) Paul Keating said"Always back self interest, at least you know it`s trying". Reading about this I suspect PAE became "personally involved" and it wasn`t purely about the $. Though if there wasn`t a $ in it, I doubt they`d have bothered.
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Old 02-02-2019, 08:33 PM   #52
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$ Money is a great motivator, as(ex PM) Paul Keating said"Always back self interest, at least you know it`s trying". Reading about this I suspect PAE became "personally involved" and it wasn`t purely about the $. Though if there wasn`t a $ in it, I doubt they`d have bothered.
I'm sure you're right and I'm sure they were happy to get the money and happy to win. I'm sure some of them were attacked hard in court, just following the flavor of the deposition and understanding the case. Had to be painful and I'm sure they hope never to repeat it.
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Old 02-03-2019, 07:27 PM   #53
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Part of what I do is an excavation business. The general contracts never want to tell the customer no we canít deliver in that time frame. The sign a contract that requires everything to go perfect (weather, scheduling, etc) for them to make it. Then they ride the subs to work all over top of each other, on weekends to include sundays. It wonít stop till some of these GCís get burnt. I understand PAEís financial situation drove the decision and I understand that. What Shrew said was very prescient. The customer in not always right and sometimes you dont want their work.
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