Issue No. 2: Who is Responsible for Paying the Handling Fees? [161] In addressing this issue, here again the Court is required to turn to the terms of the contract in order to find the answer to this question. The oral evidence of the witnesses who testified on behalf of Devcon and Cap Juluca on this issue was very unhelpful. With the greatest of respect, in seeking to resolve this issue, it is immaterial or irrelevant as to who recommended that the brokers, Safe Cargo, be utilized in order to process the customs documents. It would have been helpful if both sides had presented evidence of the practice in the industry. No such evidence was presented. The written agreement has clearly spelt out that the contractor will not be responsible for any charges for importation customs duties, stamp taxes, local taxes or bond fees applicable to equipment, fuel and lubricants. It therefore calls for the Court to determine whether the handling fees properly fall within any of the above categories. Handling fees are typically referred to as brokerage fees. [162] It seems to me that charges for importation customs duties refer to official charges that are levied by the Customs Department of Anguilla as distinct from charges which are payable to brokers. In addition, the handling fees are not compulsory since, in the appropriate case, an importer is not obliged to incur these costs but can properly process the importation documentation on its own. Accordingly, I do not share the view that the handling fees were covered in the importation customs duties and are therefore payable by Cap Juluca. The handling fees are expenses that were not covered by the agreed letter of proposal. These fees are expenses which Devcon incurred and for which they are responsible. To put it another way, the handling fees cannot be properly categorized as charges for importation or customs duties. These are separate and distinct expenses from importation customs duties.
Issue No. 3: Whether the Arrival of the Barge at Maundays Bay was in Breach of Contract [163] In view of the Court’s findings of fact above that Devcon’s arrival at Maundays Bay beach was occasioned by a genuine miscommunication between the parties, the Court is of the view that this is no longer a live issue to be determined. By way of comment, the Court reiterates that the parties in their haste to have the beach replenished in the shortest possible time, failed to address their minds to the clearance of the equipment, fuel and lubrications. I do not accept that Devcon is solely responsible for its equipment and barge entering Maundays Bay beach. Both Devcon and Cap Juluca are responsible for the breaches of the law. There is no doubt that they both made the error of not discussing this aspect of the matter, even though DCK’s employees told Devcon that they could have arrived at Maundays Bay beach.
Issue No. 7: Whether Cap Juluca is Liable for the Damage that was caused to the Barge [175] I reiterate that the damage to the barge cannot be attributed in any way to Cap Juluca. The Court believes Cap Juluca’s witness who says that they did not encourage Devcon to work the barge after it had already broken its first spud. Devcon was obviously well-intentioned and the Court accepts as true that given the efforts that they had put into mobilizing to commence the replenishment of the beach, coupled with the fast approaching date of the reopening of Cap Juluca, Devon wanted to assist and fulfill its obligations to Cap Juluca. It is appropriate for me to state that it was quite unwise for the Devcon’s officials to have continued to work, thereby damaging the spuds further. The Court must hasten to add that all of this may well have been done with the best intentions in the world and, in any event, the service after the barge was damaged was never rejected by Cap Juluca. [176] In the circumstances, there is no way in which Cap Juluca could be held responsible or liable for the damage which the barge sustained. Devcon must therefore bear the loss occasioned by the damage to the barge, exclusively. [177] In view of the totality of circumstances, the Court is not of the view that Cap Juluca is liable to pay any monies that Devcon has expended in repairing the barge. Neither is Devcon entitled to be compensated by Cap Juluca for any loss of revenue that Devcon may have suffered.
Issue No. 11: “Whether the merger results in a concentration of market power.” Applicants have offered testimony that such an issue is not pertinent to a transaction of this type. ORA and Signatory Intervenors agree to support a finding that this issue is not applicable.
Issue No. 2: The Adjudicator(s) decide(s) that [give decision, refer to the reasoning provided under the above Section relating to Issue no. 2 and indicate the % of success/failure of the referring Party and the responding Party.]
Issue No. Description Date Published Initial BOH Review (Segments A/B — Floor 1) Initial Guestroom Review (Segment C — Floors 11 & 12) (Segment D — Floor 3) Completion Review No. 1 (Segment C — Floors 7-10) Floors 1 & 7-12 include MEP comments Initial Guestroom Review (Segment D — Floor 4) 8 Punch List 8 10/5/2007 Initial BOH Review (Segments A/B — Floor 1) Initial Guestroom Review (Segment D — Floors 5-7) 9 Punch List 9 10/12/2007 Initial Guestroom Review (Segment A — Floors 3 & 4) Initial BOH Review (Segment A/B — Floor 1) Floor 1 includes MEP comments 10 Punch List 10 10/19/2007 Initial BOH Review (Segments A / B — Floor 1) Initial Guestroom Review (Segment B — Floor 3) (Segments A/B — Floors 4 & 5) (Segment A — Floor 6) Floor 1 includes MEP comments 11 Punch List 11 10/26/2007 Initial BOH Review (Segment B — Floor 1) Initial Guestroom Review (Segments A / B — Floors 5-7) 12 Punch List 12 11/2/2007 Initial BOH Review (Segment B — Floor 1) Initial Guestroom Review (Segments A / B — Floors 7 & 8) 13 Punch List 13 11/9/2007 Initial Guestroom Review (Segments A / B — Floors 8 & 9) 14 Punch List 14 11/16/2007 6 of 29
Issue No. Description Date Published Initial Review with MEP comments Xxxxx 00 — Convention Services (Floor 01) 1 Punch List 1 10/2/2007 Initial Review Xxxxx 00 — Xxxxxxxxxx Xxxx (Xxxxx 00) Level 61 — Kitchen / BOH (Floor 01) 2 Punch List 2 10/9/2007 Completion Review Xx. 0 Xxxxx 00 — Convention Services (Floor 01) 3 Punch List 3 10/16/2007 Initial Review Xxxxx 00 — BOH (Floor 00) Initial Review with MEP comments Xxxxx 00 — XXX (Xxxxx 00) 0 Xxxxx List 4 10/19/2007 Initial Review Xxxxx 00 — BOH (Floor 00) Initial Review with MEP comments Xxxxx 00 — XXX (Xxxxx 00) 0 Xxxxx List 5 11/09/2007 Initial Review with Cini-Little Comments Xxxxx 00 — Room Service Kitchen & Employee Servery Kitchen (Floor 01) 6 Punch List 6 12/07/2007 Completion Review Xx. 0 Xxxxx 00 — BOH (Floor 00) 7 Punch List 7 12/21/2007 Initial Review Xxxxx 00 — Xxxxx xx Xxxxx (Xxxxx 00) Level 78 — Engineering Offices (Floor 02) 8 Punch List 8 01/07/2008 9 Initial Review Xxxxx 00 — Xxxxxxxxxx Xxxx (Xxxxx 00) Level 78 — Ballrooms & Meeting Rooms (Floor 02) Punch List 9 01/28/2008 Initial Review Xxxxx 00 — Prefunction Areas (Floor 00) Level 78 — Kitchen Areas (Floor 02) 10 Punch List 10 02/15/2008 12 of 29
Issue No. Description Date Published Initial Site Review (Site — Convention Center) (Site — Hotel) (Site — Site) 1 Punch List 1 5/22/2008 Signage
Issue No. Description [TO BE FURNISHED] Date Published Initial Signage and Graphics Review (Site — Convention Center) (Site — Hotel) (Site — Site) 1 Punch List 1 7/18/08 AV Issue No. Description [TO BE FURNISHED] Date Published 4/15 &16/08, Lighting & 6/2/08 Initial AV and Technical Lighting Review E-mail update; (Site — Convention Center) 2/18/08 Audio-Video (Site — Hotel) Systems; and (Site — Site) 2/12/08 Stage 1 Punch List 1 Rigging Kitchen
Issue No. Description Date Published Initial Architect’s Deficiency Review Log # 4, dated (Site — Convention Center) 9/22/08 with a (Site — Hotel) supplement that is 1 Punch List 1 be furnished] Exterior
