Mario Bros. Construction v. Pisa - By Martin Ceresney

By Martin Ceresney

Turpi-Causa (Maestro): The trial of this action, based upon a Judgment of reference granted by The Honourable Mr. Justice Al E. McBeal, was heard on November 5, 6, 7 and 8, 2001. The Plaintiff-general contractor sues for the unpaid balance of its account, under a direct contract with the Defendant. The Defendant-municipality, by its solicitors, vehemently objected to the trial proceeding at this time, arguing that the lien registered by the Plaintiff was out of time, it having been registered in 1998, whereas it is agreed that the construction was completed in 1350 A. D. It was further argued that the Certificate of Action was similarly out of time, and that the lien could not possibly have been perfected. It has always been the case that the time limitations imposed under the Construction Lien Act have been strictly enforced. Since it is a requirement under the Act that all such liens be registered within 45 days of the last work date, or supply of materials, or after a Certificate of Substantial Completion has been published, it would appear, at least on the surface, that the lien was registered too late, and that the lien rights expired in the last millennium. It is further alleged that all construction ceased for a period exceeding 100 years, between the commencement of the construction in 1173, and the completion in 1350. If so, then the original right to lien would have ended in the intervening period when no construction was proceeding, and the project should have been considered as having been abandoned during that same period. Alternatively, new lien rights may have accrued upon the completion date in 1350. In my view, the argument that being 648 years out of time is fatal to the Plaintiff's lien rights is an objection with considerable merit, but I would not discharge the lien on such a basis. After all, this is also an action on a contract, so lien rights are of secondary importance.

There are more serious issues to be dealt with which include (1) the quality of the construction, and (2) the significant delay in completing the project, and (3) whether the Defendant has suffered damages for which it has counterclaimed. I therefore rule that the lien was registered in time, in keeping with the requirements of the Construction Lien Act. If the Defendant is unhappy with my ruling, it can take it up with the Judicial Committee of the Papacy.

I think it appropriate to give a brief history of the construction project. The tower, now known as the leaning Tower of Pisa, or La Torre di Pisa, was built by the Plaintiff company, acting as general contractor, for the City of Pisa, hereinafter referred to as "the municipality". The municipality is therefore an "owner", within the meaning of the Act. It is a free-standing bell tower, built in the Romanesque style of architecture. It is about 180 feet high, and is of a circular shape, with a diameter of about 52 feet. There is a spiral staircase leading to the bell chamber, consisting of 294 steps. The bell is no longer rung, which is a good thing as it gives me a headache, and wakes me up on Sundays when I would rather look at the Sunshine Girl. The Defendant pleads that the campanile's severe list is not part of that architectural style, and was not featured in the architect's plan; I am inclined to believe the Defendant in this contention. The tower is part of a complex of three buildings consisting of a baptistery, a church, and the bell tower. Its design is remarkable for its colourful marble and decorative arches. There is no denying that the tower does not stand perpendicular to the ground, and it never has. The soil upon which it is built is undoubtedly unstable. The issue is whether there is some fault or negligence on the part of the Plaintiff contractor, and whether it should be held liable for damages.

The Plaintiff says the delays in construction were unavoidable, and not within its control. The Plaintiff also says that they were waiting for the invention of the printing press, and they had gone out to lunch. They did not see the tower begin to lean, as shown on CNN. There was a lengthy artisans' strike during the course of the construction. They were also very busy in other construction projects, including some basement renovations in Thornhill. I accept these as reasonable and proper explanations as to the delay in completing the project. The delay is accordingly justifiable, being beyond the control of the Plaintiff, and no damages can therefore be attributed to delay. There is the usual penalty clause in the construction contract, but I do not think that the Defendant can rely on it in all of the circumstances. A similar finding was made by Mr. Justice Marcello Strigberger in Pride v Prejudice, [1834] 2 All E. R. 432 at p. 450.

The tower was designed by Franco Lloyd Rigatoni, a noted architect of the time. He was unable to testify at the trial as he died 750 years ago. The architectural drawings, marked as Exhibit "uno" at trial, were carefully reviewed and were stamped "approved as to form and content0" by the Municipality in 1172. They appear to be quite in order. The plans were drawn to exacting standards, so I can find no reason to link the leaning of the tower to the architect's design or specifications. The contractor says it followed the plans as drawn. The tilting problem is all about balance.

It is alleged that the contractor failed to take a soil sample, or to perform a soil compaction test. Alternatively, geo-technical testing had not yet been invented. Another excuse is that the responsibility should lie upon the municipality in not demanding that such a sample be produced for its own building department to review, prior to the issuance of a Building Permit. The Municipality replies that it does not believe that any soil sample was ever tendered for inspection to its own engineers, or, alternatively, that the unscrupulous general contractor proceeded with such haste to start the project that it did not comply with this requirement. Who knows? The evidence was considerably lacking in persuasive quality, so I make no finding. The onus lies on the Defendant in asserting its counterclaim in this regard, and that onus has not been met on a preponderance of the evidence.

The municipality pleads that there have been numerous failures to comply with the Building Code, which is certainly the obligation of the general contractor. Under the Toscana Building Code, section 1 (a) (ii) reads as follows:

"You have to build the building straight so it won't fall down." (Trans.)

The Plaintiff says that it did the best it could, and thought that the building was straight enough. After a few drinks of Chianti, it may look straight, even to the reasonable man. How could the Plaintiff know that the soil on which the construction was proceeding was unstable, as it had not bothered to obtain a soil sample and had not performed a soil compaction test? Or, if geo-technical testing had not been invented, the contractor could not be expected to meet such a standard. I buy the argument. They did the best they could in all the circumstances.

The Defendant municipality has counter-claimed for damages, due to the obvious incline at which the building stands, and its alleged unsafe condition. In fact, the structure was closed in 1990, and has only recently re-opened to the public. The municipality therefore claims damages for loss of revenue at 50 lire per head during this 11 year closure period. I dismiss the counter-claim in its entirety, as it has not been proven to my satisfaction that the municipality has lost any revenue whatsoever. The expert accounting report purporting to quantify the loss, prepared by forensic accountants Lafleur, Cournoyer Beliveau and Geoffrion, (the same accounting firm which costed out the Olympic Stadium in Montreal), is rejected in its entirety, as it has been conclusively demonstrated that they don't know what the hell they're talking about. I am not convinced, on a balance of probabilities, that there is any loss suffered. If anything, the municipality has gained by any failure or negligence on the part of the Plaintiff, as the Tower has become somewhat of a tourist attraction. They should be thanking them for doing such sloppy work.

I have been impressed by the testimony of the Plaintiff's site superintendant, Alfonso Qaeda, who stated that the finest materials were used, and that the cement and footings supplied and installed by Perri Masonry, were fit for their intended purpose. Every effort was made to do a good and workmanlike job. Al Qaeda has proved a credible and reliable witness. His testimony is to be preferred to that of the Defendant's expert engineer, Casey Jones.

I therefore grant the Plaintiff's claim for Judgment in the amount of 1,245,632 drachmas, together with pre-judgment interest from 1350 to the date of Judgment, at the legal rate of interest of 5% per annum. I am not prepared to grant interest at 2% per month, even though that rate of interest is stipulated in the Plaintiff's invoice. I will accept written submissions as to costs if counsel cannot agree.

______________

© 2007 Martin Ceresney. This article CANNOT be copied or reproduced in any way without the expressed written consent of the Author.