MARIANNE B. BOWLER, Magistrate Judge.
Pending before this court is a summary judgment motion filed by claimant and third-party defendant 3A Marine Service, Inc. ("3A Marine") against plaintiff Gordon E. Parry, Jr. ("Parry"), owner of a 2003 Chaparral Signature 280 cabin cruiser ("the vessel"). (Docket Entry # 117). After conducting a hearing on March 23, 2018, this court took the motion (Docket Entry # 117) under advisement.
Parry initiated this action in March 2015 by filing a verified complaint for exoneration from or limitation of liability pursuant to the Limitation of Liability Act of 1851, 46 U.S.C. §§ 30501-30512 ("the Limitation Act"), after an explosion and fire on August 24, 2014 ("the incident") engulfed and sank the vessel in Provincetown harbor in Provincetown, Massachusetts. In June 2015, claimant David P. Lundmark ("Lundmark"), a passenger on the vessel at the time, filed a claim against Parry and an answer. (Docket Entry ## 16, 17). Parry, in turn, filed a reply to the claim (Docket Entry # 25) and an amended thirdparty complaint (Docket Entry # 38) against 3A Marine. The amended third-party complaint alleges Parry was without fault or knowledge and that 3A Marine is responsible for the injuries and losses resulting from the explosion and fire. The six-count amended third-party complaint sets out causes of action for breach of a maritime repair contract (Count I), negligence (Count II), gross negligence (Count III), indemnification (Count IV), contribution (Count V), and breach of the implied warranty of workmanlike performance (Count VI). (Docket Entry # 38). 3A Marine also filed a claim that the lack of due care on the part of Parry, Lundmark, and/or the vessel's unseaworthiness caused the incident as well as an answer to the amended third-party complaint and a counterclaim against Parry for contribution and indemnity. (Docket Entry ## 39, 40).
Summary judgment is designed "`to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'"
"An issue is `genuine' when a rational factfinder could resolve it [in] either direction" and a "fact is `material' when its (non)existence could change a case's outcome."
In 2007, Parry began servicing the vessel at 3A Marine. Located in Hingham, Massachusetts, 3A Marine repairs and sells recreation boats. (Docket Entry # 38, ¶ 18) (Docket Entry # 40, ¶ 18) (Docket Entry # 122-6) (Docket Entry # 122-2, p. 2).
In April 2014, Parry faxed a "`2014 Spring Commissioning Checklist' to 3A Marine" detailing the commissioning services he needed "before the 2014 boating season." (Docket Entry # 118, ¶ 1) (Docket Entry # 122, ¶ 1). The services included running and testing "engine systems" and a "computer diagnostic check." (Docket Entry # 119-1, Ex. 8, p. 25). 3A Marine performed the services and Parry paid the $6,123.71 invoice in full in early August 2014. (Docket Entry # 118, ¶ 2) (Docket Entry # 122, ¶ 2) (Docket Entry # 119-1, pp. 15, 27-31).
In the summer of 2014, Parry made approximately three trips from Savin Hill Yacht Club ("the yacht club") in Dorchester, Massachusetts, where he moored the boat for the season, to Provincetown.
On or about July 7, 2014, Parry told Desmond about the smell of gasoline and brought the vessel to 3A Marine.
After the above-noted inspection in early July, neither Parry nor any passenger noticed a smell of gasoline until July 25, 2014. (Docket Entry # 122-1, p. 26). On July 25, 2014, Parry again smelled an odor of gasoline. (Docket Entry # 122-1, p. 18). Specifically, after fueling the vessel at the yacht club, he noticed a gasoline odor in the cabin. (Docket Entry # 122, ¶ 42) (Docket Entry # 124, ¶ 42) (Docket Entry # 122-1, pp. 18, 27). Parry again opened the engine compartment and did not observe "anything." (Docket Entry # 122-1, p. 27). After running the blower, he brought the vessel to 3A Marine. (Docket Entry # 122, ¶ 42) (Docket Entry # 124, ¶ 42) (Docket Entry # 122-1, pp. 27).
At 3A Marine, Desmond "inspected the fuel system, and" discovered "there was a conclave in the gas tank," according to Parry.
3A Marine did not undertake any service or repair of the vessel after July 25, 2014. (Docket Entry # 118, ¶ 6) (Docket Entry # 122, ¶ 6) (Docket Entry # 119-1, p. 19). During the three trips that summer between the yacht club and Provincetown, the engines were operating or running fine. (Docket Entry # 119-1, pp. 5-7). In fact, on the second trip, Parry "stated that the Vessel was `running the best it's run in a long time.'" (Docket Entry # 118, ¶ 5) (Docket Entry # 122, ¶ 5) (Docket Entry # 119-1, pp. 5-6).
Parry did not detect a gasoline odor after the July 25, 2014 repair up to the time of the explosion and fire one month later on August 24, 2014. (Docket Entry # 119-1, p. 19). Parry also did not contact 3A Marine with respect to the "engines running roughly or improperly." (Docket Entry # 119-1, p. 19). In the days leading up to the incident, Parry recalls that the vessel ran the best it had run in recent years. (Docket Entry # 119-1, pp. 19-20).
On Friday, August 15, 2015, Parry took the vessel from the yacht club to Provincetown harbor. During the trip, the vessel "ran really good," according to Parry. (Docket Entry # 122-1, pp. 32-33). After arriving in the harbor, the vessel stayed on a mooring until Sunday, August 17, 2014. (Docket Entry # 122-1, pp. 32-34). During that weekend, neither Parry nor any visitors noticed or reported a smell of gasoline. (Docket Entry # 122-1, p. 34). Parry went "out to dinner" on one of the evenings. (Docket Entry # 122-1, p. 34).
On August 17, 2014, Parry left the vessel after locking and securing her to the mooring. (Docket Entry # 122-1, p. 35). He traveled by ferry to Boston and returned to Provincetown on August 20, 2014, at which point he boarded the moored vessel. (Docket Entry # 122, ¶ 44) (Docket Entry # 124, ¶ 44). On the morning of Saturday, August 23, 2014, Parry operated the vessel's engines for 30 minutes "without any issues or problems" in order to charge the batteries. (Docket Entry # 118, ¶ 8) (Docket Entry # 122, ¶¶ 8, 45) (Docket Entry # 124, ¶ 45) (Docket Entry # 122-1, pp. 38-39). He was alone on the vessel at the time. (Docket Entry # 122-1, p. 39).
Parry left the vessel, still moored, later that day to go ashore and returned late in the evening. (Docket Entry # 122-1, p. 37). Parry and Lundmark, who arrived on the vessel at some point on August 23, 2014, stayed on the vessel that night. (Docket Entry # 122, ¶ 46) (Docket Entry # 124, ¶ 46) (Docket Entry # 122-1, p. 39). "During the weekend of August 23 and 24, Parry did not smell any gasoline while onboard the Vessel." (Docket Entry # 118, ¶ 9) (Docket Entry # 122, ¶ 9).
On Sunday, August 24, 2014, Parry "made the vessel ready to get underway." (Docket Entry # 122, ¶ 47) (Docket Entry # 124, ¶ 47). Before he started the engines, he turned on the vessel's blower system. (Docket Entry # 122-1, pp. 41, 44). The blowers remained on after Parry started the engines. (Docket Entry # 122-1, p. 44). He did not smell any gasoline odor before he started the engines. (Docket Entry # 122-1, p. 45). Lundmark also did not indicate that he smelled any gasoline. (Docket Entry # 122-1, pp. 45-46).
When Parry "started the engines, . . . the port engine backfired but eventually started up." (Docket Entry # 122, ¶ 48) (Docket Entry # 124, ¶ 48) (Docket Entry # 122-1, pp. 43-44). Thereafter, it "sounded regular," according to Parry. (Docket Entry # 122-1, p. 44). With Parry at the helm, Lundmark released the mooring lines and returned to a seat on the port side to the left of the helm. (Docket Entry # 122-1, pp. 43, 47-48). Parry began driving the vessel and, "[s]hortly after letting go of the mooring lines, the port engine stopped." (Docket Entry # 122, ¶ 49) (Docket Entry # 124, ¶ 49) (Docket Entry # 122-1, pp. 49-50). Parry restarted the port engine, turned "the blower off," proceeded to go through the mooring field, and, as he "near[ed] the wake zone, . . . started to give the boat more gas." (Docket Entry # 122, ¶ 49) (Docket Entry # 124, ¶ 49) (Docket Entry # 122-1, pp. 50-52). When "the vessel was outside of the mooring area, [Parry] heard a lot of yelling and a lot of bangs." (Docket Entry # 122, ¶ 49) (Docket Entry # 124, ¶ 49) (Docket Entry # 122-1, p. 52). Turning around, he "saw large flames going out of the engine compartment." (Docket Entry # 122-1, p. 52).
Following the explosion, the vessel burned and sank in the harbor. (Docket Entry # 1, ¶ 6). Parry's insurance company arranged for a recovery of the vessel. (Docket Entry # 1-2, ¶¶ 4, 6). On September 2, 2014, Massachusetts Environmental Police ("MEP") Sergeant John Girvalakis ("Girvalakis"), the first person to inspect the vessel, took a number of photographs of the vessel, including the high pressure fuel system on the port engine.
Girvalakis testified that he observed a fuel fitting on the high pressure fuel system for the port engine positioned with the nozzle pointed forward, away from the engine. (Docket Entry # 122-4, p. 7). Believing the position was incorrect, Girvalakis turned the fuel fitting clockwise such that it fitted "snugly."
A second inspection of the vessel took place on October 14, 2014 at Bay Sails Marine in Wellfleet, Massachusetts, where the vessel was stored. (Docket Entry # 118, ¶ 11) (Docket Entry # 122, ¶ 11). The fire cause and origin investigators at the joint inspection included: Steven Sundquist ("Sundquist"), who represented Parry's interests; Michael Higgins ("Higgins"), who represented 3A Marine's interests; Michael Hennessy, who represented Lundmark's interests; and Girvalakis. (Docket Entry # 118, ¶ 11) (Docket Entry # 122, ¶ 11) (Docket Entry # 128-1). Sundquist and Girvalakis placed "the origin of the fire" as "the engine compartment." (Docket Entry # 119-3, p. 10) (Docket Entry # 122-3, p. 7).
Girvalakis could not rule out a maintenance mishap as the cause of the incident but "`concluded'" that the incident was "`accidental in nature.'" (Docket Entry # 119-3, p. 13) (Docket Entry # 122-4, p. 19). He could not say whether maintenance had an impact, other than the fact that boats do not spontaneously explode and "[s]omething would have" occurred to allow the explosive environment in the engine compartment. (Docket Entry # 119-3, p. 10). When asked whether he knew "what caused the looseness on the nut on [the] high pressure fuel system on the port engine," he replied, "No. I can't identify whether it was [a] human factor or if it was heat-related or some type of maintenance issue. I can't make that determination." (Docket Entry # 119-3, p. 7). He did rule out a gas can located forward of the engine compartment, an outboard engine "taken off the dinghy," and criminal activity.
Relevant testimony at Girvalakis' deposition, as highlighted by Parry and/or 3A Marine, reads as follows:
(Docket Entry # 119-3, pp. 8-10).
In addition to opining that the origin of the explosion and fire was in the engine compartment, Sundquist indicated that "the cause" was "the ignition of the gasoline vapors that were present in the engine compartment" and testified that the source of the gasoline was a leak "from the pressurized system of the engine's fuel system."
Sundquist also recognized that Girvalakis previously manipulated one of the fuel fittings in the high pressure fuel line for the port engine.
When asked if the intensity of the fire could have caused the loosening, Sundquist replied that he would expect that the fire "would have loosened both" fittings. (Docket Entry # 122-3, p. 26). Other than the fuel delivery system, Sundquist did not know the "particular piece of equipment in the vessel" that leaked or "where the fuel leak existed."
Relevant testimony at Sundquist's deposition, as emphasized by Parry and/or 3A Marine, includes the following:
(Docket Entry # 119-4, pp. 3-4) (Docket Entry # 122-3, pp. 9, 13, 17-19). Higgins, 3A Marine's expert, similarly "testified that `NFPA said it should be classified as undetermined.'" (Docket Entry # 118, ¶ 22) (Docket Entry # 122, ¶ 22).
3A Marine seeks summary judgment on "all claims," including the maritime negligence claims, in the amended third-party complaint because Parry fails to establish sufficient evidence of causation and fails "to identify any act or omission attributable to 3A Marine" which caused the fire and explosion. (Docket Entry ## 117, 120, 126). Parry responds that genuine issues of fact exist as to the proximate cause of the fire and 3A Marine's failure to fulfil its contractual and implied warranty obligations. (Docket Entry # 123).
As noted, 3A Marine contends that no genuine issues of material fact exist regarding the proximate or legal cause of the explosion and fire. (Docket Entry # 120, p. 8). Parry submits "there is a genuine issue of fact as to the proximate cause of the explosion and fire." (Docket Entry # 123, p. 8).
Parry does not object to the proximate or legal cause standard of causation that 3A Marine employs.
Parry bears the underlying burden to show by a preponderance of the evidence that the repairs "actually and proximately caused the fire."
Due to 3A Marine's lack of exclusive control of the vessel during the month before the incident, Parry requires additional evidence to create a genuine dispute of material fact that the fire was more likely than not caused by 3A Marine's negligence.
Resolving disputes in the expert testimony in Parry's favor, Sundquist "testified that `the cause of the explosion and subsequent fire [was] the ignition of the gasoline vapors that were present in the engine compartment'" (Docket Entry # 122, ¶ 61) (Docket Entry # 124, ¶ 61, ln. 1) but he did not know what caused the gasoline vapors to accumulate in the engine compartment (Docket Entry # 122-3, p. 13). The source of the gasoline leak was from the pressurized side of the engine's fuel delivery system with the origin of the explosion and fire in the engine compartment, according to Sundquist. In short, Sundquist identified the ignition source of the explosion (gasoline vapors in the engine compartment) and further pinpointed the source of the vapors as leaking from the pressurized side of the engine fuel system.
He additionally testified that the loose fitting on the supply line could not have been torqued correctly or the torque measurement was incorrect due to contamination or deformities. He had "no evidence" to suggest "that 3A Marine did not properly torque the hexagonal shaped fitting on the high pressure fuel pump on the port engine." (Docket Entry # 125-2, p. 10) (emphasis added). Sundquist would expect that the heat of the fire would cause both fittings to loosen thus indicating that heat did not cause the loose fitting on the supply line. Like Higgins, Sundquist classified the cause of the fire as "undetermined" under NFPA 921. (Docket Entry # 119-4, p. 4). An "undetermined" classification is proper "whenever the cause cannot be proven to an acceptable level of certainty . . . ." NFPA 921, § 20.1.4 (2017 ed.). Whereas Sundquist identified the origin of the explosion, his testimony when viewed in Parry's favor, does not allow a jury to find it was more probable than not that improper torquing of the fitting by 3A Marine actually and proximately caused the explosion and fire.
Girvalakis concluded that the incident was "accidental in nature." (Docket Entry # 119-3, pp. 13-14, 18). He could not "rule out the possibility of a maintenance mishap" in the sense that "boats just don't spontaneously explode." (Docket Entry # 119-3, pp. 8, 18). More specifically, he could not be certain whether there was "some type of maintenance issue," such as "changing filters the boat" or "something to do with the fuel system." (Docket Entry # 119-3, p. 9). He ruled out criminal activity, a gas can, and an outboard engine. Girvalakis also thought he would include other causes in his report if he could not rule them out. (Docket Entry # 122-4, p. 17). He did not know what caused the looseness of the fitting, i.e., whether it was a "human factor," a maintenance issue, or heat related. (Docket Entry # 119-3, p. 7). He could not be certain what created the explosive environment of fuel in the engine compartment, i.e., whether it was "maintaining the boat, working on the boat, changing filters on the boat" or "something to do with the fuel system on the boat." (Docket Entry # 119-3, pp. 9-10).
Overall, the foregoing expert testimony does not allow a reasonable jury to find by a preponderance of the evidence that repairs or service undertaken by 3A Marine actually and proximately caused the explosion and fire. Similarly, Parry fails to show that a jury could find that 3A Marine's omissions actually and proximately caused the explosion and fire. Summary judgment is therefore appropriate on the negligence and gross negligence claims in the amended third-party complaint.
In moving for summary judgment on the breach of the maritime contract and implied warranty of workmanlike performance claims, 3A Marine presents similar arguments. First, it maintains there is no evidence that it breached the maritime service contract or the implied warranty by failing to properly service or repair the vessel. Second, 3A Marine contends that Parry fails to meet the requisite evidentiary burden on causation because there is no evidence showing that 3A Marine breached any obligation to Parry which caused the explosion and fire. (Docket Entry ## 120, 126). Parry argues that the repeated odors of gasoline coupled with 3A Marine's repair one month before the incident and its exclusive control over the vessel's maintenance and repair avoid summary judgment. Parry also points out that he had a right to rely on 3A Marine's expertise which "creates a warranty that binds" the company to use the requisite diligence and skill to accomplish the task. (Docket Entry # 123).
"[J]udicially-developed norms of the general maritime law" as well as "`an amalgam of traditional common-law rules, modifications of those rules, and newly created rules,' govern actions in admiralty."
The "implied warranty of workmanlike performance `parallels a negligence standard rather than imposing the strict liability' that attaches to implied warranties in land-based contracts under the Uniform Commercial Code."
Thus, in order to prevail on a claim for breach of the implied warranty of workmanlike performance or breach of a maritime repair contract, "the vessel owner must prove that any breach of the warranty was the proximate cause of any actual damages."
As previously discussed, however, 3A Marine did not have exclusive control of the vessel such that a presumption of causation could arise. Having considered Parry's arguments to the contrary and for reasons stated in Roman numeral I, a reasonable jury could not find by a preponderance of the evidence that the actions or omissions of 3A Marine in servicing or repairing the vessel in July 2014 (or prior thereto) proximately caused the injury or damages to the vessel on August 24, 2014.
In accordance with the foregoing discussion, this court
(Docket Entry # 122-4, pp. 17, 19).
