Namoh, Ltd. v Boston Waterboat Marina, Inc.

Filing 128

Judge Douglas P. Woodlock: FINDINGS OF FACT AND CONCLUSIONS OF LAW entered directing judgment for the plaintiff. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

NAMOH, LTD.
Plaintiff,
v.
BOSTON WATERBOAT MARINA, INC.
Defendant.

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CIVIL ACTION NO.
13-10032-DPW

FINDINGS OF FACT AND CONCLUSIONS OF LAW
September 7, 2017
On August 30, 2011, the M/Y NAMOH struck a wooden piling
while backing into a berth provided by defendant Boston
Waterboat Marina, Inc. (“BWM”).

This litigation ensued to

determine whether plaintiff Namoh, Ltd. should be held
comparatively at fault for the damages as a result of this
allision and to establish the damages, if any, for which BWM is
responsible.

Following a non-jury trial, I make these Findings

of Fact and Conclusions of Law pursuant to Fed. R. Civ. P. 52.
I. FINDINGS OF FACT
A.

The M/Y NAMOH and Her Intended Voyage
The M/Y NAMOH is a 125 foot luxury motor yacht owned by

Namoh, Ltd.

The M/Y NAMOH is equipped with twin diesel engines

and two five-bladed propellers with diameters of 1300mm and a
weight of over five hundred pounds each.

The M/Y NAMOH is also

equipped with a sonar system manufactured by Wesmar that has a

display monitor at the helm station on the far port side of the
vessel.
At the time of the allision, the two members of Namoh, Ltd.
were Walter Homan and his father Frank Homan.
semordnilap of Homan.

Namoh is the

The Homan family used the M/Y NAMOH both

for personal pleasure and for commercial chartering.

At the end

of August, 2011, Walter Homan was travelling aboard the M/Y
NAMOH with his family.

On August 30, 2011, the M/Y NAMOH

travelled from Camden, Maine to Boston, Massachusetts to meet
Walter Homan’s son and his girlfriend.
B.

The August 30, 2011 Docking
On the evening of August 30, 2011, the M/Y NAMOH arrived in

the Port of Boston.

The vessel’s Master, Captain Gregory

Russell, contacted BWM seeking a dock berth.

Captain Russell

spoke with Christopher Cannon, the manager of BWM and a licensed
captain himself, who directed Captain Russell to berth in “D”
dock, a slip in which the M/Y NAMOH had previously berthed.
The M/Y NAMOH arrived at BWM at approximately 6:00 PM and
prepared to berth in “D” dock.

Captain Russell positioned the

M/Y NAMOH to back into “D” dock with her starboard side to be
tied to the berth.

Captain Russell positioned himself on the

wing station on the M/Y NAMOH’s starboard side.

From the wing

station, the monitor for the sonar would not be visible.

2

Cannon, joined by his father Larry Cannon, was present at “D”
dock in order to assist with the berthing process.
Approximately half to two-thirds of the way into the berth,
the M/Y NAMOH experienced a sudden and violent shudder.

The

starboard engine shut down and Captain Russell ordered the crew
to throw out lines in order to secure the vessel from drifting.
He then called the engineer in the engine room to determine if
the engine readings appeared normal.

When the engineer

confirmed that they did, Captain Russell restarted the starboard
engine.

Captain Russell reasonably believed either that a line

had become wrapped around the propeller, which had caused the
engine to shut down, or that whatever object the vessel had
struck had been cleared out by the initial impact.
Following the same procedure, the M/Y NAMOH again backed
into the berth.

Cannon remained on “D” dock watching the

berthing and he did not instruct or warn Captain Russell not to
proceed.

As the vessel backed in, she appeared to hit

something hard and the starboard engine again shut down.

The

M/Y NAMOH was pulled into “D” dock using her mooring lines and
deck winches.
At trial, Cannon testified that he believed the wing
station was a proper place for Captain Russell to be during a
berthing process.

When asked whether he felt that Captain

Russell had done anything improper while backing in the vessel,
3

Cannon said no.

When presented with his deposition and earlier

interrogatories, Cannon confirmed that at the time he gave his
deposition, he had also been of the view that Captain Russell
did not operate improperly during the berthing process.1
BWM has admitted that it was negligent for failing to
provide the M/Y NAMOH with a safe berth and admits that it
breached its implied warranty of workmanlike performance to
Namoh, Ltd.

I find that Captain Russell did not operate the M/Y

NAMOH improperly during the berthing process and, more
specifically, that he did not act unreasonably when he backed
the M/Y NAMOH into the berth for a second time.

I find that any

damage to the M/Y NAMOH while berthing at “D” dock was caused
solely by BWM’s admitted failure to maintain a safe berth and
its failure to warn Captain Russell of an obstruction in “D”
dock berth.
Following an initial inspection of the vessel immediately
after the incident, which did not reveal any damage, Cannon told
Captain Russell that BWM would schedule a diver to determine
what the M/Y NAMOH had struck and to investigate whether the M/Y
NAMOH’s propellers had suffered any damage.

On August 31, 2011,

1

I note that Thomas Hill proffered an expert opinion on behalf
of BWM at trial that Captain Russell contributed to the M/Y
NAMOH’s damage by striking the obstruction a second time. Hill
opined that Captain Russell should have used the M/Y NAMOH’s
sonar to investigate the obstruction or he should have used the
lines to haul the M/Y NAMOH into the berth.
4

BWM engaged Edward Redfield, a commercial diver, to inspect the
M/Y NAMOH and the “D” dock berth.

Redfield inspected the M/Y

NAMOH underwater and observed that two blades of the starboard
propeller were bent at the tips.

Redfield found nothing

remarkable with respect to the starboard running gear
stabilizers, the hull, the port propeller, or the port running
gear of the M/Y NAMOH.

Redfield took video and still

photographs of the damage to the starboard propeller and Captain
Russell viewed and recorded the video.
Later that day, Captain Russell engaged in a sea trial of
the vessel in Boston Harbor.
NAMOH exhibited vibration.

During the sea trial, the M/Y

When the vessel returned to BWM

after the sea trial, Captain Russell and Cannon discussed the
possibility of repairing the propeller at BWM by hiring a dive
team to remove the propeller in the water.

BWM had no capacity

itself to take the propeller off the M/Y NAMOH in the water in
Boston and had never employed a facility previously to take a
propeller off a vessel with the size and weight of the propeller
on the M/Y NAMOH.
Ultimately, the decision was made to continue on to New
York.

As Captain Russell explained, “I thought we had a better

chance of doing [the repairs] down in New York with better
facilities and better equipped . . . personnel.”

5

But repairing the vessel was not the only motivation for
the trip to New York; Captain Russell also hoped to “still try
and maintain the owner’s trip.

There was – you know, that was

the – that was the objective, to try and salvage some of his
trip.

And we felt that at some point that the propeller was

going to have to come off and we’d have a better chance down in
New York.”

Captain Russell believed there was a guest

transition planned for New York, where some of the owner’s
guests would be departing and others would be arriving.
I find the M/Y NAMOH travelled for New York both to obtain
repairs and to allow the M/Y NAMOH’s owner to continue his trip
as scheduled.

I also find that it was not unreasonable for the

M/Y NAMOH to depart from Boston to seek repairs.
C.

The Journey to New York
The M/Y NAMOH travelled from Boston to New York, with stops

in Newport, Rhode Island and Sag Harbor, New York.

During the

voyage, Captain Russell and his crew monitored the engine thrust
shaft temperature and kept the M/Y NAMOH at a reduced speed.
The M/Y NAMOH was run on both engines, with the starboard engine
running at a reduced rate. On September 1, 2011, during the
journey from Boston to Newport, the starboard engine was run at
no higher than 550 RPMs and the thrust bearing temperature for
the starboard engine never exceeded 131 degrees Fahrenheit.
September 2, 2011, during the journey from Newport to Sag
6

On

Harbor, the starboard engine was run at no higher than 550 RPMs
and the thrust bearing temperature for the starboard engine
never exceeded 132 degrees Fahrenheit.
On September 3, 2011, as the M/Y NAMOH travelled from Sag
Harbor to New York City, the thrust bearing temperatures
readings began to climb.

The M/Y NAMOH’s engine room visual

inspection log indicates that at approximately 1 AM, the
starboard engine was being run at 550 RPMs and the thrust
bearing temperature for the starboard engine was 107 degrees
Fahrenheit.2

Over the next three hours, the starboard engine

stayed at 550 RPMs, but the temperature readings increased to
122, 130, and 135 degrees Fahrenheit.

At 4:15 AM, the log notes

that two cups of oil were added to the starboard thrust

2

The times listed across the top on this page of the log appear
to have been changed. The subsequent changes do not completely
conceal the earlier version of the times. In the earlier
version, the entries began at 0000, then went to 0100, 0200, and
ended at 0500. The entries as now presented start at 0100, then
go to 0200, 0300, and end at 0600. At closing arguments, BWM
argued that I should view these changes as an attempt by Namoh,
Ltd. to cover up damage that occurred to the starboard engine on
the trip from Sag Harbor to New York. I find no such nefarious
motivation behind the changes made to the times on this
questioned page of the engine visual inspection log. As BWM
concedes, if I were to adopt the earlier version of the log,
there would be no 0600 entry because the next page of the log
begins at 0700 and bears no indication that it was changed.
Under these circumstances, because the earlier version would
make the chronological record incomplete and especially because
the subsequent version appears to be a contemporaneous change to
the log, I find the subsequent version accurately states the
times at which the entries were made.
7

bearings.

Then, at 5:00 AM, the starboard engine was run at 950

RPMs and the thrust bearing temperature for the starboard engine
was 148 degrees Fahrenheit.3

At 6:00 AM, the starboard engine

was still being run at 950 RPMs and the thrust bearing
temperature for the starboard engine had increased to 152
degrees Fahrenheit.

At 7:00 AM, the starboard engine was run at

921 RPMs and the thrust bearing temperature for the starboard
engine was 163 degrees Fahrenheit.

At 8:00 AM, the starboard

engine went back down to 550 RPMs, but the thrust bearing
temperature for the starboard engine remained at 163 degrees
Fahrenheit.

At 9:00 AM and 10:00 AM, the starboard engine was

run at 720 RPMs and 770 RPMs respectively and the thrust bearing
temperature for the starboard engine was 155 and 156 degrees
Fahrenheit.
In his testimony, Captain Russell recalled that the
temperature of the starboard engine thrust bearings “spiked”
during the trip from Sag Harbor to New York City; he believed
this indicated an issue with the bearings.

By the time the M/Y

3

BWM argues that if I read the entries in accordance with the
earlier version, the starboard engine would have reached 950
RPMs at 4:00 AM and the oil would have been added only fifteen
minutes later, which would show (according to BWM) that the
starboard engine bearing failed because the starboard engine was
run above idle. I have adopted the subsequent version of the
time entries on the log. However, even if I were to adopt the
earlier version of the time entries, I would find that it does
not constitute sufficient evidence to show that the M/Y NAMOH
aggravated her damage.
8

NAMOH reached New York City on September 3, 2011, Captain
Russell believed that the vessel’s issues now extended beyond
the damage to the propeller and that the thrust bearings needed
to be inspected.4

4

As to the M/Y NAMOH’s journey to New York, I note Thomas
Hill opined the M/Y NAMOH should have been repaired in the water
at BWM or at a local yard closer to Boston than New York and
that it was unreasonable for the M/Y NAMOH to proceed to New
York. He focused his analysis on the trip between Sag Harbor to
New York, relying on the September 3, 2011 engine room visual
log’s readings that show that the starboard engine was run at
higher RPMs and that the thrust bearing temperature was
elevated. He concluded that the journey, in particular the
period between Sag Harbor and New York, increased strain on the
starboard engine and exacerbated preexisting problems with the
M/Y NAMOH’s starboard running gear. Analyzing earlier entries
in the engine room visual log, including one from July 29, 2011,
Hill opined that both the starboard and port thrust bearing
assemblies were generating excessive friction before the August
30, 2011 incident. The July 29, 2011 readings show the thrust
bearing temperature at 183 degrees Fahrenheit, which Hill opined
would exceed the general rule that moving machinery components
should not generate heat uncomfortable to touch.
On cross examination, Hill struggled to quantify the
magnitude of the damage sustained on the journey to New York.
He stated that bearing damage is progressive and that it can
only be judged by the end result. He asserted again his view
that bearings, like all moving machinery, do not like high
temperature and that when the bearing surface reaches a
temperature where you cannot touch it, there is an indication of
friction, which in turn indicates ongoing damage to the
bearings.
I credit Hill’s testimony insofar as he says an increase in
temperature indicates an increase in friction, but I do not
credit his conclusions on the magnitude of the damage sustained
on the journey to New York. I do not adopt his categorical
underlying assumption that if machinery is too hot to touch,
then damage is necessarily occurring and I find his analysis
fails to explain in a nuanced and credible manner the precise
amount of damage, if any, the M/Y NAMOH experienced on the trip
to New York.
9

In New York City, divers from Underwater Construction
Corporation were engaged to attempt to remove the starboard
propeller from the M/Y NAMOH.

Underwater Construction

Corporation provided a written estimate on September 2, 2011 for
removing the starboard propeller, transporting the propeller to
its Staten Island facility, and coordinating transport of the
propeller to the repair facility.

Underwater Construction

Corporation estimated the final bill for these services would be
$2,200.00.
The divers from Underwater Construction Corporation were
unable to remove the propeller and no other facility could be
found in New York City to repair the M/Y NAMOH at that time.
Namoh, Ltd. has not presented documentary evidence of the actual
cost and payment for Underwater Construction Corporation’s
unsuccessful attempt.

Namoh, Ltd. relies instead on the

original estimate for a successful removal and a statement by
Graeme Lord, the yacht manager of the M/Y NAMOH.

As the yacht

manager, Lord was not himself tasked with reviewing and paying
invoices.

Angus MacKenzie and Romy Barden, who worked with Lord

at the yacht management company, handled the billing for
repairs.

It appears Lord’s statement is based upon his review

of the estimate.

In the absence of other evidence establishing

the amount billed and paid for the failed attempt to remove the
propeller, I do not find Lord’s statement credible; thus, I find
10

Namoh, Ltd. has not established the charges it incurred from
Underwater Construction Corporation.
At this point, Captain Russell decided that the M/Y NAMOH
should be hauled out for repairs, and Homan and his family
disembarked in New York.

The M/Y NAMOH was then towed to

Fairhaven Shipyard in Fairhaven, Massachusetts for repairs.
I find that Captain Russell’s conduct following the
incident at BWM was not unreasonable and did not aggravate the
damage to the M/Y NAMOH caused by the allision.
D.

The Repairs at Fairhaven
The M/Y NAMOH arrived at Fairhaven Shipyard on September

19, 2011 and remained there undergoing repairs until October 18,
2011.

Namoh, Ltd. was charged $23,800.00 for the tow from New

York City to Fairhaven, but Namoh, Ltd. has reduced the recovery
it seeks to $11,424.00 to reflect what it would have cost if the
M/Y NAMOH had been towed directly to Fairhaven from Boston.
Namoh, Ltd. was also charged $1,700.00 for shifting the vessel
from the floating dock to the travel lift slip at Fairhaven
Shipyard and $1,644.40 for the trip and tow survey.

The

Fairhaven Shipyard hauled the M/Y NAMOH out, replaced the
vessel’s starboard shaft bearings and the starboard propeller

11

for $27,549.60.5

Namoh, Ltd. also incurred expenses in the

amount of $52,863.09 from Advanced Mechanical for its travel to
and from Fairhaven Shipyard to work on the vessel’s starboard
propeller, ceramic covered seal sleeves, o-rings, and
centrifugal components.
Namoh, Ltd. incurred other incidental expenses during the
repairs at Fairhaven Shipyard.

These included expenses in the

amount of $5,300.00 for crew accommodations, reflecting the
rental brokerage fee and rental property expenses for September
and October, 2011, as well as $1,490.12 for Captain Russell’s
hotel accommodations in Fairhaven for various dates during the
repair period in September and October, 2011.

Namoh, Ltd. spent

$690.80 for Captain Russell and a crewmember to travel to and
from Florida to coordinate with Florida vendors concerning the
vessel’s repairs.

Namoh, Ltd. spent $4,457.99 on rental

vehicles for Captain Russell and the crewmembers in Fairhaven,
as well as $593.81 on fuel for the rental vehicles.

Namoh, Ltd.

also incurred expenses for food and provisions for Captain
Russell and the crewmembers of $5,099.47 during the repair
period.

While repairs at Fairhaven Shipyard were ongoing,

Namoh, Ltd. hired diver Jared Carleton to inspect the “D” dock

5

While at Fairhaven Shipyard, the M/Y NAMOH also had her
portside shaft bearings repaired. Namoh, Ltd. has not sought
recovery from BWM for those repairs.
12

berth at BWM.

He charged Namoh, Ltd. $3,600.00 for his

inspection.
Namoh, Ltd. also seeks overhead expenses for operational
management fees in the amount of $9,000.00 and project
management fees in the amount of $10,000.00.

The only evidence

supporting these figures consists of two conclusory paragraphs
in Lord’s affidavit.

Because there was no evidence linking

these fees to the repair at issue, I do not find that these
charges were reasonably related to the repair.
In September 2011, Namoh, Ltd. incurred crew wages in the
amount of $31,055.97.

Namoh, Ltd. incurred the same amount of

crew wages in October 2011 for the time the M/Y NAMOH’s
crewmembers were available in Fairhaven to assist with the
repairs.
I find that Namoh, Ltd. incurred $95,181.09 for repair
costs and towage charges and $83,344.13 for crew accommodations
and incidental repairs.

I find these charges reasonable,

necessary, and appropriate to the repair.
E.

The Journey to Florida and Repairs in Florida
After the repairs in Fairhaven, the M/Y NAMOH travelled to

Fort Lauderdale, Florida.

The M/Y NAMOH often travelled to

Florida at this time of year to perform maintenance and to give
the crew a brief break.

In 2011, the M/Y NAMOH had been hauled

out in Fort Lauderdale for general maintenance in the spring.
13

While in Fort Lauderdale, the M/Y NAMOH’s starboard propeller
was reconditioned again at a cost of $3,144.00, for which Namoh,
Ltd. was invoiced on November 21, 2011.

At his deposition,

Captain Russell explained that he felt the starboard propeller’s
condition after leaving Fairhaven still was not satisfactory and
that the decision was made to repair the propeller again.
F.

The M/Y NAMOH’s Charter History and Prospects
Although the Homans use the M/Y NAMOH often as a pleasure

vessel, they also charter the vessel.

At trial, Walter Homan

explained that:
My family and I are fortunate enough to have the
flexibility to use the boat around any particular charters,
so it was always common knowledge and it came down from my
dad that charters came first, and we would always be able
to get off, fly home, fly back, and family personally use
the boat when there wasn’t any charters.
The M/Y NAMOH did not have any charters scheduled for September
or October 2011 and Captain Russell testified that he
anticipated the M/Y NAMOH would be in Florida for that time.
Lord testified that once it became clear the M/Y NAMOH was going
to undergo lengthy repairs in Fairhaven, he instructed Namoh,
Ltd.’s charter broker to remove the vessel from its website and
not to market the vessel for charter in September or October
2011.

Lord also testified that charters can come in at the last

minute in New England, a week or even a day before the charter’s

14

commencement date, and that he expected September 2011 to be a
good month for charters in New England.
In 2008, the M/Y NAMOH had two charters, the first in July
and August and the second starting in December and going into
January 2009.

In 2009, the M/Y NAMOH had two charters, the

first in May and the last in June, while in 2010 the vessel had
three charters, the first in March, the second in April, and the
third in December through January 2011 in the Caribbean.

In

2011, the M/Y NAMOH had two charters, the first in July and the
last in August.

In 2012 and 2013, the M/Y NAMOH was not offered

for charter because Frank Homan was dying of an illness and
wanted additional time to enjoy the vessel.

In 2014 and 2015,

the M/Y NAMOH had two charters each year, with the charters
occurring in April, November, December, and January and all
taking place in Florida and the Caribbean.

As of October 19,

2016, the M/Y NAMOH had six charters in 2016 and was in the
process of completing her seventh charter, which included one
charter in September.

I find that any prospects of charter

during the relevant period6 are too speculative to make part of
any damages award.

6

In this connection, I note that Thomas Hill opined that no
potential or real charter income was lost. He based his
conclusion on Captain Russell’s understanding that the vessel
was to be used for recreational purposes for September and
October 2011 and that the crew would be on break once the vessel
reached Florida. He also relied on the fact that there was no
15

II.
A.

CONCLUSIONS OF LAW

Namoh Ltd.’s Comparative Fault for the Second Strike
As discussed above, BWM has admitted liability for the

initial strike.

It admitted it was negligent in failing to

provide a safe berth, that it breached its implied warranty of
workmanlike performance, and that its breach was the proximate
cause of damages sustained by the M/Y NAMOH’s starboard
propeller.

See generally Sailor Inc. F/V. City of Rockland, 428

F.3d 348, 351 (1st Cir. 2005) (“The wharf owner must exercise
diligence to maintain its berths in a safe manner and to remove
any ‘dangerous obstruction’ or warn of its existence.”).

As to

liability, therefore, I must determine only whether Captain
Russell was also comparatively at fault for the second strike.
While a wharf owner has a duty to provide a safe berth,
“the vessel too must use ‘ordinary care,’ avoiding dangerous
conditions that are known to the operator or are obvious.”
Sailor Inc.

F/V, 428 F.3d at 351 (citing Smith v. Burnett, 173

U.S. 430, 433 (1899)).

“‘[W]hen two or more parties have

contributed by their fault to cause property damage in maritime
collision or stranding, liability for such damage is to be
allocated among the parties proportionately to the comparative
degree of their fault.’”

P.R. Ports Authority v. M/V Manhattan

charter agreement in place on the date of the incident and none
scheduled for the weeks the M/Y NAMOH was being repaired.
16

Prince, 897 F.2d 1, 3 (1st Cir. 1990) (quoting U.S. v. Reliable
Transfer Co., 421 U.S. 397, 411 (1975)).
I conclude Captain Russell acted reasonably when he backed
the M/Y NAMOH into the berth for a second time and that Namoh,
Ltd. is not comparatively at fault.

“A ship’s master has

considerable discretion, but it is not unbridled. . . . [A]n
action will lie if he ‘ma[kes] a decision which nautical
experience and good seamanship would condemn as inexpedient and
unjustifiable at the time and under the circumstances.’”
DiMillo v. Sheepscot Pilots, Inc., 870 F.2d 746, 748 (1st Cir.
1989) (quoting The Lizzie D. Shaw, 47 F.2d 820, 822 (3d Cir.
1931)).

When there is a maritime accident, a captain’s

decisions “though wrong, judged by the result, do not require
him to be held liable, if his decisions were those which a
competent harbor pilot similarly situated might reasonably have
made under the same circumstances.

The law requires due care

and skill, but not infallibility.”

United Fruit Co. v. Mobile

Towing & Wrecking Co., 177 F. Supp. 297, 302 (S.D. Ala. 1959).
As I have found, before the second strike, Captain Russell
reasonably believed either that a line had wrapped itself around
the propeller but was now clear or that the vessel had struck an
object with sufficient force to push it away.

The fact that

Cannon testified that Captain Russell did not act improperly on
the day of the accident further supports that finding.
17

Peoples

Natural Gas Co. v. Ashland Oil, Inc., 604 F. Supp. 1517, 1525-26
(W.D. Pa. 1985) (relying on testimony of dock’s manager, “who
occasionally spotted barges himself” that “all experienced
pilots used the same docking procedure that [the captain] had
used” to conclude captain exercised due care).

Of course, if

Captain Russell had made a different choice about renewing the
docking process, the second strike would not have occurred, but
“[t]he mere fact that a different course of action might have
avoided the accident is not sufficient to establish contributory
negligence.”

Hurst v. City of Virginia Beach, 1972 A.M.C. 2346,

2355 (E.D. Va. 1971).

Captain Russell reasonably made a

decision, based on the information before him, that the
obstruction had likely cleared and that the M/Y NAMOH was in
adequate condition to continue berthing.
At times, and with varying degrees of conviction, BWM
contends that Captain Russell should have utilized the sonar on
board the M/Y NAMOH to determine what the obstruction in the
berth was.

I do not have sufficient evidence before me to

determine the potential utility, if any, the sonar would have
had under these circumstances.

More importantly, as discussed

above, I credit Cannon’s testimony that the wing station was a
proper place for Captain Russell to be during a berthing process
and I find the monitor for the sonar was not visible from the
wing station.

I conclude that Captain Russell is not at fault
18

for failing to use sonar during the berthing process, even after
he encountered an obstruction in the berth.
Thomas Hill’s opinion does not change my conclusion.

His

views on sonar are irrelevant to my conclusion since the monitor
for the sonar would not be visible from the wing station and it
was reasonable for Captain Russell to be on the wing station
during berthing.

Hill’s opinion that it was unreasonable for

Captain Russell to back in a second time contravenes the opinion
of Cannon, an experienced captain in his own right who stands in
an adverse position in this litigation and was a percipient
witness of the incident.
Russell’s actions.

I credit Cannon’s view of Captain

Indeed, even if there were a dispute between

experienced captains about the reasonableness of Captain
Russell’s actions, I would maintain the conclusion that Captain
Russell’s decision fell within the range of discretion granted
to captains under these circumstances.

DiMillo, 870 F.2d at

748.
I conclude Captain Russell’s decision is not one “which
nautical experience and good seamanship would condemn as
inexpedient and unjustifiable at the time and under the
circumstances.” Id.

I conclude Namoh, Ltd. is not comparatively

at fault for the second strike.

19

B.

Damages
Having determined that Namoh, Ltd. is not comparatively at

fault for the second strike, I turn now to determining damages.
1.

Mitigation of Damages

BWM argues that Namoh, Ltd. failed to mitigate its damages
by permitting the M/Y NAMOH to travel from Boston to New York
then back to Fairhaven with a damaged propeller.
is in the nature of an affirmative defense.”

“[M]itigation

Nevor v.

Moneypenny Holdings, LLC, 842 F.3d 113, 119 (1st Cir. 2016).
BWM must prove both that Namoh, Ltd.’s conduct was unreasonable
and that it had the consequence of aggravating the harm.
Tennessee Valley Sand & Gravel Co. v. M/V Delta, 598 F.2d 930,
933 (5th Cir. 1979); see also Ellerman Lines, Ltd. v. The
President Harding, 288 F.2d 288, 290 (2d Cir. 1961) (“It is not
fatal to recovery that one course of action, reasonably open but
not followed, would have avoided further injury whereas another,
also reasonable and taken, produced it.”).

As to the first

element, I must decide whether the conduct “falls within the
‘range of reason,’ not whether [the vessel] has chosen the most
prudent course of action.”

Mecom v. Levingston Shipbuilding

Co., 622 F.2d 1209, 1214 (5th Cir. 1980) (quoting Ellerman
Lines, Ltd., 288 F.2d at 290.).
First, as I found above, it was not unreasonable for the
M/Y NAMOH to travel out from Boston to seek repairs.
20

After

having initial discussions about repairing the M/Y NAMOH in
Boston, the decision was made, in large part by Captain Russell,
that the M/Y NAMOH should proceed to a location that had better
facilities and was more adequately equipped to repair a vessel
the size of the M/Y NAMOH.

Captain Russell and the M/Y NAMOH’s

owners were reasonably concerned that BWM did not have the
capacity itself to take the propeller off and that BWM had never
employed a facility previously to take a propeller off that was
the size and weight of the M/Y NAMOH’s propeller.

I conclude

the choice to depart Boston falls within the “range of reason”
granted to the vessel.

Mecom, 622 F.2d at 1214.

Having departed Boston, the prudent and efficient course of
action on this record would have been to proceed directly to
Fairhaven.

The M/Y NAMOH, however, did not proceed directly to

Fairhaven, but instead made her way farther down the coastline
to New York, a destination that was expected to have adequate
capacity to repair the M/Y NAMOH and was thought to be a more
convenient spot from which the owners, their family, and guests
could depart.

Wisely, Namoh, Ltd. does not seek recovery for

the expenses incurred from the tows between Fairhaven from New
York and instead seeks recovery for the costs associated with a
hypothetical tow only from Boston to Fairhaven.
BWM argues that not only would it be unreasonable for
Namoh, Ltd. to claim damages for traveling to New York, but also
21

that the operation of the M/Y NAMOH down to New York, in
particular the period from Sag Harbor to New York, had the
consequence of aggravating the harm.

BWM points to the M/Y

NAMOH’s engine room visual inspection log from September 3,
2011, which shows that as the vessel travelled from Sag Harbor
to New York, the thrust bearing temperatures rose from 107
degrees Fahrenheit to 163 degrees Fahrenheit, as well as to the
testimony of Hill analyzing the log.

As discussed above, I find

that the thrust bearing temperatures did rise as listed in the
log and I credit Captain Russell’s characterization that the
bearing temperatures “spiked” during this part of the journey.
Even if I were — in the absence of Namoh, Ltd.’s decision
not to pursue damages for the extended New York leg of the
journey —required to address whether the vessel mitigated
damages properly when she travelled on from Fairhaven to New
York and then back up to Fairhaven, I conclude that BWM has
failed to meet its burden of showing that this action had the
consequence of aggravating the harm.

Beyond Captain Russell’s

description of the rise in temperature as a “spike,” there is no
credible evidence before me that quantifies either the physical
damage inflicted by the journey or the monetary value of that
alleged damage.

As discussed above, I do not credit Hill’s

attempts to calculate the potential damage incurred on the
voyage to New York.

It is BWM’s burden to produce evidence
22

demonstrating the extent to which the vessel aggravated the
damage on the journey to New York. See Bosnor S.A. De C.V. v.
Tug L.A. Barrios, No. CIV. A. H-81-2460, 1984 WL 1428, at *7
(S.D. Tex. Oct. 1, 1984) (defendants “did not meet their burden
of showing the extent of the loss, and the impact on the scope
of the harm” from plaintiff’s allegedly unreasonable behavior
because their estimate of damages “was pure speculation”);
Sutton River Servs., Inc. v. Inland Tugs Co.,

No. 82-5224, 1984

WL 1462, at *4 (S.D. Ill. Jan. 24, 1984) (defendants failed to
prove failure to mitigate damages because they “presented no
evidence concerning numerous cost factors” needed to determine
the amount to reduce plaintiffs’ damages).

Without sufficient

evidence to gauge the consequences of the increase in
temperature, I conclude that BWM has not met its burden of
proving failure to mitigate damages.7

7

As I found above, I do not adopt the earlier version of the
September 3, 2011 log entries that would show the starboard
engine reaching 950RPMs at 4:00 AM and oil being added fifteen
minutes later. Even if I were to read the log in that manner, I
would still conclude that BWM has failed to meet its burden of
proving failure to mitigate damages.
It is true that “[o]ur
admiralty jurisprudence is especially sensitive to the
unexplained alteration of logbooks” and that “[s]uch alterations
should give rise to a presumption the logbook contained entries
adverse to the vessel’s contentions at trial.” Otal Inv. Ltd.
v. M.V. Clary, 494 F.3d 40, 58 (2d Cir. 2007). Here, however,
as I found above, the earlier entries are still somewhat visible
under the subsequent changes and the subsequent changes appear
to have been made contemporaneously. The Silver Palm, 94 F.2d
754, 762 (9th Cir. 1937) (noting the difference between
alterations made at a later time “with long deliberation” and
23

2.

Repair Damages and Associated Costs

Namoh, Ltd. is entitled to recover damages.
Fernwood, 507 F.2d 1327, 1331-32 (1st Cir. 1974).

Pinto v. M/S
(“The owner

of the damaged vessel is entitled to sufficient damages to put
his vessel into a condition as seaworthy and serviceable as
before the collision.”).

“Other incidental costs paid during

the course of repairs ‘are also fully recoverable if reasonably
incurred.’” Am. S.S. Co. v. Hallett Dock Co., 862 F. Supp. 2d
919, 930 (D. Minn. 2012) (quoting 2 Thomas J. Shoenbaum,
Admiralty and Maritime Law §  14-6 n. 12-n.21 (5th ed. 2011)).
I have found that Namoh, Ltd. may recover its towage
charges and repair costs.

For towage charges, Namoh, Ltd. is

entitled to $11,424.00 for the cost of a hypothetical tow from
Boston to Fairhaven, $1,700.00 for the cost of shifting the
vessel from the floating dock to the travel lift slip at
Fairhaven Shipyard, and $1,644.40 for the cost of the trip and

alterations made contemporaneously “in an original entry, where
haste may explain changes, though even if then, it should [be]
made by leaving the original, under the naval rule forbidding
erasures . . .”). I am able to discern the earlier entries and
therefore can determine that the adverse impact the earlier
entries would have on Namoh, Ltd. would be minimal. Even under
its view of the September, 3, 2011 log, BWM still would not have
shown the extent of the harm suffered on the journey to New
York. The log’s account of the change in temperature and
addition of oil alone, without credible evidence explaining the
significance of these actions, does not demonstrate how much, if
any, damage the M/Y NAMOH suffered from making the trip from Sag
Harbor to New York.
24

tow survey.

For repair costs, Namoh, Ltd. is entitled to

$27,549.60 for the work Fairhaven Shipyard performed on the
starboard propeller and starboard shaft bearings and $52,863.09
for Advanced Mechanical’s travel expenses.

The total

recoverable towage charges and repair costs are $95,181.09.
I have also found that Namoh, Ltd. may recover certain
incidental expenses.

Namoh, Ltd. is entitled to $5,300 for crew

accommodations at Fairhaven, $1,490.12 for Captain Russell’s
hotel accommodations at Fairhaven, $690.80 for Captain Russell
and a crewmember’s trip to Florida to coordinate with vendors on
the repairs, $4,457.99 for rental vehicles, $593.81 for fuel for
the rental vehicles, $5,099.47 for food and provisions for
Captain Russell and the crew, $3,600 for Carleton’s inspection,
$31,055.97 for crew wages in September 2011, and $31,055.97 for
crew wages in October 2011.

The total recoverable incidental

expenses are $83,344.13.
Reasonable overhead charges may also be recovered so long
as they are related to the repair work performed.

U.S. v.

Peavey Barge Line, 748 F.2d 395, 399-400 (7th Cir. 1984).
Namoh, Ltd., however, has not provided sufficient evidence to
support such a nexus and consequently, I will not assess
overhead charges as damages.8

8

Case law regarding operational and overhead expenses suggests
that such expenses should be awarded only if they are linked to
25

I conclude that Namoh Ltd.’s damages in the amount of
$95,181.09 for repair costs and towage charges and $83,344.13
for incidental expenses are reasonable and recoverable.

I will

therefore award Namoh, Ltd. $178,525.22 in damages. 
3.

Florida Repair Damages

I decline to award Namoh, Ltd. damages arising from the
subsequent repairs in Fort Lauderdale invoiced on November 21,
2011.

The only evidence Namoh, Ltd. proffered to support BWM’s

liability for these repairs is the conclusory assertion by
Captain Russell that the reconditioned propeller was not
satisfactory.

Namoh, Ltd. does not appear to have challenged

the quality of the repairs in Fairhaven and was confident enough
with the reconditioning to permit the vessel to proceed to Fort
Lauderdale.

There is insufficient evidence showing technical

problems with the reconditioned propeller that can be related to
the damage incurred at Berth D on August 30, 2011.
Consequently, I conclude that the repairs in Fort Lauderdale are

the repair at issue. See, e.g., U.S. v. Peavey Barge Line, 748
F.2d 395, 499-400 (7th Cir. 1984); Avondale Indus., Inc. v.
Int'l Marine Carriers, Inc., No. CIV. A. 90-4570, 1995 WL 46327,
at *3 (E.D. La. Jan. 13, 1995), aff'd, 69 F.3d 535 (5th Cir.
1995) (“The Court was not made aware of any procedures assuring
that the accuracy of the percentage as to the period of these
repairs. In short, Avondale did not prove that its overhead
figures were accurate as applied to this work performed in
December, 1989, and January, 1990.”). Lord’s conclusory
statement that these costs were linked to the repairs is not
enough.
26

too attenuated from the incident in Boston for Namoh, Ltd. to
recover from BWM.

Marine Office of Am. Corp. v. M/V Vulcan, 891

F. Supp. 278, 289 (E.D. La. 1995) (refusing to award damages for
repairs made eight months after an accident in part because the
expenses “would likely be incurred anyway, and could have been
completed simultaneously with other repairs”).
4.

Detention Damages

I also decline to award Namoh, Ltd. detention damages
because I conclude Namoh, Ltd. has not demonstrated that any
charter profits “have actually been, or may be reasonably
supposed to have been, lost.”

The Conqueror, 166 U.S. 110, 125

(1897). “[D]etention damages are available only upon proof of
loss of commercial profits and not for loss of recreational
use.”

N. Assurance Co. of Am. v. Heard, 755 F. Supp. 2d 295,

296 (D. Mass. 2010).

The loss of commercial profits may include

the loss of charter income from a pleasure boat.

Cent. State

Transit & Leasing Corp. v. Jones Boat Yard, Inc., 206 F.3d 1373,
1376 (11th Cir. 2000) (citing The Conqueror, 166 U.S. at 125)).
For a vessel owner to prove detention damages:
It is not necessary for him to show by direct evidence that
he would have employed his vessel or his property during
the period in such a way that earnings would have accrued
to him. . . . It suffices if he shows a state of facts from
which a court or jury can find that there was an
opportunity for him to do so, and that he would probably
have availed himself of it. The N. Star, 151 F. 168, 175
(2d Cir. 1907).

27

While I do not require that the vessel owner “prove the loss of
a specific charter at a definite time and place” to show there
was an opportunity for charter, I do require a showing that the
vessel was “‘active in a ready market.’”

Skou v. U.S., 478 F.2d

343, 346 (5th Cir. 1973) (quoting Moore-McCormack Lines v. The
Esso Camden, 244 F.2d 198, 201 (2d Cir. 1951)).

I have treated

this showing as necessitating a demonstration here that there
was a realistic potential the vessel would obtain a charter
during the relevant time.
Namoh, Ltd. argues the vessel was active in a ready market,
pointing to the vessel’s charter history in the years both
before and after the accident.

When defining the “ready market”

for chartering a pleasure craft, however, I may take into
consideration practical factors, such as the passing of the
seasons.

Compare The Conqueror, 166 U.S. at 134 (taking

judicial notice of the fact that “the yachting season in our
northern waters practically comes to an end before the 1st of
November”) with Hahlo v. Benedict, 216 F. 303, 308 (2d Cir.
1914) (concluding that a vessel “would have been leased in June
and July, just as she was leased in August” because “[t]he
season was at its very height, and we cannot say that the proof
was speculative in spite of a narrow market”); see generally
Skou, 478 F.2d at 346 (“Demand is not always constant for all
suppliers available.”).

The fact that a vessel was active in
28

the market of mid-summer chartering in New England does not
necessarily mean she was or would be active in the market of
early fall chartering in New England.
Here, the evidence presented to me shows that the M/Y NAMOH
historically was not an active participant in the September and
October charter market, either in New England or more broadly.
Throughout the M/Y NAMOH’s entire charter history, there has
been only one September or October charter, which did not take
place until September 2016.
place in July and August.

The M/Y NAMOH’s 2011 charters took

She had none scheduled for September

or October of that year, and she was not chartered again until
2014.9

Moreover, as discussed above, I credit Captain Russell’s

testimony that during September and October, the M/Y NAMOH
generally travelled down to Florida in part to give the crew a
break and that it was the owners’ plan to take the M/Y NAMOH
down to Florida in September 2011.
The testimony of Homan and Lord does not change my
conclusion.

Homan’s assertion that “charter comes first” may

establish the family’s baseline attitude towards charter when
there is no undue interference with ownership convenience, but

9

I recognize the M/Y NAMOH was not offered for charter in 2012
and 2013 because Frank Homan was dying of an illness. Although
a completely understandable decision, this hiatus illustrates
that owner convenience was the determinative factor in defining
the extent that the M/Y NAMOH functioned as active participant
in the charter market.
29

it does not demonstrate that the M/Y NAMOH was active in the
relevant charter market.

Lord’s testimony on the high

probability of a last minute charter in September 2011 is
unsupported by other evidence.

He testified that a charter

could be booked a week or even a day before departing, but there
is no evidence of the M/Y NAMOH ever being booked on such short
notice and no evidence, beyond Lord’s assertion that I do not
credit, that charters routinely were booked on such short notice
in September or October in New England.

Most importantly, his

testimony is largely belied by the fact that throughout her
entire history, the M/Y NAMOH has only once been chartered in
September.
From this evidence, I cannot determine that charter profits
“have actually been, or may be reasonably supposed to have been,
lost” and therefore conclude that an award of detention damages
would be compensating impermissibly for the “mere inconvenience
arising from an inability to use the vessel for the purposes of
pleasure.”

The Conqueror, 166 U.S. at 125, 133; see also N.

Assurance Co. of Am., 755 F. Supp. 2d at 296.
5.

Prejudgment Interest

Prejudgment interest “will normally be awarded in
admiralty, absent exceptional circumstances.”

Clifford v. M/V

Islander, 846 F.2d 111, 113 (1st Cir. 1988) (per curiam).
“Prejudgment interest is customarily conceived as the short term
30

time value of money; in this sense, it corresponds to the
compensation for the loss of funds until judgment enters and
execution on that judgment is available to a plaintiff.”

In re

ALEX C Corp., No. CIV.A. 00-12500-DPW, 2010 WL 4292328, at *15
(D. Mass. Nov. 1, 2010).
BWM argues that Namoh, Ltd. should recover no prejudgment
interest because its damage claims are unreasonable and
unsupported.

As my conclusions make clear, I have largely

determined otherwise.

Although I do not conclude that detention

damages were warranted in this case, I also conclude that Namoh
Ltd.’s general claim for damages was not unreasonable.
Slupinski v. First Unum Life Ins. Co., 554 F.3d 38, 54 (2d Cir.
2009); Zim Israel Navigation Co., Ltd v. 3-D Imports, Inc., 29
F. Supp. 2d 186, 193 (S.D.N.Y. 1998) (awarding prejudgment
interest after concluding “there is no evidence of unreasonable
delay or dilatory tactics during the course of this lawsuit”).
For its part, Namoh, Ltd. argues that it should recover
prejudgment interest in accordance with Massachusetts law, which
sets prejudgment interest rates at twelve percent.
Laws ch. 231, §  6B.

Mass. Gen.

The goals of prejudgment interest awards in

the federal courts generally, however, are “compensating for the
loss of use of money” and “restoring a party to the condition it
enjoyed before the injury occurred.”

City of Milwaukee v.

Cement Div., Nat. Gypsum Co., 515 U.S. 189, 196 (1995) (internal
31

quotations omitted).

I find that an award at the state

statutory rate here would go beyond those goals and would
constitute a windfall for Namoh, Ltd. for a roughly six-year
period during which the average annual rate for Treasury Bills
has been 0.35%.
I calculate prejudgment interest based on the average
annual rate for Treasury Bills during the prejudgment period
because it is a methodology that “has been found not
unreasonable as an acceptable average for a prejudgment period.”
In re ALEX C Corp, 2010 WL 4292328, at *15 (citing Pimentel v.
Jacobsen Fishing Co., Inc. 102 F.3d 638, 640 (1st Cir. 1996));
see also Central Hudson Gas & Elec. Corp. v. The TUG M/V SCOTT
TURECAMO, 496 F. Supp. 2d 331, 353-54 (S.D.N.Y 2007)
(calculating prejudgment interest based on average annual rate
of Treasury Bills rather than New York’s statutory nine percent
interest rate).

The interest will commence from the date of the

accident, August 30, 2011.

Ryan Walsh Stevedoring Co., Inc. v.

James Marine Servs., Inc., 792 F.2d 489, 493 (5th Cir. 1986)
(“[P]rejudgment interest on repair costs runs from the date of
the accident even though the owner does not pay these costs
until some later date.”); Hobson v. Guido Tugboat & Salvage
Corp., No. CIV.A. 94-10222-RGS, 1997 WL 263735, at *6 n.15 (D.
Mass. May 2, 1997).

I calculate the prejudgment interest on the

damage award compounded annually to be $3,785.20.
32

III. CONCLUSION
For the reasons set forth more fully above, I award
Plaintiff damages in the amount of $178,525.22 together with
prejudgment interest of $3,785.20 based on the average annual
rate compounded annually for Treasury bills from August 30, 2011
to the date of entry of judgment.

The Clerk is hereby directed

to enter judgment on the basis of this Memorandum of Findings of
Fact and Conclusions of Law.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

33