F/V MISTY DAWN INC.

Filing 53

Judge Indira Talwani: ORDER entered granting in part and denying in part 45 Motion to Dismiss for Lack of Jurisdiction. See attached Order. (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

IN THE MATTER OF THE COMPLAINT
OF F/V MISTY DAWN, INC., as Owner
Of the Vessel F/V MISTY DAWN for Exoneration
From or Limitation of Liability

Civil Action No. 1:13-cv-12367

ORDER
November 3, 2014
TALWANI, D.J.
I.

Introduction
The instant action was brought by Petitioner F/V Misty Dawn, Inc. seeking exoneration

from or limitation of liability pursuant to 46 U.S.C. § 30501, et seq. in connection with alleged
injuries sustained by Claimant and Third Party Plaintiff William Albert, Jr. while serving as a
crew member of the F/V MISTY DAWN. Presently before the court is Third Party Defendant
Ulven Companies’ Motion to Dismiss for Lack of Subject Matter Jurisdiction [#45]. For the
following reasons, this motion is ALLOWED IN PART and DENIED IN PART.
II.

Background
Third Party Plaintiff Albert alleges that on or about November 3, 2012, while he served

as a seaman and member of the crew of the F/V MISTY DAWN, and while the F/V MISTY
DAWN was in navigable waters and Albert was performing his duties with due care, Albert
sustained severe personal injuries when the swivel eye attached to the ship’s steel towing block
broke and the security/safety chain failed. Albert further alleges that this caused the block to
whip across the deck, striking Albert in the lower chest/abdomen and causing him severe injuries
with lifelong implications. According to Albert, Ulven Companies (“Ulven”) manufactured the

block/safety chain that was aboard the F/V MISTY DAWN on or about November 3, 2012.
Based on these allegations, Albert asserts the following causes of action in his third-party
complaint against Ulven: (1) negligence, (2) breach of the implied warranty of merchantability,
and (3) violations of Mass. Gen. Laws. ch. 93A §§ 2, 9.
III.

Discussion
In support of its motion to dismiss, Ulven argues that Albert’s allegations are in essence

Massachusetts-based liability claims that are preempted by federal maritime law. Ulven also
argues that Albert’s claims are insufficient because Albert has not established a nexus between
the facts alleged in the complaint and Massachusetts.
A.

Preemption

Albert’s negligence and warranty claims are not preempted, but are recognized by federal
maritime law. First, it is well-established that negligence actions against manufacturers based on
products liability claims are recognized in admiralty law. See East River S.S. Corp. v.
Transamerica Delaval, Inc., 476 U.S. 858, 865 (1986) (“We join the Courts of Appeals in
recognizing products liability, including strict liability, as part of the general maritime law.”). 1
Second, warranty claims may also fall under admiralty law where, as here, they sound in tort.
See Pietrafesa v. Bd. of Governors for Higher Educ., 846 F. Supp. 1066, 1070–73 (D.R.I. 1994)
(“[C]laims based upon warranty theories constitute maritime torts and are . . . governed by the
general maritime law.”); Complaint of Am. Export Lines, Inc., 620 F. Supp. 490, 512 (S.D.N.Y.
1985) (“[T]here is significant authority for the proposition that actions on implied warranty of

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Admiralty jurisdiction over these tort claims exists as long as the situs and status tests are met,
i.e. the negligence (1) took effect on navigable waters, and (2) bore a significant relationship to
traditional maritime activity. See Exec. Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249,
266–68 (1972).
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fitness and merchantability may ‘fly the colors of tort, rather than contract, and sail into the
admiralty harbor.’” (quoting Ohio Barge Line, Inc. v. Dravo Corp., 326 F. Supp. 863, 866 (W.D.
Pa. 1971))); cf. E. River S.S. Corp., 476 U.S. at 865–875 (holding that, under admiralty law, “a
manufacturer in a commercial relationship has no duty under either a negligence or strict
products-liability theory to prevent a product from injuring itself”). Accordingly, Albert has
properly pled federal maritime law claims based on negligence and breach of the implied
warranty of merchantability.
Whether federal maritime law preempts Albert’s claim under Mass. Gen. Laws ch. 93A
presents a closer question. The court, however, need not reach this question because, as
explained below, Albert fails to sufficiently plead such a claim in the first instance.
B.

Insufficient Nexus to Massachusetts

As explained above, Albert’s negligence and warranty claims are recognized by federal
maritime law; thus, they do not require a nexus to Massachusetts. Albert’s claim under Mass.
Gen. Laws ch. 93A, however, is a state-based claim requiring that any actions or transaction
constituting a violation of that statute must have “occurred primarily and substantially within the
commonwealth.” Mass. Gen. Laws. ch. 93A, § 11. To satisfy this requirement, the court must
determine whether ‘the center of gravity of the circumstances that give rise to the claim is
primarily and substantially within the Commonwealth.’” Kuwaiti Danish Computer Co. v.
Digital Equip. Corp., 781 N.E.2d 787, 799 (Mass. 2003).
In his third party complaint, Albert alleges no facts establishing that the actions or
transactions underlying his claim “occurred primarily and substantially within the
commonwealth,” Mass. Gen. Laws. ch. 93A, § 11. Nor does he argue that such a nexus exists.
See Claimant Opp’n Third Party Def. Mot. Dismiss Lack Subj. Matter Juris., 6 [#52].

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Accordingly, the court dismisses Albert’s Chapter 93A claim without prejudice. See Evergreen
Partnering Grp. v. Pactiv Corp., No. 11-10807, 2014 WL 304070, at *1 n.2, 5–6 (D. Mass.
January 28, 2014).
IV.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss is ALLOWED IN PART and

DENIED IN PART. Count III of Albert’s Third Party Complaint [#41-1] is hereby dismissed
without prejudice.
IT IS SO ORDERED.
Date: November 3, 2014

/s/ Indira Talwani
United States District Judge

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