GINGRICH
Filing
147
OPINION AND ORDER denying petitioner's 102 Motion for Partial Summary Judgment. Signed by Judge Claire C. Cecchi on 11/30/2011. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Hon. Claire C. Cecchi, U.S.D.J.
IN RE: GINGRICH
Civil Action No.: 09-1898 (CCC)
OPINION AND ORDER
CECCHI, District Judge.
This matter comes before the Court on Petitioner Kevin Gingrich’s motion for partial summary judgment
pursuant to Fed. R. Civ. P. 56(c). The motion is decided without oral argument. Fed. R. Civ. P. 78(b). The Court has
carefully considered the parties’ submissions and for the following reasons denies Petitioner’s motion.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner owned and lived on a 63-foot yacht, Anxiolytic, which he docked at Lincoln Harbor Yacht Club
(“LHYC”) in W eehawken, New Jersey from May 2006 to December 2008. (Resp. Mem p. 1; Gingrich Dep. p. 43).
Respondent Lincoln Harbor Enterprises (“Lincoln Harbor”) owned and continues to own LHYC. (Resp. Mem. p. 1). On
the morning of December 8, 2009 a fire destroyed Anxiolytic and damaged the adjacent docks at LHYC and a second
vessel, 4 Duzie, owned by Jacob Shekerchi and Rindge Land & Lake, Inc. (Resp. Mem. p. 4).
On this motion for partial summary judgment, Petitioner argues that he has no contractual obligation to
indemnify Respondent for the damage to the docks and the 4 Duzie. He argues that a dockage agreement between the
parties, which contained an indemnification clause, expired more than a month prior to the fire and a new agreement was
not signed. Respondent argues that an implied-in-fact contract with the terms of the prior dockage agreement existed
and the indemnification clause was in place at the time of the fire.
Over the course of Petitioner’s dockage at LHYC, Petitioner and Respondent had entered into four identical
written dockage agreements, the last of which expired on October 30, 2008. (W amser Decl. Exs. B–E). The
indemnification clause in those agreements provided in relevant part that
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The vessel OW NER and the vessel will indemnify, defend and hold harmless LHYC for
the consideration hereinbefore set forth, from any costs, expenses, damages and against
all claims, demands, loss, damage, liability, lawsuits, causes of action, including
judgments and attorneys’ fees, that may be asserted by anyone due to:
(a)
Property loss of any type, property damage due to fire, theft, collision, or property
loss from any other cause to said OW NER’S sails, furniture, equipment, tackle, or
appurtenances, or to any other property contained in or on OW NER’S vessel, or
on the premises of LHYC or to personal property of others on the vessel or LHYC
premises;
....
(c)
Any alleged damage, or loss to marine property, non-marine property or personal
injury caused in part, regardless of how slightly, by vessel OW NER, his agents,
servants, invitee or employees.
(Id. Ex. E).
Janel Vasquez, the dock master at LHYC, was deposed and testified that he filled in an unsigned dockage
agreement and left it in Petitioner’s mailbox several weeks prior to October 30, 2008. (Vasquez Dep. pp. 229–31).
Petitioner stated that he never received that dockage agreement. (Gingrich Dep. p. 48). Petitioner never signed a new
agreement, did not pay a new deposit, and never spoke with LHYC staff about his intention to continue docking at
LHYC. ( Id. pp. 48–49; Vasquez Dep. pp. 229, 244–45). However, Petitioner continued to dock his yacht at LHYC
without objection after the last written agreement expired on October 30, 2008. (Gingrich Dep. pp. 52–53). He testified
that he intended to pay for his dockage after October 30, 2008. (Id. p. 54). Petitioner also testified that he never
negotiated for any modifications to the past agreements or otherwise objected to the terms of the agreements. (Id. pp.
40–42).
In late November 2008 Petitioner moved the Anxiolytic from F Dock to E Dock at the request and with the help
of LHYC staff so that F Dock could be resurfaced. (Id. pp. 49–50;Vasquez Dep. p. 245). Gingrich continued to receive
electricity on the Anxiolytic and intended to pay for it, but had not yet requested to be hooked up to the winter water
supply. (Gingrich Dep. pp. 53–54; Gingrich Aff. ¶¶ 3–4). On November 17, 2008 Gingrich paid an electric bill, which
covered the month of October. (Vasquez Dep. p. 237). LHYC prepared two invoices for Gingrich dated December 1,
2008 for electricity for the month of November. (Id. p. 238).
On April 22, 2009 Petitioner filed a Complaint for Exoneration From or Limitation of Liability. On September
28, 2009 Lincoln Harbor filed its answer and a claim against Petitioner seeking damages. On November 3, 2009
Petitioner filed a counterclaim against Lincoln Harbor for the damage to Anxiolytic. On July 28, 2010 Shekerchi, owner
of 4 Duzie, commenced an action against Lincoln Harbor for damage to his vessel, and on October 1, 2010 Pacific
Indemnity Company (“Pacific”), a subrogee of Shekerchi, also commenced an action against Lincoln Harbor for damage
to 4 Duzie. These subsequent actions were consolidated with the instant action on October 26, 2010.1 Lincoln Harbor
filed an amended claim on December 15, 2010 seeking indemnification from Petitioner for any damages awarded in the
actions brought by Shekerchi and Pacific. Petitioner now brings the pending motion for partial summary judgment on
all claims brought against him by Lincoln Harbor based in contractual indemnification.
II. LEGAL STANDARD
Summary judgment is appropriate if the “depositions, documents, electronically stored information, affidavits
or declarations, stipulations . . . admissions, interrogatory answers, or other materials” demonstrate that there is no
genuine issue as to any material fact, and, construing all facts and inferences in a light most favorable to the non-moving
party, “the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d
860, 864 (3d Cir. 1986).
The moving party has the initial burden of proving the absence of a genuine issue of material fact. See Celotex,
477 U.S. at 323. Once the moving party meets this burden, the non-moving party has the burden of identifying specific
facts to show that, to the contrary, there exists a genuine issue of material fact for trial. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). A fact is “material” if a dispute
about that fact “might affect the outcome of the suit under governing [substantive] law,” and a “genuine” issue exists as
to that fact “if the evidence is such that a reasonable jury could return a verdict for the non[-]moving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court’s role is to determine
whether there is a genuine issue for trial, not to weigh the evidence and decide the truth of the matter. Id. at 249.
III. DISCUSSION
Petitioner argues that because the dockage agreement expired on October 30,2008 and the parties had not
entered into a subsequent written agreement as of December 9, 2008 — the date of the fire — Petitioner has no
contractual obligation to indemnify Respondent in the consolidated actions as a matter of law. (Pet. Mem. pp. 1, 4).
Respondent counters that an implied-in-fact contract existed between the parties incorporating the terms of the latest
1
Nationwide Property & Casualty Insurance Company filed an action against Lincoln Harbor on December 7, 2010 for
damage to 4 Duzie. That action was consolidated with the instant action for discovery and pretrial purposes only on April
5, 2011 and is not at issue on this motion.
written agreement and that the indemnification clause is therefore enforceable. (Resp. Opp. Mem. pp. 7–18).
Petitioner further argues that because the dockage agreement does not unequivocally extend the exculpatory
clause beyond the October 30, 2008 expiration date, construing the contract against the drafter according to maritime
law, the exculpatory clause was unenforceable after October 30 as a matter of law.
Construing all the facts and inferences in a light most favorable to Respondent, the Court finds a genuine issue
of material fact as to whether Petitioner is required to indemnify Respondent for damages awarded in the consolidated
actions.
A. Substantive Law
“The district courts shall have original jurisdiction, exclusive of the courts of the States, of [] [a]ny civil case
of admiralty or maritime jurisdiction . . . .” 28 U.S.C. § 1333(1). “A contract dispute falls within admiralty jurisdiction
if the subject matter of the contract is maritime.” Goodman v. 1973 26 Foot Trojan Vessel, 859 F.2d 71, 72 (8th Cir.
1988) (citing Royal Ins. Co. of Am. v. Pier 39 Ltd. P’ship, 738 F.2d 1035, 1036 (9th Cir. 1984). Dockage/wharfage
agreements are maritime contracts. See id. at 73; see also Royal Ins. Co. of Am. v. Pier 39 Ltd. P’ship, 738 F.2d 1035,
1037 (9th Cir. 1984); Lincoln Harbor Enters., LLC v. M.Y. Diplomat, Civ. No. 08-526(W HW ), 2008 US Dist. LEXIS
95004, at *6 (D.N.J. Nov. 21, 2008); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law §§ 3-10, 5-8 (5th ed.
2011).
“Absent a relevant statute, the general maritime law, as developed by the judiciary, applies.” E. River S.S. Corp.
v. Transamerica Delaval Inc., 476 U.S. 858, 864, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986). Federal maritime contract
law consists of general common law contract principles overlaid with doctrines peculiar to admiralty. See Rederi v.
Commercial Stevedoring Co., 256 F.2d 227, 229–31 (2d Cir. 1958); Schoenbaum, supra, § 5-1; cf. T.N.T. Marine Serv.,
Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 588 (5th Cir. 1983) (applying both general legal principles
and admiralty-specific law on bailments in maritime case).
“General contract law recognizes and enforces ‘implied-in-fact’ contracts.” Luden’s Inc. v. Local Union No.
6 of the Bakery, Confectionary, & Tobacco Workers Int’l of Am., 28 F.3d 347, 355 (3d Cir. 1994) (applying federal law).
Furthermore, under maritime law a maritime contract “need not be in writing unless expressly so required by an
applicable statute.” Great Circle Lines, Ltd. v. Matheson & Co., 681 F.2d 121, 124 (2d Cir. 1982) (internal quotation
marks and citation omitted). See also Goodman, 859 F.2d 71 (interpreting unwritten wharfage agreement without
questioning its validity).
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[G]eneral principles of contract law teach us that when a contract lapses but the parties to the contract
continue to act as if they are performing under a contract, the material terms of the prior contract will
survive intact unless either one of the parties clearly and manifestly indicates, through words or
through conduct, that it no longer wishes to continue to be bound thereby, or both parties mutually
intend that the terms not survive.
28 F.3d at 355–56. See also 17A Am. Jur. 2d Contracts § 18.
Indemnity agreements are generally enforceable in admiralty. Schoenbaum, supra, § 5-21. Under general
maritime law, exculpatory clauses must be clear and unequivocal. See, e.g., Sander v. Alexander Richardson Invs., 334
F.3d 712, 715 (8th Cir. 2003); Edward Leasing Corp. v. Uhlig & Assocs., Inc., 785 F.2d 877, 889 (11th Cir. 1986). In
reviewing exculpatory clauses, the Court will look to the “everyday meaning” of the contract language and will “look
to the contract as a whole to determine whether it unambiguously states the parties’ intentions.” Sander, 334 F.3d at 716.
B. Analysis
First, Respondent has identified specific facts that could lead a reasonable jury to find that the parties had an
implied-in-fact contract. Petitioner continued to dock his boat at LHYC after the latest written agreement expired on
October 30, and LHYC not only permitted continued dockage, but helped Petitioner move his boat to another dock in
the marina to allow for dock maintenance. Petitioner continued to use electricity provided by LHYC and LHYC prepared
invoices for Petitioner’s November electricity use. Petitioner never expressed any intention to leave the marina and in
fact testified that he intended to pay for dockage after October 30. A reasonable jury could find that the conduct of the
parties created an implied-in-fact contract.
Second, pursuant to the general principles of contract law discussed in Luden’s, Inc., a reasonable jury could
find that the material terms of the expired dockage agreement, including the indemnification clause, survived. The parties
had signed four dockage agreements between 2005 and 2007. The agreements contained identical language, including
the indemnification clause. Neither party manifested any wish not to be bound by the terms of the lapsed agreement either
before or after the lapse. Petitioner never negotiated for any modifications to the past agreements or otherwise objected
to the terms of the agreements. A reasonable jury could find that the parties continued to act as if performing under the
terms of a dockage agreement and that neither party manifested a wish not to be bound by the material terms of the
expired agreement. See Luden’s, Inc., 28 F.3d at 355–56. The material terms of the contract include the exculpatory
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clause.
Third, a reasonable jury could find that the indemnification clause clearly and unequivocally requires Petitioner
to indemnify Respondent for the damage caused by the fire on the Anxiolytic in the consolidated actions. The clause
states that vessel owner will indemnify LHYC from “any costs, expenses, and damages and against all claims . . . that
may be asserted by anyone due to” property loss or damage. (Emphasis added). A reasonable jury could find that the
parties clearly intended for Petitioner to indemnify Respondent for any damages awarded in the consolidated actions.
IV. CONCLUSION
THEREFORE, IT IS on this 30 th day of November, 2011
ORDERED that Petitioner’s motion for partial summary judgment is denied [docket entry no. 102].
s/ Claire C. Cecchi
HON. CLAIRE C. CECCHI
United States District Judge
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