Western Towboat Company v. Vigor Marine LLC
Filing
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ORDER RE: MOTIONS FOR SUMMARY JUDGMENT. The Court GRANTS IN PART AND DENIES IN PART 39 Vigor's motion and DENIES 42 Western's motion. Western's claim for declaratory judgment and Vigor's counterclaim for maritime negligen ce, to the extent it seeks prospective determinations of liability under the NMSA, are DISMISSED for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12 (h)(3); Summary judgment is DENIED on parties' cross-claims for breach of contract; Summary judgment is GRANTED on Vigor's counterclaim for maritime negligence. Signed by Judge Ricardo S. Martinez. (PM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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WESTERN TOWBOAT COMPANY,
Plaintiff,
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No. C20-0416-RSM
ORDER RE: MOTIONS FOR
SUMMARY JUDGMENT
v.
VIGOR MARINE, LLC,
Defendant.
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I.
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INTRODUCTION
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This matter comes before the Court on parties’ cross-motions for summary judgment.
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Plaintiff Western Towboat Company (“Western”) moves for summary judgment on all claims,
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Dkt. #42, and Defendant Vigor Marine, LLC (“Vigor”) moves for partial summary judgment
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on its counterclaim for general maritime negligence and parties’ cross-claims for breach of
contract. Dkt. #39. The Court finds oral argument unnecessary to resolve the issues. Having
considered parties’ motions, responses, replies, and the declarations and exhibits attached
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thereto, the Court GRANTS IN PART AND DENIES IN PART Vigor’s motion and DENIES
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Western’s motion as set forth below.
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//
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 1
II.
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A. The Drydock
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BACKGROUND
The Drydock YFD-70 (“The Drydock”) was a three-section steel structure constructed
in 1945. Its center section ran 368 feet long and 118 feet wide, with two end sections each 80
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feet long and 118 feet wide. With both end sections attached, the total length of the vessel was
528 feet. The YFD-70 was one of three drydocks in its class, the others being the YFD-69 and
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the YFD-71. On April 14, 2016, Vigor sold the Drydock to Amaya Curiel Corporation
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(“Amaya Curiel”). Dkt. #42-12 at 8. Amaya Curiel runs a shipyard in Mexico that repairs and
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scraps vessels. Id. at 9. Vigor contracted Western for towage of the Drydock from Seattle,
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Washington to Ensenada, Mexico using the tugboat OCEAN RANGER under the command of
Captain Stephen McGavock. Western was aware prior to the voyage that Vigor sold the
Drydock to Amaya Curiel for use as scrap. See Dkt. #42-17 at 4.
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Before the voyage, Vigor prepared the Drydock for towing with a pre-tow suitability
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survey report conducted by Captain Richard Shaw, a marine surveyor with Bowditch Marine,
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Inc. (“the Bowditch Report.”). The Bowditch Report, dated October 18, 2016, recommended
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that the Drydock be towed in its extended configuration, with bow and stern sections attached.
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However, guidance from the U.S. Navy titled “General Information and Operating Manual”
recommends towing the family of drydocks YFD-68, YFD-69, YFD-70, and YFD-71 with bow
and stern sections detached and docked on the center section for towing. Dkt. #42-8 at 8 (stating
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that the dock “has been designed to facilitate towing at sea. When towed, the end sections are
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stowed on the center section.”). The Navy’s manual clarifies that its contents “are for
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information and guidance only” as opposed to required operating procedure. Id. at 7.
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//
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 2
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The Bowditch Report concluded that the Drydock was “appropriately prepared and
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rigged without incident, lashed and secured in apparent good order, and conforms with normal
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custom and practice for towage of a Marine Industrial Dry Dock Platform from Seattle,
Washington for a Coastal Voyage to Ensenada, Mexico via the Puget Sound, the Straits of Juan
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de Fuca and then proceeding south.” Dkt. #42-10 at 21. However, Western’s expert witness
notes that photographs taken at the time of the survey, but not included in the Bowditch Survey,
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showed more significant corrosion than the photographs in the survey report. Dkt. #42-6 at 14.
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Captain Shaw declares that at the time he surveyed the Drydock, Vigor did not inform him that
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(1) the original Navy design for open ocean tow was that its two end sections would be detached
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from the center section and loaded onto the center section for tow; (2) Heger Drydock had
recommended to Vigor that the YFD-69 be towed disassembled from Portland to Seattle; (3)
Vigor’s sale contract to Amaya Curiel required carriage to Ensenada in detached form, on a
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heavy-lift ship; and (4) that Vigor had performed an ultrasonic gauging in 2013 showing
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significant wastage. Dkt. #42-24 at 2. Vigor also does not dispute that it failed to install a flood
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alarm on the Drydock, which was a requirement under the U.S. Navy Tow Manual for dead
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ship tows. See Dkt. #42-13 at 6 (“All unmanned tows shall be equipped with flooding alarms.
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Flooding alarms indicate to the towing ship that there is a problem with the tow, allowing
corrective action to be taken before the tow sinks.”).
In addition to noting the conditions of the Drydock, the Bowditch Report also set forth
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recommendations for the tow that were provided to Western’s Port Captain, Russell
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Shrewsbury, and Captain McGavock. Dkt. #40-3 at 7-8. The Bowditch Report specifically
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required that the OCEAN RANGER “shall avoid heavy head or beam seas (greater than 8-10
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ft.) to avoid pitching or rolling and ensure that seamanship techniques are employed to
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 3
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minimize the effects of head seas and rolling upon [the Drydock].” Id. at 7 (emphasis added).
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Furthermore, the Bowditch Report required that the OCEAN RANGER “is not to proceed from
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any safe port or sheltered waters during the voyage without first determining that reasonable
weather conditions (less than Force 6) are predicted along his intended track, nor is he to
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proceed at speeds excessive for the prevailing weather . . . .” Id. (emphasis added). Western
accepted and incorporated the recommendations in the Bowditch Survey into its Tow Plan,
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although it revised the wind direction condition from “less than Force 6” to the slightly higher
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“20-25 knots” in a Tow Plan Amendment. Dkt. #40-4 at 4.
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B. Voyage and Sinking of the Drydock
On October 4, 2016, Western and Vigor entered into an agreement (“the Towing
Agreement”) setting forth parties’ obligations and agreed-upon rates for the Drydock tow. Dkt.
#40-1 (identifying Vigor as “Customer” and Western as “Owner.”). The Towing Agreement
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provided that in the event the tow became “totally lost, the Tug shall be released from
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performance under this agreement.” Id. at 5. The Towing Agreement further provided that
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“Customer [Vigor] shall pay Owner [Western] the lump sum hire identified above, which shall
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be fully and irrevocably earned upon commencement of services, even if the Tug, Tow and/or
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cargo is lost and/or the voyage is delayed, frustrated or cancelled, except to the extent loss,
delay, frustration, or cancellation arises from the negligence or willful misconduct of Owner
[Western].” Id. at 3 (emphasis added).
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After waiting for a storm to clear, the tug and tow left Seattle the morning of October
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17, 2016. The ship’s log reports that between October 19 and 20, near the border of California
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and Oregon, the tug encountered southerly winds within the 25 knots range and waves between
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six and nine feet. Dkt. #42-19 at 5-6. The tug proceeded at a speed between 2 and 4 knots. Id.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 4
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The tug again faced strong winds of 30 to 40 knots from approximately 8:00 pm on October 23
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until 12:00 pm on October 24. Id. at 9-10. On October 25, 2016, at 2:30 pm, Western
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discovered that the Drydock had a port bow list. Id. at 11. As the list increased, Western’s
crew agreed that the dock appeared to be taking on water. Dkt. #42-6 at 8. Western altered
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course to San Francisco Bay for the next 4.5 hours to seek assistance and minimize the ingress
of water. However, by late afternoon, the port listing had continued and was accompanied “by
a forward trim sufficient to bring the forward port pontoon deck awash.” Id.
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After communicating with the United States Coast Guard (“USCG”), Western
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concluded it was unsafe to enter San Francisco Bay in the event the Drydock sank, which would
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create a major navigational hazard in the San Francisco Bay Area. See Dkt. #42-20 at 9 (Email
from Western’s owner, Bob Shrewsbury, to Vigor’s Daniel Keen on October 25 at 6:26 pm
stating, “We want to have a look in the daylight to make sure we are safe to transit the San
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Francisco Bar Crossing. We do not want the Dock to sink where it would have to be a Major
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Salvage job. If it goes down in 1500 feet of the coast is one thing. But we don’t want it on the
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Bar entrance or Harbor.”). Keen replied that he would run calculations through flooding
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analysis software to determine whether the Drydock would remain afloat. Dkt. #42-20 at 6. He
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agreed that Western should keep the tow in deep water. Id. At 6:49 pm, Western’s Russell
Shrewsbury informed Keen that the Drydock’s forward port corner was awash. Dkt. #42-20 at
6. Approximately three hours later, Keen reported the tank numbers. Keen recalls that, after
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completing the calculations, he did not believe there was more than a fifty percent chance that
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the tow would sink. Dkt. #42-14 at 158:17-23.
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According to the ship’s log, at 7:00 pm on October 25, Western’s office “directed vessel
to head for Monterey Bay due to tow’s conditions.” Dkt. #40-5 at 10. At that point, Captain
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McGavock had been monitoring the tow for “several hours” and observed a “deteriorating
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stability” that he determined made it “unsafe to head into San Francisco Bay for repairs.” Dkt.
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#42-23 at 29. At that point, Captain McGavock made the decision to sail away from the
termination of San Francisco Bay’s marine traffic lanes and “plotted a course for Pioneer
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Canyon in case we had to abandon the sinking tow.” Id.
According to Keen, it was Western’s idea to proceed to Monterey. Dkt. #42-14 at 160:8-
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11; see also id. at 162:24-25; 163:1 (“Western actually are the ones who recommended
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Monterey and also recommended a contact for shoreside support.”). Emails between Western’s
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Bob Shrewsbury and Vigor’s Paul Torrey corroborate Keen’s account that Western proposed
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the idea and decided to proceed into Monterey Bay. See Dkt. #42-20 at 5 (Message from
Western’s Shrewsbury to Keen dated October 25, 2016 at 16:07, stating “We are talking with
the Coast Guard in San Francisco to see if they will let us come into San Francisco or not. So
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if not the next place that may be possible would be to pull into Monterey Bay where we could
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find a lee from the wind and sea.”); see also Dkt. #42-20 at 21 (Internal vigor email from Paul
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Torrey to Robert Eske on October 25 at 8:04 pm, stating “The tug has decided they want to
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head to Monterey. They are going to essentially maintain position tonight but keep course to
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Monterey making little headway. Then in the AM when we have light, we can get a better view
of the situation and determine if it is safe to enter the harbor.”). In the USCG Incident Report,
Captain McGavock confirmed that he made the decision to head away from San Francisco Bay
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and plotted a course for Pioneer Canyon in case he had to abandon the sinking tow. Dkt. #42-
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23 at 29. Despite Western directing the OCEAN RANGER’s course towards the Marine
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Sanctuary, Bob Shrewsbury testified that he “[w]asn’t aware of how close he [Captain
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McGavock] was to the sanctuary, if he was in one . . . .” Dkt. #40-8 at 12.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 6
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Following communications between USCG, Western, and Vigor management, USCG
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approved the tow to enter Monterey Bay for inspections and/or dewatering. Dkt. #42-20 at 4.
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The USCG’s Captain of the Port Order 16-035 notified Western that should it choose to enter
Monterey Bay, Western was required to hire a commercial salvage company; have salvage
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resources on-scene in Monterey Bay prior to arrival; have the salver conduct an assessment of
the tow’s hull to identify the source of the flooding; and submit a plan to dewater flooded spaces
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and means to secure water and weather tight hull before proceeding. Id. The tow proceeded
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with caution towards Monterey Bay. With night approaching, the OCEAN RANGER decided
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to stay in deeper water and monitor the tow during the night, then proceed into Monterey Bay
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in daylight. Heavy fog rolled in at 10:30 pm and made it difficult to observe the condition of
the Drydock. Dkt. #42-23 at 30. At this point, the tow had developed a 40-degree port list and
had approximately 10-12 feet of freeboard left on the port wing wall. Captain McGavock held
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a safety meeting at 11:00 pm to discuss the process of releasing the tow if required. Dkt. #40-6
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at 3. At 12:30 am, Captain McGavock discerned that only 5 feet of freeboard remained. Id.
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At 2:00 am on October 26, 2016, the fog lifted and Captain McGavock witnessed the
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port section of the wing wall beginning to submerge. Dkt. #42-23 at 30. At 2:10, the Drydock
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capsized and the OCEAN RANGER released the tow line. Id. At 3:05, the Drydock sank 31
nautical miles southwest of Half Moon Bay, California, approximately .92 nautical miles inside
the Monterey Bay Marine Sanctuary. Dkt. #42-19 at 12; Dkt. #42-23 at 3. OCEAN RANGER
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notified Bob Shrewsbury that the Drydock “fully sank at 0305. Position 37* 21.0N 123* 06.6W
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in approximately 500 fathoms. Coast Guard San Francisco gave us permition [sic] to leave
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scene. Headed for Seattle.” Dkt. #42-20 at 7 (email dated October 26, 2016, 3:13 am from
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Captain McGavock to Bob and Russ Shrewsbury). In its incident investigation report on the
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Drydock’s sinking, USCG concluded that “the initiating event leading up to the casualty
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occurring was the unknown flooding that occurred onboard the vessel leading it to list and
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eventually sink while being towed off the coast of California.” Dkt. #42-23 at 3. USCG
likewise determined that it was “unknown if the flooding occurred because of some sort of
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damage or if material fatigue led to some sort of equipment failure leading to the ingress of
seawater into the hull of the vessel.” Id.
C. NOAA Penalty Assessment
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In November 2016, the U.S. National Oceanic and Atmospheric Administration
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(“NOAA”) informed Vigor of its determination that the Drydock sank .92 miles within the
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Monterey Bay National Marine Sanctuary (“Marine Sanctuary”). Dkt. #40-12 at 3. Under the
National Marine Sanctuaries Act (“NMSA”), it is unlawful for any person to “destroy, cause
the loss of, or injure any sanctuary resource managed under law or regulations for that
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sanctuary.” 16 U.S.C. § 1436(1). Any person who destroys, causes the loss of, or injures any
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sanctuary resource is liable to the United States for response costs and damages resulting from
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the destruction, loss, or injury, and any interest on that amount. 16 U.S.C. § 1443(a)(1). NOAA
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may also levy a civil penalty for a violation under the NMSA. 16 U.S.C. § 1437. For purposes
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of cooperating with NOAA to reduce the potential civil penalty, Vigor and Amaya Curiel hired
a research vessel to locate the wreckage of the Drydock. Dkt. #40-13 at 2. In a letter dated
January 19, 2021, NOAA advised Vigor, Western, and Amaya Curiel of their liability under
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the NMSA for damages arising from the Drydock’s sinking in the Marine Sanctuary and invited
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them to “work cooperatively” with NOAA to complete an injury assessment, develop
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restoration actions, and assist with restoring injured sanctuary resources. Id. at 4.
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On March 16, 2020, Western filed this action against Vigor alleging breach of maritime
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contract to recover the $187,462.01 Vigor owes Western for its services under the Towing
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Agreement. Dkt. #1 at 6. In addition to its breach of contract claim, Western seeks a declaratory
judgment that Western was not responsible for the sinking of the Drydock in the Marine
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Sanctuary, thereby exculpating it from liability to the United States in any forthcoming
enforcement action under the NMSA. Id. at ¶¶ 24-26. Vigor counterclaims for breach of
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maritime contract based on Western’s alleged failure to render reasonable assistance in the
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event the Drydock became “disabled . . . or otherwise unable to continue the voyage,” causing
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Vigor and its insurers to expend considerable sums in efforts to cooperate with NOAA and
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creating potential liability to the United States under the NMSA. Dkt. #15 at ¶¶ 36-38. Vigor
also counterclaims for general maritime negligence based on Western’s failure to exercise
reasonable care in towing the sinking drydock into the Marine Sanctuary, and seeks unjust
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enrichment for expenses Vigor incurred through cooperation with NOAA to minimize the
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potential civil penalty. Id. at ¶¶ 33-35, 40-45.
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On April 29, 2021, parties filed cross-motions for summary judgment. Western moves
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for summary judgment on all its claims against Vigor and all of Vigor’s counterclaims against
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Western. Dkt. #42. Vigor moves for partial summary judgment on its counterclaim for general
maritime negligence and parties’ cross-claims for breach of contract. Dkt. #39.
III.
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DISCUSSION
A. Legal Standard
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Summary judgment is appropriate where “the movant shows that there is no genuine
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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
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R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, (1986). Material facts
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 9
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are those which might affect the outcome of the suit under governing law. Id. at 248. In ruling
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on summary judgment, a court does not weigh evidence to determine the truth of the matter,
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but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, Inc., 41
F.3d 547, 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & Meyers, 969
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F.2d 744, 747 (9th Cir. 1992)).
On a motion for summary judgment, the court views the evidence and draws inferences
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in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Sullivan v.
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U.S. Dep’t of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). However, the non-moving party
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must make a “sufficient showing on an essential element of her case with respect to which she
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has the burden of proof” to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Where the non-moving party fails to properly support an assertion of fact or
fails to properly address the moving party’s assertions of fact, the Court will accept the fact as
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undisputed. Fed. R. Civ. P. 56(e). As such, the Court relies “on the nonmoving party to
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identify with reasonable particularity the evidence that precludes summary judgment.” Keenan
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v. Allan, 91 F.3d 1275, 1278–79 (9th Cir. 1996) (quotation marks and citations omitted). The
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Court need not “comb through the record to find some reason to deny a motion for summary
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judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001).
B. Unsworn Expert Declarations
As an initial matter, Vigor moves to exclude Western’s expert declarations because they
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are unsworn. Dkt. #47 at 7. Vigor is correct that unsworn expert reports prepared in compliance
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with Rule 26(a)(2) do not qualify as affidavits or otherwise admissible evidence for purposes
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of Fed. R. Civ. P. 56 and may be disregarded when ruling on a motion for summary judgment.
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Wineland v. Air & Liquid Sys. Corp., No. C19-0793RSL, 2021 WL 843166, at *1, n.2 (W.D.
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Wash. Mar. 4, 2021). However, at the summary judgment stage, the Ninth Circuit applies a
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double standard to the admissibility requirement. The movant’s evidence in support of a motion
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for summary judgment must be admissible in both form and content. Canada v. Blains
Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987). The non-movant’s evidence offered in
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opposition to a motion for summary judgment may be admissible so long as the contents are
admissible—even if the form is inadmissible. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th
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Cir. 2003); see also Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to
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support or dispute a fact cannot be presented in a form that would be admissible in evidence.”).
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Courts in this district have considered unsworn reports, even if not in evidentiary form, where
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the moving party “has not raised a substantive challenge to the authenticity of the reports or the
predicted trial testimony” of the experts. Wineland, 2021 WL 843166, at *1, n.2.
Given that parties have filed cross-motions for summary judgment, the Court will
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consider Western’s unsworn expert declarations to determine if Western has raised a material
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dispute of fact to preclude summary judgment on Vigor’s motion.
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C. Claims Lacking Subject Matter Jurisdiction
Before proceeding to analyze the merits of parties’ summary judgment motions, the
Court recognizes two discrete issues raised in the dispositive motions: (1) parties’ liability for
Western’s services rendered under the Towing Agreement; and (2) parties’ future liability to
the United States under the NMSA for damages to the Marine Sanctuary. These issues are
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conflated throughout the briefing, with both sides arguing that one party’s negligence
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discharges the other from potential liability to NOAA under the NMSA. Although Vigor and
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Western are understandably eager to release themselves from potential claims brought by
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NOAA given the specter of astronomical damages and a civil penalty, this Court must be
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 11
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mindful of whether it has jurisdiction to grant such relief. For the reasons set forth below, the
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Court is not persuaded that it maintains subject matter jurisdiction in this private maritime
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contract dispute to resolve either party’s future liability to the United States under the NMSA.
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“[F]ederal courts are required sua sponte to examine jurisdictional issues such as
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standing.” B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). Federal
Rule of Civil Procedure 12(h)(3) provides that a court may raise the question of subject matter
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jurisdiction, at any time during the pendency of the action, even on appeal. Snell v. Cleveland,
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Inc., 316 F.3d 822, 826 (9th Cir. 2002) (citing Summers v. Interstate Tractor & Equip. Co., 466
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F.2d 42, 49–50 (9th Cir. 1972)). Here, Vigor and Western seek to use this private breach of
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contract action as a vehicle to resolve their future liability to NOAA under the NMSA,
notwithstanding the fact that NOAA has not yet issued a penalty assessment and NOAA is not
a party to this dispute.1
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Western seeks a declaratory judgment exculpating it from liability under the NMSA
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before NOAA has sought recovery of any damages or penalty from the parties. Dkt. #1 at ¶¶
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23-26. Specifically, Western seeks release from its NMSA liability under the Declaratory
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Judgment Act, requesting that the Court declare that Western “is not liable to Vigor, or through
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Vigor to the United States, for the sinking of the Drydock and that any and all liability for the
sinking . . . lies solely with Vigor.” Dkt. #1 at ¶ 25. Westerns further requests that the Court
declare “that Western has no liability to the United States concerning the sinking of the Drydock
and, in the event the United States should assert a claim or bring an action against Western
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While Vigor previously moved to stay this case pending NOAA’s issuance of its penalty assessment,
see Dkt. #31, the Court finds that NOAA’s completion of its penalty assessment would not resolve all
of the jurisdictional issues identified below.
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concerning the sinking of the Drydock, that Vigor must fully indemnify and defend Western
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against such action by the United States.” Id. at ¶ 26. Likewise, Vigor’s counterclaim for
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maritime negligence seeks to hold Western liable not only for expenditures Vigor already made
related to the Drydock’s sinking, but for any future claims brought by the United States under
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the NMSA. See Dkt. #14 at ¶ 35 (“Said negligence may have created or may create liability to
third parties, including the United States, for which Western should be liable.”).
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Courts regularly resolve liability between towers and the owners of a tow where
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damages resulted in injury to a third party. See, e.g., Dixilyn Drilling Corp. v. Crescent Towing
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& Salvage Co., 372 U.S. 697 (1963) (Considering liability between barge tower and offshore
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drilling barge owner to third parties’ bridge after barge collided with bridge while being towed).
Here, however, the Drydock’s sinking in a national marine sanctuary triggered liability to the
United States under a federal environmental statute with its own liability scheme. See United
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States v. M/V Miss Beholden, 856 F. Supp. 668, 670 (S.D. Fla. 1994) (holding that the NMSA
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is a strict liability statute). As set forth below, this Court finds several bases under which it
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lacks subject matter jurisdiction to resolve parties’ prospective liabilities to NOAA under the
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NMSA.
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As an initial matter, the fact that NOAA has not yet taken any final action, such as
issuing the penalty assessment or bringing an enforcement action, presents issues with ripeness
and finality.
Ripeness seeks to “prevent the courts, through avoidance of premature
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adjudication, from entangling themselves in abstract disagreements over administrative
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policies, and also to protect the agencies from judicial interference until an administrative
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decision has been formalized and its effect felt in a concrete way by the challenging parties.”
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Abbot Laboratories v. Gardner, 387 U.S. 136, 148–49 (1967). In the interest of achieving both
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 13
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aims, courts consistently reject efforts by parties to obtain preemptive relief from liability under
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federal environmental statutes before the agency has taken a final action. See Pac. Resins &
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Chemicals Inc. v. United States, 654 F. Supp. 249, 252 (W.D. Wash. 1986) (collecting cases
under Comprehensive Environmental Response, Compensation and Liability Act of 1980
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(“CERCLA”), the Resource Conservation and Recovery Act, and the Clean Water Act.
Here, the Court finds that NOAA has not taken any final action such that parties’ claims
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are ripe for review. Although NOAA’s letter dated January 21, 2021 informs Vigor, Western,
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and Amaya Curiel of their liability under the NMSA, courts have found that similar notice
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letters that required no action from parties and merely offered the opportunity to voluntarily
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cooperate in remediation efforts fell short of final agency action. Pac. Resins, 654 F. Supp. at
251; see also D’Imperio v. United States, 575 F. Supp. 248, 252–53 (D.N.J. 1983) (“[T]he
power of the EPA to seek the institution of a liability suit would constitute agency action, but
15
the notice letter is far short of a final decision that the Government undertake such a suit.”).
16
For these reasons, the Court finds that any ruling on parties’ prospective liabilities under the
17
NMSA, before NOAA has taken any final agency action as to damages or penalties, would
18
amount to “premature adjudication.” Abbot Laboratories, 387 U.S. at 148–49. Accordingly,
19
20
21
22
Western’s declaratory judgment claim and Vigor’s maritime negligence claim, to the extent it
seeks to absolve Vigor from future liability under the NMSA, lack ripeness and finality.
Relatedly, parties’ claims seeking determinations of future liability under the NMSA
23
present standing issues. Pursuant to Article III of the U.S. Constitution, federal courts are courts
24
of limited jurisdiction, hearing only live “cases” and “controversies.” Lujan v. Defenders of
25
Wildlife, 504 U.S. 555, 559 (1992); U.S. Const. art. III, § 2. To satisfy the case-or-controversy
26
requirement, the plaintiff must establish “(1) [A]n ‘injury in fact’ that is (a) concrete and
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 14
1
particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly
2
traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely
3
4
speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000).
5
6
7
Because NOAA has not taken any final action, Western can only assert a speculative
injury: that NOAA may seek damages from Western and/or name it as a defendant in a future
8
lawsuit, and that it may face a contribution suit brought by Vigor or other parties. At this time,
9
it remains unclear at what point NOAA will issue any penalty, whether it may bring any
10
enforcement action against parties, and how Vigor’s cooperation thus far will be factored into
11
12
13
14
any forthcoming penalty. Indeed, as Western maintained in its briefing opposing Vigor’s
motion to stay, NOAA has provided no clear timeline on when its penalty assessment will be
complete and whether it may seek damages from one or all parties involved in the Drydock’s
15
sinking. See Dkt. #35 at 4 (“This Court should not stay these proceedings while the parties
16
await some indefinite and unknown duration of time for NOAA’s ‘penalty assessment’ . . . .”).
17
For the same reasons, Vigor’s maritime negligence claim, to the extent it seeks to absolve Vigor
18
of future liability under the NMSA, is likewise hypothetical and speculative. See Pac. Resins,
19
20
21
22
654 F. Supp. at 251 (plaintiff lacks standing where “no liability [under CERCLA] has yet been
determined and the possibility of future liability is insufficient for standing”).
Finally, even if NOAA had completed its penalty assessment such that parties’ liability
23
under the NMSA and the final amount of that liability were known, the Court is not persuaded
24
that it has jurisdiction under the Declaratory Judgment Act (“DJA”) or maritime negligence law
25
to grant the relief parties request. The DJA, on its own, does not provide an independent basis
26
for jurisdiction over federal environmental laws. See Pac. Resins, 654 F. Supp. at 254.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 15
1
Likewise, although Vigor extensively briefs principles of maritime negligence as a basis for
2
holding Western solely liable for a future NMSA penalty, the issue of negligence is immaterial
3
4
to liability under the NMSA. See Deaton v. U.S. Dep’t of Commerce, Case No. 86-1732-CIVMARCUS, (FL.S.D. Jan 31, 1989) (“Conspicuously absent from the statute’s enforcement
5
6
7
provision are terms like negligently, recklessly, knowingly, purposefully, or any others which
would denote a culpability requirement.”). In effect, parties seek resolution of their liabilities
8
under the NMSA, despite the fact that the NMSA is not a cause of action in this lawsuit. Indeed,
9
NOAA is not even a named party. Given that the NMSA delineates its own liability scheme, it
10
is under this scheme that parties’ liabilities for damage to the Marine Sanctuary must be
11
12
13
14
evaluated—not the patchwork of maritime law and negligence principles set forth in parties’
briefing. See 16 U.S.C. § 1443 (setting forth elements of liability and defenses); see also United
States v. Great Lakes Dredge & Dock Co., 259 F.3d 1300, 1307 (11th Cir. 2001) (owners and
15
operators of vessels causing injury to Marine Sanctuaries are held strictly, jointly and severally
16
liable to fulfill the remedial purpose of the NMSA).
17
For these reasons, the Court concludes that parties’ claims seeking preemptive relief
18
from liability to the United States under the NMSA lack ripeness, standing, and a basis for
19
20
21
22
23
24
25
26
jurisdiction. Pursuant to Fed. R. Civ. P. 12(h)(3), the Court dismisses for lack of subject matter
jurisdiction (1) Western’s claim for declaratory judgment; and (2) Vigor’s counterclaim for
maritime negligence, to the extent it seeks prospective determinations of liability under the
NMSA.
D. Breach of Maritime Contract
Both parties move for summary judgment on their claims that the opposing party
breached the Towing Agreement. Western claims breach of contract on the basis that Vigor (1)
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 16
1
failed to render a seaworthy tow; and (2) failed to pay for services rendered. Dkt. #1 at ¶¶ 18-
2
19. Vigor, in turn, claims that Western breached the Towing Agreement by failing to render
3
4
reasonable assistance in the event the Drydock became disabled “or otherwise unable to
continue the voyage.” Dkt. #15 at ¶ 36.
5
6
7
A contract that relates to a ship, to commerce or navigation on navigable waters, or
to maritime employment is a maritime contract. Brusco Tug & Barge, Inc. v. St. Paul Fire &
8
Marine Ins. Co., 897 F. Supp. 2d 1048, 1052 (W.D. Wash. 2012) (citing Sundance Cruises
9
Corp. v. American Bureau of Shipping, 7 F.3d 1077, 1080 (2d Cir. 1993)). The Towing
10
Agreement qualifies as a maritime contract given that it relates to ships and navigation on
11
12
13
14
navigable waters. To establish breach of a maritime contract, a plaintiff must demonstrate “(1)
the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3)
breach of contract by the defendant, and (4) damages.” Eternity Global Master Fund Ltd. v.
15
Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004); see also F.W.F., Inc. v.
16
Detroit Diesel Corp., 494 F. Supp. 2d 1342, 1360 (S.D. Fla. 2007), aff’d by 308 F. App’x 389
17
(11th Cir. 2009) (identifying essential elements of breach of maritime contract claim).
18
19
20
21
22
A court’s interpretation of a contract is generally a “mixed question of law and fact.”
Miller v. Safeco Title Ins. Co., 758 F.2d 364, 367 (9th Cir. 1985). “When the district court's
decision is based on analysis of the contractual language and an application of the principles of
contract interpretation, that decision is a matter of law.” Id.; see also Breaux v. Halliburton
23
Energy Serv., 562 F.3d 358, 364 (5th Cir. 2009) (“Where ‘the written instrument is so worded
24
that it can be given a certain definite legal meaning or interpretation, then it is not ambiguous,
25
and this Court will construe the contract as a matter of law.’”) (quoting Foreman v. Exxon
26
Corp., 770 F.2d 490, 496 (5th Cir. 1985)).
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 17
1
2
3
4
For the reasons set forth below, the Court finds that material disputes of fact preclude
summary judgment on parties’ cross-claims for breach of contract.
i.
Vigor’s Motion for Summary Judgment
The Court first addresses Vigor’s motion for summary judgment on parties’
5
6
7
cross-claims for breach of contract. Vigor argues that Western’s breach of contract claim fails
as a matter of law because it cannot demonstrate adequate performance. Dkt. #39 at 15. Section
8
7(B) of the Towing Agreement provides that “[s]hould the Tow become disabled, breakaway
9
or be otherwise unfit to continue the voyage . . . Customer [Vigor] shall be notified and the Tug
10
shall either take the tow to the nearest safe port/place or stand by the Tow until other assistance
11
12
13
14
is rendered.” Dkt. #40-1 at 5. Vigor argues that instead of towing the Drydock into the nearest
safe port/place, Western towed the Drydock into the Marine Sanctuary and therefore failed to
adequately perform its duties.
15
Western has presented sufficient evidence to raise a material dispute of fact as to
16
whether it violated Section 7(B) of the Towing Agreement. The record demonstrates that the
17
OCEAN RANGER stood by the Tow, pursuant to the terms of the contract, until other
18
assistance could be rendered. Indeed, the factual record indicates that proceeding into a safe
19
20
21
22
port—in this case, Monterey Bay—was deemed too dangerous at the time such that Vigor and
Western agreed that staying in deeper water until first light was the appropriate decision. See
Dkt. #42-20 at 6 (Vigor’s Dan Keen agreeing that Western should keep tow in deep water).
23
Vigor argues that Western should have held position outside the Sanctuary as “that would have
24
been a safe place for it to sink,” yet the plain language of Section 7(b) imposes no such
25
requirements on Western. Indeed, it solely requires that Western either proceed to the nearest
26
safe port or stand by the tow until assistance is rendered. Based on the factual record, the Court
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 18
1
cannot conclude as a matter of law that the OCEAN RANGER breached Section 7(B) of the
2
Tow Agreement by standing by the Drydock through the night instead of proceeding directly
3
4
into Monterey Bay, or by standing by inside a marine sanctuary as opposed to outside of one.
Vigor’s motion for summary judgment on Western’s breach of contract claim is therefore
5
6
7
DENIED.
ii.
Western’s Motion for Summary Judgment
8
Turning to Western’s motion for summary judgment, Western contends that it is entitled
9
to judgment as a matter of law on its breach of contract claim given that Western was released
10
from performing its towing duties once the Drydock sank. Pursuant to Section 7(C) of parties’
11
12
13
14
towing agreement, Western is released from performance “[s]hould the tow become totally lost
. . . .” Dkt. #40-1 at 5. However, Section 1(A) of the Towing Agreement carves out an
exception to Western’s release from liability in the event that the tow’s loss arises from
15
Western’s negligence. See id. (“Customer [Vigor] shall pay Owner [Western] the lump sum
16
hire identified above, which shall be fully and irrevocably earned upon commencement of
17
services, even if the Tug, Tow and/or cargo is lost and/or the voyage is delayed, frustrated or
18
cancelled, except to the extent loss, delay, frustration, or cancellation arises from the
19
20
21
22
23
24
25
26
negligence or willful misconduct of Owner.”) (emphasis added). Here, Western argues that
Vigor waived any defense to breach based on Western’s negligence and, even if that defense is
preserved, it cannot show that the Drydock’s sinking arose from Western’s negligence. The
Court will examine each argument in turn.
1. Waiver of Negligence Defense
As an initial matter, Western argues that Vigor waived any defense to breach based on
Western’s negligence as to the sinking tow. Dkt. #42 at 15. Western cites to the principle of
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 19
1
waiver under maritime and contract law wherein parties may intentionally waive breach of
2
contract claims through conduct that is “inconsistent with” assertion of their contract rights.
3
4
Natures Way Marine, LLC v. Everclear of Ohio, Ltd., 37 F. Supp. 3d 1232, 1242 (S.D. Ala.
2014), amended, No. 1:12-CV-316-CG-M, 2014 WL 5465885 (S.D. Ala. Oct. 28, 2014) (citing
5
6
7
Olsen v. Hunter–Benn & Co., 54 F. 530, 531 (S.D. Ala. 1892)).
Neither of these cases support the proposition that Western advances here: that Vigor’s
8
communications with Western during the Drydock’s sinking somehow amounted to an
9
intentional waiver by Vigor of its negligence defense in the event that the Drydock sank. In
10
Natures Way, the defendants’ conduct—failing to object to any delay and continuing to pay for
11
12
13
14
shipments and demurrage despite plaintiff’s failure to timely complete trips—waived any
objection to plaintiff’s three late deliveries. Id. (“Defendants cannot accept shipments without
objection and then belatedly claim breach of contract based on untimeliness.”). Here, Vigor
15
did not fulfill its end of the contract, such as paying Western for its the towage services, despite
16
Western’s failure to perform.
17
coordinated Global Diving to assist with keeping the Drydock afloat. Western offers no support
18
for the proposition that Vigor’s efforts to stay apprised of the Drydock’s status and to marshal
19
20
21
22
Rather, Vigor merely communicated with Western and
resources to prevent its sinking amounted to an intentional waiver of any negligence defense in
the event that the Drydock ultimately sank.
2. Causes of Drydock’s Sinking
23
Western maintains that Vigor cannot meet its burden to show that the Drydock’s sinking
24
arose from Western’s negligence, as required under Section 1(A) of the Towing Agreement.
25
Dkt. #42 at 7. Yet to prevail on summary judgment, the burden lies with Western—not Vigor—
26
to demonstrate that no genuine dispute of fact precludes finding that the Drydock’s sinking was
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 20
1
caused by Western’s negligence. See Fed. R. Civ. P. 56(a); Anderson, 477 U.S. at 247. Viewing
2
the record in the light most favorable to Vigor, the Court cannot conclude as a matter of law
3
4
that the Drydock’s sinking was due in no part to Western’s negligence.
Western urges the Court to find that the Drydock was unseaworthy from the outset of
5
6
7
the voyage based on the corrosion and configuration in which the Drydock was tendered to
Western. Seaworthiness is a question of fact typically reserved for trial, and only in rare
8
instances will courts find unseaworthiness as a matter of law. Morrell v. United States, 297
9
F.2d 662,663 (9th. Cir. 1961); see also Johnson v. Bryant, 671 F.2d 1276, 1279 (11th Cir. 1982)
10
(finding that “only in a rare case can a vessel be unseaworthy as a matter of law.”). This case
11
12
13
14
is not such a rare instance. Western’s claims of unseaworthiness rely on evidence that the
corrosion of the Drydock was much more substantial than represented in Mr. Law’s report, and
that the configuration of the Drydock—with both ends attached—was improper for towing on
15
open ocean. Vigor counters that any corrosion was not so substantial that it rendered the
16
Drydock unseaworthy, given the findings in the Bowditch report that reached the opposite
17
conclusion. On the issue of the Drydock’s configuration, Vigor points out that the Navy
18
Manual’s recommended configuration is merely guidance, not a requirement. See Dkt. #42-8
19
20
21
22
at 7. Additionally, Vigor introduces evidence that the Heger survey for the YFD-69 actually
recommended four different towing configurations—two of which were one-piece tow options.
See Dkt. #48-3 at 5 (Case 1a and 1b providing that end sections remain attached during tow).
23
This evidence raises a material dispute of fact as to whether the Drydock was unseaworthy from
24
the outset of the voyage. While Vigor failed to address the 2013 ultrasonic gauging and the
25
fact that its sale contract to Amaya Curiel required carriage in detached form on a heavy-lift
26
ship, the Court finds these issues probative but not dispositive of unseaworthiness. For that
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 21
1
reason, the question of the Drydock’s seaworthiness remains for trial for purposes of credibility
2
determinations and weighing of conflicting evidence.
3
4
Furthermore, the USCG incident investigation report states that the Drydock sank due
to “unknown flooding.” Dkt. #42-23 at 3. The USCG report clarified that it could not determine
5
6
7
whether the flooding occurred “because of some sort of damage or if material fatigue led to
some sort of equipment failure” that caused the Drydock’s hull to flood. Id. In response to this
8
ambiguous analysis from USCG, both parties have introduced evidence in support of their
9
theories as to why the Drydock flooded, resulting in its sinking. Western presents evidence of
10
the Drydock’s unseaworthiness, including corrosion and the configuration in which it was
11
12
13
14
towed, while Vigor counters with evidence that Western violated the wind restrictions set forth
in the tow plan.
The Court finds that Vigor has introduced sufficient evidence to raise a material dispute
15
of fact as to whether the Drydock’s sinking was due to Western’s negligence. According to
16
Vigor’s expert, Admiral Thomas Gilmour, Western’s failure to delay the trip due to severe
17
weather and failure to maneuver and alter the OCEAN RANGER’s speed once adverse weather
18
conditions began led to the Drydock sinking. Dkt #51 at 7 (“It is clear from the Ocean Ranger
19
20
21
22
logs, that the 8-10 foot seas and/or the 20-25 knot wind conditions were met or exceeded. . . .
What is worse is that the tug and tow were generally heading into the seas, which was
discouraged by the Towing Recommendations provided by Bowditch . . . .”) Furthermore,
23
Admiral Gilmour contends that Western could have avoided the Drydock’s sinking had it
24
prepared a proper Tow Plan that incorporated the recommendations on speed and wind
25
restrictions supplied by Bowditch Marine. Id. at 7-8 (“A great deal of critical information
26
provided by Bowditch Marine to minimize stresses on Drydock YFD-70 was either not used,
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 22
1
2
3
4
or minimized in developing the Tow Plan and its amendment.”).
Vigor also introduces testimony from structural engineer Michael Naylor, which
concluded that towing the Drydock in one-piece was not inherently unsafe “provided specific
towing restrictions were satisfied” on the voyage, and concluded that towing the dock through
5
6
7
heavy storm conditions with winds in excess of 35 knots, resulting in short wave lengths
coupled with significant wave heights of approximately 13 feet, was “the most likely cause for
8
the extensive and widespread structural damages that would be required to sink the dock.” Dkt.
9
#49 at 26-27. While Western disputes whether Vigor’s experts relied on correct information in
10
forming their opinions, see Dkt. #55 at 7, this issue is a question of fact, not law, and therefore
11
12
13
14
properly reserved for trial.
In light of the USCG’s inconclusive investigation report and Vigor’s expert testimony,
the Court finds that Vigor has raised a material dispute of fact as to whether the Drydock’s
15
sinking arose from Western’s negligence.
16
judgment is DENIED as to its breach of contract claim.
17
18
19
20
21
22
Accordingly, Western’s motion for summary
E. Maritime Negligence
Having denied summary judgment on parties’ cross-claims for breach of contract, the
Court now turns to Vigor’s counterclaim for maritime negligence. To the extent Vigor seeks
to exculpate itself from liability under the NMSA based on Western’s alleged negligence, this
Court has already determined that such claims lack subject matter jurisdiction. See § III(C),
23
supra. However, Vigor also seeks to recover costs it incurred as a result of parties’ mutual
24
exposure to liability under the NMSA caused by the Drydock’s sinking inside the Marine
25
Sanctuary. See Dkt. #15 at ¶ 34. These cooperation costs Vigor incurred as a result of parties’
26
exposure to liability are distinguishable from the speculative and hypothetical costs parties may
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 23
1
occur under the NMSA.2 For that reason, the Court finds no basis to dismiss this claim for lack
2
of subject matter jurisdiction at this time.
3
4
For the reasons set forth below, the Court finds that summary judgment is warranted on
Vigor’s counterclaim for maritime negligence.
5
i.
6
Claims Barred by Towing Agreement
The Court will first consider Western’s arguments that summary judgment dismissal of
7
8
Vigor’s counterclaim is warranted on the basis that Sections 8, 9 and 10 of the Towing
9
Agreement bar Vigor’s counterclaim for maritime negligence.
10
11
12
13
14
Starting with Section 8, Western argues that this insurance provision requires parties to
rely on their respective vessel insurances rather than bring claims based upon negligence or
fault. Dkt. #42 at 19. The interpretation of a maritime contract indemnity clause “is ordinarily
governed by federal maritime law rather than state law.” Comeaux v. Coil Tubing Servs., No.
15
CIV.A. 02-1790, 2004 WL 2984298, at *2 (E.D. La. Dec. 3, 2004), aff’d sub nom. Comeaux v.
16
Coil Tubing Servs., LLC, 172 F. App’x 57 (5th Cir. 2006). Courts “should read the contract as
17
a whole and may not look beyond written language of the document to determine the intent of
18
the parties unless the disputed contract provision is ambiguous.” Id. When interpreting a
19
20
21
22
23
24
25
26
maritime contract of indemnity, the contract “should be construed to cover all losses, damages,
or liabilities which reasonably appear to have been within contemplation of the parties, but it
should not be read to impose liability for those losses or liabilities which are neither expressly
within its terms nor of such character that it can be reasonably inferred that parties intended to
2
Western also argues that it is exculpated from any liability under the NMSA pursuant to the statute’s
third-party defense, which provides that parties are not liable if destruction or loss was caused solely
by an act or omission of a third party. Dkt. #42 at 21 (citing 16 U.S.C. § 1443(a)(3)(A)). Because this
Court lacks subject matter jurisdiction to resolve parties’ prospective liabilities under the NMSA,
Western’s argument under NMSA’s third-party defense is inapposite.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 24
1
include them within indemnity coverage.” Corbitt v. Diamond M. Drilling Co., 654 F.2d 329,
2
333 (5th Cir. 1981) (emphasis added).
3
4
5
6
7
8
9
Section 8 of the Towing Agreement provides, in part:
A. Intent. It is the intent of the parties that the insurances identified in this
section cover all losses, damages, claims, liabilities and suits incident to the
services being provided, and that parties shall look solely to such insurances . . .
rather than maintain claims against each other based upon negligence or fault.
To that end, the parties agree to procure and maintain the following insurances,
to promptly submit and prosecute all claims against such insurances, and to look
solely to such insurances for recovery.
13
C. Further Allocation. . . . [I]n the event a loss, damage, expense, claim, liability
and/or suit does not fall within the scope of a required insurance, Owner
[Western] and Customer [Vigor] shall be separately responsible for, and shall
indemnify and hold harmless each other from and against (including legal fees
and costs), . . . all loss, damages, expenses, claims, liabilities and suits arising
out of or relating to property owned by it, with Owner specifically responsible
for the Tug and all personal property on the Tug and with Customer specifically
responsible for the Tow, the cargo and all personal property on the Tow.
14
Dkt. #40-1 at 6-7 (emphases added). Section 8 establishes a knock-for-knock indemnity
10
11
12
15
16
17
18
agreement whereby Vigor would indemnify Western for “all loss, damages, expenses, claims,
liabilities and suits” pertaining to the Drydock, and Western would indemnify Vigor for the
same pertaining to the OCEAN RANGER. Western’s briefing on this issue is notably sparse
19
and relies heavily on the intent provision under Section 8.A that parties will procure insurance
20
such that all claims “incident to the services being provided” will be resolved through insurance.
21
See Dkt. #42 at 18-19. While the Court observes that the required insurances under Section 8.B
22
include not only hull and machinery but also protection & indemnity (“P & I”) and pollution
23
24
25
26
and environmental liability insurance, see Dkt. #40-1 at 6, Western makes no effort to identify
which category may apply here. Furthermore, Western fails to meaningfully respond to Vigor’s
argument that any P & I policy held by Vigor would not cover Western’s negligence, such that
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 25
1
claims arising from Western’s negligent towing would not be covered under the required
2
insurances.
3
4
The Court is not persuaded that Section 8 precludes the claim at issue here: Western’s
alleged negligence in dropping the Drydock inside a marine sanctuary that exposed Vigor to
5
6
7
third-party liability. The Court agrees with Vigor that parties’ insurance provisions are not
“entirely clear.” Dkt. #48 at 19.
Nevertheless, the language of Section 8 supports the
8
interpretation of parties’ indemnification agreement advanced by Vigor, which is that parties
9
are responsible for claims arising out of or relating to their own property such that Vigor is
10
barred from recouping loss of the Drydock, but not from recouping costs incurred as a result of
11
12
13
14
Western’s negligent injury to third parties. Western, in contrast, asserts without support that
the insurance provisions confer blanket indemnity for “any liabilities, including those under the
Marine Sanctuaries Act, arising from such claims.” Dkt. #42 at 19. Western has failed to
15
demonstrate that its expansive interpretation is supported by the text of Section 8.C, which
16
clearly limits parties’ respective responsibilities to suits or liabilities arising from their own
17
property. Western also relies on Dillingham Tug & Barge Corp. v. Collier Carbon & Chem.
18
Corp., 707 F.2d 1086 (9th Cir. 1983), for the proposition that “knock-for-knock” provisions
19
20
21
22
must be enforced. However, Dillingham does not support Western’s position that Section 8
confers blanket protection from all liability arising out of the towing. On the contrary,
Dillingham determined that parties’ insurance provision “would not have paid for loss of use,
23
or injuries to third persons, so it did not shield Dillingham from all liability.” Id. at 1090. For
24
these reasons, the Court finds that Vigor’s counterclaim cannot reasonably be inferred as a
25
claim or suit that parties intended to indemnify under Section 8. Corbitt, 654 F.2d at 333.
26
//
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 26
1
Western also argues that Section 10 of the Towing Agreement bars Vigor’s
2
counterclaims and cites to cases where courts upheld exculpatory agreements limiting remedies
3
to exclude consequential damages.3 Section 10 provides:
4
10. CONSEQUENTIAL DAMAGES. Neither Owner, Customer, nor any
Vessel shall be responsible for any special or consequential damages
whatsoever, including, without limitation, extra expense, loss of earnings, loss
of profits, loss of use and business interruption, whether resulting from
negligence, unseaworthiness, breach of this agreement or otherwise, even if the
possibility of such damages may have been foreseeable.”
5
6
7
8
Dkt. #40-1 at 7 (emphasis added).
Western’s arguments are inapposite, given that the
9
10
expenditures Vigor seeks to recover are not within the scope of consequential damages.
In contract law, consequential damages are defined as “those damages that, although
11
12
not an invariable result of every breach of this sort, were reasonably foreseeable or
13
contemplated by the parties at the time the contract was entered into as a probable result of a
14
breach.” 24 Williston on Contracts § 64:16 (4th ed.). In the context of maritime contracts,
15
16
17
18
consequential damages may include “loss of future profits, goodwill, business reputation, and
even mental anguish and physical inconvenience.” Tucker Energy Servs., Ltd. v. Hydraquip
Corp., No. CIV.A. H-05-1265, 2007 WL 2409571, at *2 (S.D. Tex. Aug. 20, 2007) (citing 2 S.
19
SORKIN, GOODS IN TRANSIT, § 11.10[1](a) at 11–89, 90 (1999)). This understanding
20
aligns with the definition of consequential damages set forth in the Towing Agreement: “extra
21
expense, loss of earnings, loss of profits, loss of use and business interruption[.]” Dkt. #40-1
22
23
24
25
26
3
On Reply, Western cites Robins Dry Dock & Repair Co., v. Flint for the proposition that economic
losses caused by a maritime tort to the person or property of another are unrecoverable. See Dkt. #55
at 4 (citing 275 U.S. 303 (1927)). The Court need not address this argument, which was raised for the
first time on reply. Nevertheless, it observes that Western misstates the key holding of Robins, which
bars recovery for solely economic loss absent physical damage to property in which the plaintiff has a
proprietary interest. See 7 West’s Fed. Forms, Admiralty § 10845 (4th ed.) Here, the absence of
physical damage prong is not met, given that the Drydock sank.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 27
1
at 7. Here, Vigor seeks recovery of costs it incurred as a result of Western’s alleged negligence
2
that resulted in the Drydock sinking inside the sanctuary, which exposed both parties to liability
3
4
under the NMSA. These costs are not within the scope of consequential damages under the
Towing Agreement. See, e.g., Tucker Energy Servs., 2007 WL 2409571, at *2 (costs for
5
6
7
8
removal of a wreck are not considered consequential damages under maritime contract). For
these reasons, the Towing Agreement’s bar on recovery of consequential damages does not bar
Vigor’s counterclaim.
9
Finally, Western makes the conclusory argument that the Towing Agreement’s force
10
majeure provision under Section 9 bars Vigor’s counterclaim. Dkt. #42 at 20. Section 9 states
11
12
13
14
that “[n]either party shall be responsible for delay or failure to perform if the reason for such
arises from . . . perils, dangers and accidents of the sea . . . breakdown or latent defects involving
hull, machinery, equipment lines, etc. not discoverable by due diligence . . . .” Dkt. #40-1 at 7.
15
Under maritime contracts, “perils of the sea” excusing performance are those that “are peculiar
16
to the sea, and which are of an extraordinary nature or arise from irresistible force or
17
overwhelming power, and which cannot be guarded against by the ordinary exertions of human
18
skill and prudence . . . .” Ferrara v. A. & V. Fishing, 99 F.3d 449, 454 (1st Cir. 1996) (quoting
19
20
21
22
R.T. Jones Lumber Co., Inc. v. Roen S.S. Co., 270 F.2d 456, 458 (2d Cir. 1959)). Beyond a
conclusory citation to the force majeure clause, Western offers no argument as to why Section
9 is invoked here. Western identifies no particular peril of the sea that would excuse
23
performance in this instance, nor does it elaborate on the “breakdown or latent defect” that
24
could not be discovered by due diligence that would give rise to a force majeure defense.
25
26
For these reasons, the Court finds that the terms of the Towing Agreement do not bar
Vigor’s counterclaims for maritime negligence to recover costs it expended as a result of
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 28
1
parties’ exposure to liability under the NMSA.
2
ii.
3
4
Merits of Vigor’s Maritime Negligence Counterclaim
Having determined that the Towing Agreement does not bar Vigor’s claim against
Western, the Court proceeds to the merits of Vigor’s counterclaim for maritime negligence.
5
6
7
Vigor claims that Western breached its duty of reasonable care when it towed the sinking
Drydock into the Marine Sanctuary and when it failed to tow the Drydock out before it sank.
8
Dkt. #15 at ¶ 33. On its motion for summary judgment, Vigor seeks to invoke the “last clear
9
chance” doctrine and the Pennsylvania Rule in admiralty law. The Court will address each in
10
11
12
13
14
turn.
1. “Last Clear Chance” Doctrine
As established above, the seaworthiness of the Drydock remains a material dispute of
fact reserved for trial. However, Vigor argues that under the “last clear chance” doctrine, the
15
question of the Drydock’s seaworthiness is irrelevant. Under this doctrine, a vessel committing
16
the later fault is “contractually bound to care for the one guilty of an earlier fault of which the
17
vessel held solely viable had become aware,” as “typified by the tug that neglects a leaky tow.”
18
Petition of Kinsman Transit Co. (1964, CA2 NY) 338 F2d 708, cert den 380 US 944, 13 L Ed
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20
21
22
23
2d 963, 85 S Ct 1026, infra § 6[b]; see also 3 A.L.R. Fed. 203 (1970) (“[A]lthough the towed
vessel was or may have been chargeable with some earlier fault which caused her distress, it
was found that the towing vessel neglected or improperly handled the towed vessel after
becoming aware of her distress.”
24
Vigor argues that Western breached its duty of prudent seamanship at the point when it
25
knew the Drydock was taking on water and losing stability and failed to take prompt action. It
26
is undisputed that the afternoon of October 25, several hours before the Drydock sank, Western
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 29
1
was aware that the Drydock was taking on water. See Dkt. #42-19 at ¶ 4 (port bow list noticed
2
by crew at 2:30 pm); Dkt. #42-6 at 8 (crew agreed dock was taking on water). To that end,
3
4
Vigor argues, Vigor was discharged of any fault it had with respect to the tow’s
unseaworthiness, given that Western had “the final opportunity, as well as the duty, to avert the
5
6
7
damages . . . .” Dkt. #39 at 11 (citing Houma Well Serv., Inc. v. Tug Capt. O’Brien, 312 F.
Supp. 257 (E.D. La. 1970)). Houma and the body of cases addressing “last clear chance”
8
address instances where the tower failed to take reasonable action to keep the tow afloat or take
9
the sinking tow to a safe resting place prior to sinking. See Houma, 312 F. Supp. at 263. Courts
10
have found that towers failed to take reasonable action when they neglected to reduce their
11
12
13
14
speed, failed to inspect the tow, and effectively “abandon[ed] [the tow] to sink at the pier, before
all reasonable efforts to keep her afloat were exhausted . . . .” Henry Du Bois Sons Co. v.
Pennsylvania R. Co., 47 F.2d 172, 173 (2d Cir. 1931). In such circumstances, courts held
15
towers solely liable for the sinking where “it was not shown by the tug that no reasonable effort
16
on her part would have kept the barge afloat, and also was not shown that the captain of the
17
barge could have obtained assistance after being moored and abandoned, or failed to do all
18
within his power to prevent the sinking.” Id.
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20
21
22
Here, a material dispute of fact exists as to whether no reasonable action on the OCEAN
RANGER’S part could have kept the Drydock afloat, or whether Captain McGavock failed to
do all that was in his power to prevent the sinking. Western has introduced evidence that, if
23
viewed in the light most favorable to Western, supports the conclusion that the Drydock’s
24
sinking was an inevitability regardless of any efforts to keep it afloat. Western’s expert witness,
25
Senior Managing Engineer Dr. Patrick Hudson, contends that in its fully-assembled state, 18-
26
inch openings at the interlocks of the Drydock’s center and end sections “provided a potential
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 30
1
pathway for water ingress into the drydock flow” between the end sections and compartments.
2
Id. He further concludes that the Drydock was not suitable to be towed in the open ocean in
3
4
any sea state in the condition and configuration in which it was provided by Vigor to Western
for towing. Id. at 21. On these bases, Dr. Hudson reasoned that due to Vigor’s failure to follow
5
6
7
accepted procedures for preparation of the Drydock for open ocean towing, combined with
inadequate structural maintenance, the Drydock sank en route to Ensenada.
8
The Court finds that this evidence of the Drydock’s extensive corrosion, as well as its
9
vulnerabilities to water ingress if towed on the open ocean in its fully-assembled state, could be
10
viewed by a reasonable juror as showing that no reasonable action taken by Western could have
11
12
13
14
kept the Drydock afloat after its unseaworthiness was discovered. Cf. Henry Du Bois Sons Co.,
47 F.2d at 173. For that reason, a reasonable juror may likewise view Western’s efforts to
monitor the listing, communicate with the USCG for entry into San Francisco Bay and later
15
Monterey Bay, and to remain in deeper water, as the extent of all reasonable efforts a prudent
16
navigator could have taken at that point in time to keep the Drydock afloat. Accordingly, the
17
Court finds that material disputes of fact preclude any finding that Western was negligent as a
18
matter of law with respect to the Drydock’s sinking such that Western is solely liable under the
19
20
21
22
“last clear chance” doctrine.
Alternatively, Vigor urges the Court to extend the “last clear chance” doctrine to the
sinking of the Drydock inside the marine sanctuary, on the basis that Western had the final
23
opportunity to prevent the tow from sinking in a location that exposed parties to liability under
24
the NMSA and failed to do so. Although Vigor maintains that Western held the duty to “avoid
25
the worst consequences” of the Drydock’s sinking, see Dkt. #39 at 10, the case law Vigor relies
26
upon does not support this expansive interpretation of the “last clear chance” doctrine. The
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 31
1
cases cited by Vigor considered “last clear chance” in the narrow context of whether the tower
2
took reasonably prudent measures to prevent damage to the tow or tower. See Houma Well
3
4
Serv., Inc., 312 F. Supp. at 264 (“When the fault of the first vessel appears or should be evident
to the second early enough for the second to escape injury to the first vessel and herself, she
5
6
7
must do so . . . .”) (quoting Chem. Transporter, Inc. v. M. Turecamo, Inc., 290 F.2d 496, 498
(2d Cir. 1961)) (internal quotations omitted) (emphasis added). To the extent a tower’s “last
8
clear chance” extends to the opportunity to avoid any possible harm arising from the tow’s
9
sinking, such as environmental penalties, third-party liability, or other injuries beyond direct
10
damages to the tow, Vigor has not adequately justified this expansive application of the
11
12
13
14
15
doctrine. For these reasons, the Court declines to extend the “last clear chance” doctrine to
Western’s failure to tow the Drydock out of the Marine Sanctuary such that Western would be
solely liable for all damages.
2. Pennsylvania Rule
16
Next, Vigor argues that Western is presumptively liable under the Pennsylvania Rule in
17
admiralty law. The Pennsylvania Rule shifts the burden of proving causation to the ship owner
18
if the liability results from a statutory or regulatory violation. MacDonald v. Kahikolu, Ltd.,
19
20
21
22
23
581 F.3d 970, 973 (9th Cir. 2009). Vigor argues that Western is presumptively liable on the
basis that it violated the NMSA through depositing the Drydock inside the Marine Sanctuary
or, alternatively, by violating maritime regulations that require captains to familiarize
themselves with hazards in the area of his voyage. Dkt. #39 at 14.
24
Application of the Pennsylvania Rule based on a violation of the NMSA is improper
25
given parties’ unresolved liabilities under that statute. No final determination has been made
26
as to parties’ respective liabilities under the NMSA, and this Court lacks jurisdiction to
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 32
1
determine whether liability lies with Western, Vigor, Amaya Curiel, or some combination of
2
those parties. See III(C), supra. For that reason, the Court declines to apply the Pennsylvania
3
4
Rule for violation of the NMSA or its implementing regulations under 15 C.F.R. § 922.132.
Vigor also argues that the Pennsylvania Rule applies based on Captain McGavock’s
5
6
7
violations of maritime navigation safety regulations requiring that he familiarize himself with
obstructions and hazards in the area of his voyage. Vigor cites to 33 C.F.R. §§ 164.30 and
8
164.33, which govern charts and publications. Section 164.30 requires that no person may
9
operate a vessel without marine charts and publications, while Section 164.33 requires that
10
vessels have marine charts of the area to be transited that are currently corrected. 33 C.F.R. §
11
12
13
14
164.33. However, Vigor has introduced no evidence regarding the charts or publications
Captain McGavock had on board the OCEAN RANGER at the time of the Drydock’s sinking
or whether such materials were up-to-date. It remains unclear whether the OCEAN RANGER’s
15
navigational failure was due to a violation of § 164.33 for failure to keep updated charts on
16
board, from human error in reading those charts, or another alternative explanation. For that
17
reason, Vigor has failed to demonstrate as a matter of law that Western committed any
18
regulatory violation related to its navigational charts. For that reason, the Pennsylvania Rule is
19
20
21
22
inapplicable on this basis.
3. Elements of Maritime Negligence
Finally, absent application of the “last clear chance” doctrine or the Pennsylvania Rule,
23
the Court considers whether Vigor has introduced sufficient evidence to prevail as a matter of
24
law on its maritime negligence claim. The elements to establish a claim of negligence under
25
maritime law are the same as the elements of negligence under common law. In re MS Angeln
26
GmbH & Co. KG, 10 F. Supp. 3d 424, 430 (S.D.N.Y. 2014). Those elements include duty of
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 33
1
care, breach of duty, causation, and damages. Id. (citing Cornfield v. Cornfield, 156 Fed. Appx.
2
343, 344 (2d Cir. 2005)). In a maritime tort case, the claimant generally bears the burden of
3
4
proving the elements of negligence. Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp.,
LLC, 571 F.3d 206, 211 (2d Cir. 2009).
5
6
7
It is undisputed that Western owed a duty of care to Vigor with regard to the tow. In
the context of maritime towing, “[t]he owner of a tow is responsible for its seaworthiness, and
8
the owner of the tug for its safe navigation.” Greger Pac. Marine, Inc. v. Oregon Offshore
9
Towing, Inc., No. 3:13-CV-00461-SI, 2014 WL 3420770, at *5 (D. Or. July 10, 2014) (quoting
10
Marina Mgmt. Grp., Inc. v. Basic Towing, Inc., 64 F. App’x 532, 534 (6th Cir. 2003))
11
12
13
14
(unpublished) (citation omitted). However, a tug has a duty to “exercise such reasonable care
and maritime skill as prudent navigators employ for the performance of similar service.”
Stevens v. The White City, 285 U.S. 195, 202 (1932).
15
Vigor has not presented any case law—and the Court is not aware of any—confirming
16
that reasonable care and maritime skill require a captain to ensure that a tow sinks outside, as
17
opposed to inside, the boundaries of a marine sanctuary. However, Rexach v. Sec’y of the Navy
18
establishes that prudent seamanship requires the captain to have an accurate understanding of
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20
21
22
his vessel’s location. See No. 75-408, 1978 U.S. Dist. LEXIS 19588, at *24 (D.P.R. Feb. 14,
1978) (“The art of piloting reaches its climax in position determination. Underway on a body
of water of any size, where the safety of your boat and its crew is at stake, it is not ‘where you
23
ought to be’, or ‘where you think you are’, but your knowledge of ‘where you are for sure’ that
24
counts.”) (internal quotations and citations omitted). This positional awareness extends to
25
where the vessel stands in relation to hazards “clearly and adequately charted and warned of on
26
the nautical chart of the area.” Id. at *4. Here, Western does not dispute that the boundaries of
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 34
1
marine sanctuaries are clearly marked on navigational charts, which vessels are required to have
2
onboard. See Dkt. #40-7 (nautical chart denoting sanctuary boundaries in blue); see also 33
3
4
C.F.R. § 164.33(a)(1)(ii) (Requiring currently corrected marine charts of area to be transited).
The Court finds that prudent seamanship required that Western be aware of whether or not it
5
6
7
8
was inside a marine sanctuary while towing the sinking Drydock. See also Tidewater Marine,
Inc. v. Sanco Int’l, Inc., 113 F. Supp. 2d 987, 995 (E.D. La. 2000) (“Reasonable maritime
practice would require, at a minimum, consultation with current charts.”).
9
Turning to breach of duty, whether a tow owner’s actions were reasonably prudent is a
10
fact-intensive inquiry typically reserved for trial. Here, however, the record provides no support
11
12
13
14
for Western’s position that it exercised prudent seamanship by releasing the tow line while
inside the Marine Sanctuary. The record is replete with evidence that Western was well-aware
of the hazards posed by San Francisco Bay, where the Drydock’s sinking in a major transit area
15
would create an expensive and involved salvage job. See Dkt. #42-20 at 9 (Email dated October
16
25, 2016, 6:26 pm from Bob Shrewsbury to Daniel Keen stating, “We want to have a look in
17
the daylight to make sure we are safe to transit the San Francisco Bar Crossing. We do not
18
want the Dock to sink where it would have to be a Major Salvage job. If it goes down in 1500
19
20
21
22
feet of the coast is one thing. But we don’t want it on the Bar entrance or Harbor.”) The record
likewise indicates that Captain McGavock was aware of the Greater Farallones National Marine
Sanctuary located near San Francisco Bay, and made a decision to head away from the Bay and
23
the Farallones sanctuary area when it became apparent the Drydock was sinking. See Dkt. #40-
24
6 at 3 (“After several hours it became apparent the tow would not make it. I contacted [Western]
25
and [USCG] and decision was made to head out of the traffic lanes and sanctuary area and into
26
as deep water as possible.”) Dkt. #40-6 at 3 (emphasis added); see also Dkt. #40-8 at 5-6 (Bob
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 35
1
Shrewsbury stating “I told them that we’re not going to go into San Francisco. We can’t take
2
the chance . . . If it sunk anywhere in that entrance area, it would be national disaster.”).
3
4
In stark contrast, communications between Western’s port employees and the OCEAN
RANGER’s crew, as well as Western’s communications with Vigor, contain no reference to
5
6
7
the hazards or potential salvage job they risked by allowing the Drydock to sink inside the
Marine Sanctuary. See Dkt. #42-20 at 5-17 (email correspondence between Western’s Bob
8
Shrewsbury and Vigor’s Dan Keen and Paul Torrey in hours leading up to sinking). Crucially,
9
Western’s communications contain no mention of the Marine Sanctuary, except for a cursory
10
reference by Russell Shrewsbury to the Drydock sinking in front of tourists at the aquarium.
11
12
13
14
See Dkt. #52-10 at 9 (“I remember telling Dan . . . ‘I don’t want to take this into Monterey if
it’s going to sink right in front of the aquarium out there.’ I remember specifically telling him
these people do not want to see a big dry dock out in front of their town.”). When asked if he
15
expressly informed Dan Keen “that is a national marine sanctuary that presents these additional
16
risks,” Russ Shrewsbury responded, “Not in a direct way, no.” Id. at 20. Instead, Russ
17
Shrewsbury confirmed that Western’s employees “weren’t really thinking about it. We were
18
worried about saving the tow.” Id. at 21. Likewise, despite Western directing the OCEAN
19
20
21
22
RANGER’s course towards the Marine Sanctuary, Bob Shrewsbury testified that he “[w]asn’t
aware of how close he [Captain McGavock] was to the sanctuary, if he was in one . . . .” Dkt.
#40-8 at 10-11.
23
Western has introduced no material fact indicating that the OCEAN RANGER was
24
aware of its location with respect to the Marine Sanctuary at the time it released the tow line.
25
Indeed, the record only indicates Western’s intention that the OCEAN RANGER wait in deeper
26
water until daylight, without regard to where the vessel sat in relation to the boundaries of the
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 36
1
Marine Sanctuary. Despite Western’s recognition that the Drydock was sinking as the OCEAN
2
RANGER headed away from San Francisco Bay, see Dkt. #42-23 at 29; Dkt. #40-6 at 3, the
3
4
record reflects no understanding by Western that the Drydock was inside a marine sanctuary at
the time it sank, nor any awareness as to the practical consequences—whether legal,
5
6
7
environmental, or economic—of releasing the tow line in that location. While Western offers
theories as to why the Drydock sank in the first instance, it provides no explanation as to why
8
it sank inside the sanctuary. Based on this evidence, the Court finds that no reasonable juror
9
could conclude that Western exercised prudent seamanship with respect to its duty to navigate
10
with cognizance of the vessel’s position in relation to navigational hazards. Rexach, 1978 U.S.
11
12
13
14
Dist. LEXIS 19588, at *24. For this reason, the Court finds that Western breached its duty of
prudent seamanship as a matter of law when it released the tow line for the Drydock inside the
Marine Sanctuary.
15
Turning to causation, given that the Pennsylvania Rule has not been shown to apply
16
here, the burden of proving causation remains on Vigor. Under general maritime law, a party’s
17
negligence is only actionable if it is a “legal cause” of the plaintiff’s injuries. Tidewater Marine,
18
Inc. v. Sanco Int’l, Inc., 113 F. Supp. 2d 987, 998 (E.D. La. 2000) (citing Donaghey v. Ocean
19
20
21
22
Drilling & Exploration Co., 974 F.2d 646, 648 (5th Cir. 1992)). “Legal cause is something
more than ‘but for’ causation.” Donaghey, 974 F.2d at 648 (quoting Thomas v. Express Boat
Co., Inc., 759 F.2d 444, 448 (5th Cir. 1985) (citations omitted)). A defendant’s negligence must
23
be a “substantial factor” in causing the injury, with “substantial” defined as “more than but for
24
the negligence, the harm would not have resulted.” Chavez v. Noble Drilling Corp., 567 F.2d
25
287, 289 (5th Cir. 1978) (citing Spinks v. Chevron Oil Co., 507 F.2d 216, 222–23 (5th Cir.
26
1975)). When more than one party is at fault, the comparative negligence standard applies.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 37
1
2
3
4
Tidewater Marine, Inc., 113 F. Supp. 2d at 998.
Here, the alleged injury is parties’ mutual exposure to NMSA liability, which has
resulted in damages to Vigor in the form of cooperation costs incurred a result of this liability
exposure. Western attempts to challenge causality by arguing that the vessel’s unseaworthiness,
5
6
7
combined with weather and wave conditions, led to the Drydock’s sinking. However, the
reason why the Drydock sank in the first instance, which remains a factual issue for trial, is
8
distinguishable from the causation at issue here: why the Drydock sank inside the sanctuary. It
9
is undisputed that Western bore the duty of prudent seamanship, which it breached by failing
10
to exercise awareness of the vessel’s location in relation to the Marine Sanctuary’s boundaries.
11
12
13
14
As a result of that breach, it unknowingly released the tow barely inside the bounds of a marine
sanctuary, resulting in parties’ mutual exposure to significant liability under NMSA. While
Vigor may bear a comparative degree of fault to the extent it supplied an unseaworthy vessel,
15
the Court finds no dispute of fact that Western’s failure to exercise awareness of the OCEAN
16
RANGER’s location relative to the Marine Sanctuary was a substantial factor in the Drydock’s
17
sinking inside the sanctuary, resulting in both parties’ exposure to NMSA liability.
18
19
20
21
22
23
Regarding damages, it is undisputed that Vigor has incurred costs as a result of parties’
exposure to liability under the NMSA. As a result of this exposure, Vigor has spent money in
cooperative research surveys in hopes of reducing the ultimate penalty. These damages flow
from Western’s breach of its duty of prudent seamanship, which resulted in the Drydock sinking
inside the Marine Sanctuary as opposed to outside of it.
24
Accordingly, Vigor has demonstrated Western’s negligence as a matter of law with
25
respect to the Drydock’s sinking inside the sanctuary. Summary judgment on Vigor’s maritime
26
negligence counterclaim is therefore proper.
ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 38
IV.
1
2
3
4
CONCLUSION
Having considered parties’ cross-motions for summary judgment, the responses, replies,
and remainder of the record, the Court ORDERS:
(1) Western’s claim for declaratory judgment and Vigor’s counterclaim for maritime
5
6
7
negligence, to the extent it seeks prospective determinations of liability under the NMSA, are
DISMISSED for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3);
8
(2) Summary judgment is DENIED on parties’ cross-claims for breach of contract;
9
(3) Summary judgment is GRANTED on Vigor’s counterclaim for maritime negligence.
10
11
IT IS SO ORDERED.
12
13
DATED this 21st day of June, 2021.
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15
16
17
A
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
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ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - 39
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