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Namoh, Ltd. v. Boston Waterboat Marina, Inc.

United States District Court, D. Massachusetts

September 7, 2017

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

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE

         On August 30, 2011, the M/Y NAMOH struck a wooden piling while backing into a berth provided by defendant Boston Waterboat Marina, Inc. (“BWM”). This litigation ensued to determine whether plaintiff Namoh, Ltd. should be held comparatively at fault for the damages as a result of this allision and to establish the damages, if any, for which BWM is responsible. Following a non-jury trial, I make these Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52.

         I. FINDINGS OF FACT

         A. The M/Y NAMOH and Her Intended Voyage

         The M/Y NAMOH is a 125 foot luxury motor yacht owned by Namoh, Ltd. The M/Y NAMOH is equipped with twin diesel engines and two five-bladed propellers with diameters of 1300mm and a weight of over five hundred pounds each. The M/Y NAMOH is also equipped with a sonar system manufactured by Wesmar that has a display monitor at the helm station on the far port side of the vessel.

         At the time of the allision, the two members of Namoh, Ltd. were Walter Homan and his father Frank Homan. Namoh is the semordnilap of Homan. The Homan family used the M/Y NAMOH both for personal pleasure and for commercial chartering. At the end of August, 2011, Walter Homan was travelling aboard the M/Y NAMOH with his family. On August 30, 2011, the M/Y NAMOH travelled from Camden, Maine to Boston, Massachusetts to meet Walter Homan's son and his girlfriend.

         B. The August 30, 2011 Docking

         On the evening of August 30, 2011, the M/Y NAMOH arrived in the Port of Boston. The vessel's Master, Captain Gregory Russell, contacted BWM seeking a dock berth. Captain Russell spoke with Christopher Cannon, the manager of BWM and a licensed captain himself, who directed Captain Russell to berth in “D” dock, a slip in which the M/Y NAMOH had previously berthed.

         The M/Y NAMOH arrived at BWM at approximately 6:00 PM and prepared to berth in “D” dock. Captain Russell positioned the M/Y NAMOH to back into “D” dock with her starboard side to be tied to the berth. Captain Russell positioned himself on the wing station on the M/Y NAMOH's starboard side. From the wing station, the monitor for the sonar would not be visible. Cannon, joined by his father Larry Cannon, was present at “D” dock in order to assist with the berthing process.

         Approximately half to two-thirds of the way into the berth, the M/Y NAMOH experienced a sudden and violent shudder. The starboard engine shut down and Captain Russell ordered the crew to throw out lines in order to secure the vessel from drifting. He then called the engineer in the engine room to determine if the engine readings appeared normal. When the engineer confirmed that they did, Captain Russell restarted the starboard engine. Captain Russell reasonably believed either that a line had become wrapped around the propeller, which had caused the engine to shut down, or that whatever object the vessel had struck had been cleared out by the initial impact.

         Following the same procedure, the M/Y NAMOH again backed into the berth. Cannon remained on “D” dock watching the berthing and he did not instruct or warn Captain Russell not to proceed. As the vessel backed in, she appeared to hit something hard and the starboard engine again shut down. The M/Y NAMOH was pulled into “D” dock using her mooring lines and deck winches.

         At trial, Cannon testified that he believed the wing station was a proper place for Captain Russell to be during a berthing process. When asked whether he felt that Captain Russell had done anything improper while backing in the vessel, Cannon said no. When presented with his deposition and earlier interrogatories, Cannon confirmed that at the time he gave his deposition, he had also been of the view that Captain Russell did not operate improperly during the berthing process.[1]

         BWM has admitted that it was negligent for failing to provide the M/Y NAMOH with a safe berth and admits that it breached its implied warranty of workmanlike performance to Namoh, Ltd. I find that Captain Russell did not operate the M/Y NAMOH improperly during the berthing process and, more specifically, that he did not act unreasonably when he backed the M/Y NAMOH into the berth for a second time. I find that any damage to the M/Y NAMOH while berthing at “D” dock was caused solely by BWM's admitted failure to maintain a safe berth and its failure to warn Captain Russell of an obstruction in “D” dock berth.

         Following an initial inspection of the vessel immediately after the incident, which did not reveal any damage, Cannon told Captain Russell that BWM would schedule a diver to determine what the M/Y NAMOH had struck and to investigate whether the M/Y NAMOH's propellers had suffered any damage. On August 31, 2011, BWM engaged Edward Redfield, a commercial diver, to inspect the M/Y NAMOH and the “D” dock berth. Redfield inspected the M/Y NAMOH underwater and observed that two blades of the starboard propeller were bent at the tips. Redfield found nothing remarkable with respect to the starboard running gear stabilizers, the hull, the port propeller, or the port running gear of the M/Y NAMOH. Redfield took video and still photographs of the damage to the starboard propeller and Captain Russell viewed and recorded the video.

         Later that day, Captain Russell engaged in a sea trial of the vessel in Boston Harbor. During the sea trial, the M/Y NAMOH exhibited vibration. When the vessel returned to BWM after the sea trial, Captain Russell and Cannon discussed the possibility of repairing the propeller at BWM by hiring a dive team to remove the propeller in the water. BWM had no capacity itself to take the propeller off the M/Y NAMOH in the water in Boston and had never employed a facility previously to take a propeller off a vessel with the size and weight of the propeller on the M/Y NAMOH.

         Ultimately, the decision was made to continue on to New York. As Captain Russell explained, “I thought we had a better chance of doing [the repairs] down in New York with better facilities and better equipped . . . personnel.”

         But repairing the vessel was not the only motivation for the trip to New York; Captain Russell also hoped to “still try and maintain the owner's trip. There was - you know, that was the - that was the objective, to try and salvage some of his trip. And we felt that at some point that the propeller was going to have to come off and we'd have a better chance down in New York.” Captain Russell believed there was a guest transition planned for New York, where some of the owner's guests would be departing and others would be arriving.

         I find the M/Y NAMOH travelled for New York both to obtain repairs and to allow the M/Y NAMOH's owner to continue his trip as scheduled. I also find that it was not unreasonable for the M/Y NAMOH to depart from Boston to seek repairs.

         C. The Journey to New York

         The M/Y NAMOH travelled from Boston to New York, with stops in Newport, Rhode Island and Sag Harbor, New York. During the voyage, Captain Russell and his crew monitored the engine thrust shaft temperature and kept the M/Y NAMOH at a reduced speed. The M/Y NAMOH was run on both engines, with the starboard engine running at a reduced rate. On September 1, 2011, during the journey from Boston to Newport, the starboard engine was run at no higher than 550 RPMs and the thrust bearing temperature for the starboard engine never exceeded 131 degrees Fahrenheit. On September 2, 2011, during the journey from Newport to Sag Harbor, the starboard engine was run at no higher than 550 RPMs and the thrust bearing temperature for the starboard engine never exceeded 132 degrees Fahrenheit.

         On September 3, 2011, as the M/Y NAMOH travelled from Sag Harbor to New York City, the thrust bearing temperatures readings began to climb. The M/Y NAMOH's engine room visual inspection log indicates that at approximately 1 AM, the starboard engine was being run at 550 RPMs and the thrust bearing temperature for the starboard engine was 107 degrees Fahrenheit.[2] Over the next three hours, the starboard engine stayed at 550 RPMs, but the temperature readings increased to 122, 130, and 135 degrees Fahrenheit. At 4:15 AM, the log notes that two cups of oil were added to the starboard thrust bearings. Then, at 5:00 AM, the starboard engine was run at 950 RPMs and the thrust bearing temperature for the starboard engine was 148 degrees Fahrenheit.[3] At 6:00 AM, the starboard engine was still being run at 950 RPMs and the thrust bearing temperature for the starboard engine had increased to 152 degrees Fahrenheit. At 7:00 AM, the starboard engine was run at 921 RPMs and the thrust bearing temperature for the starboard engine was 163 degrees Fahrenheit. At 8:00 AM, the starboard engine went back down to 550 RPMs, but the thrust bearing temperature for the starboard engine remained at 163 degrees Fahrenheit. At 9:00 AM and 10:00 AM, the starboard engine was run at 720 RPMs and 770 RPMs respectively and the thrust bearing temperature for the starboard engine was 155 and 156 degrees Fahrenheit.

         In his testimony, Captain Russell recalled that the temperature of the starboard engine thrust bearings “spiked” during the trip from Sag Harbor to New York City; he believed this indicated an issue with the bearings. By the time the M/Y NAMOH reached New York City on September 3, 2011, Captain Russell believed that the vessel's issues now extended beyond the damage to the propeller and that the thrust bearings needed to be inspected.[4]

         In New York City, divers from Underwater Construction Corporation were engaged to attempt to remove the starboard propeller from the M/Y NAMOH. Underwater Construction Corporation provided a written estimate on September 2, 2011 for removing the starboard propeller, transporting the propeller to its Staten Island facility, and coordinating transport of the propeller to the repair facility. Underwater Construction Corporation estimated the final bill for these services would be $2, 200.00.

         The divers from Underwater Construction Corporation were unable to remove the propeller and no other facility could be found in New York City to repair the M/Y NAMOH at that time. Namoh, Ltd. has not presented documentary evidence of the actual cost and payment for Underwater Construction Corporation's unsuccessful attempt. Namoh, Ltd. relies instead on the original estimate for a successful removal and a statement by Graeme Lord, the yacht manager of the M/Y NAMOH. As the yacht manager, Lord was not himself tasked with reviewing and paying invoices. Angus MacKenzie and Romy Barden, who worked with Lord at the yacht management company, handled the billing for repairs. It appears Lord's statement is based upon his review of the estimate. In the absence of other evidence establishing the amount billed and paid for the failed attempt to remove the propeller, I do not find Lord's statement credible; thus, I find Namoh, Ltd. has not established the charges it incurred from Underwater Construction Corporation.

         At this point, Captain Russell decided that the M/Y NAMOH should be hauled out for repairs, and Homan and his family disembarked in New York. The M/Y NAMOH was then towed to Fairhaven Shipyard in Fairhaven, Massachusetts for repairs.

         I find that Captain Russell's conduct following the incident at BWM was not unreasonable and did not aggravate the damage to the M/Y NAMOH caused by the allision.

         D. The ...


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