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In re Parry

United States District Court, D. Massachusetts

June 4, 2018

In the Matter of GORDON E. PARRY, JR., as Owner of 2003 Chaparral Signature 280 Cabin Cruiser, MS-2594-AJ, HIN-FGBA0331F203, for Exoneration from or Limitation of Liability.

          REPORT AND RECOMMENDATION RE: CLAIMANT/THIRD-PARTY DEFENDANT 3A MARINE SERVICE, INC.'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 117)

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE

         Pending before this court is a summary judgment motion filed by claimant and third-party defendant 3A Marine Service, Inc. (“3A Marine”) against plaintiff Gordon E. Parry, Jr. (“Parry”), owner of a 2003 Chaparral Signature 280 cabin cruiser (“the vessel”). (Docket Entry # 117). After conducting a hearing on March 23, 2018, this court took the motion (Docket Entry # 117) under advisement.

         PROCEDURAL BACKGROUND

         Parry initiated this action in March 2015 by filing a verified complaint for exoneration from or limitation of liability pursuant to the Limitation of Liability Act of 1851, 46 U.S.C. §§ 30501-30512 (“the Limitation Act”), after an explosion and fire on August 24, 2014 (“the incident”) engulfed and sank the vessel in Provincetown harbor in Provincetown, Massachusetts. In June 2015, claimant David P. Lundmark (“Lundmark”), a passenger on the vessel at the time, filed a claim against Parry and an answer. (Docket Entry ## 16, 17). Parry, in turn, filed a reply to the claim (Docket Entry # 25) and an amended third-party complaint (Docket Entry # 38) against 3A Marine. The amended third-party complaint alleges Parry was without fault or knowledge and that 3A Marine is responsible for the injuries and losses resulting from the explosion and fire. The six-count amended third-party complaint sets out causes of action for breach of a maritime repair contract (Count I), negligence (Count II), gross negligence (Count III), indemnification (Count IV), contribution (Count V), and breach of the implied warranty of workmanlike performance (Count VI). (Docket Entry # 38). 3A Marine also filed a claim that the lack of due care on the part of Parry, Lundmark, and/or the vessel's unseaworthiness caused the incident as well as an answer to the amended third-party complaint and a counterclaim against Parry for contribution and indemnity. (Docket Entry ## 39, 40).

         STANDARD OF REVIEW

         Summary judgment is designed “‘to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'” Tobin v. Federal Express Corp., 775 F.3d 448, 450 (1st Cir. 2014). It is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). It is inappropriate “if the record is sufficiently open-ended to permit a rational factfinder to resolve a material factual dispute in favor of either side.” Pierce v. Cotuit Fire District, 741 F.3d 295, 301 (1st Cir. 2014).

         “An issue is ‘genuine' when a rational factfinder could resolve it [in] either direction” and a “fact is ‘material' when its (non)existence could change a case's outcome.” Mu v. Omni Hotels Mgt. Corp., 882 F.3d 1, 5 (1st Cir. 2018); accord Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014). The record is viewed in favor of the nonmoving party, i.e., Parry, and reasonable inferences are drawn in his favor. See Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d 411, 417 (1st Cir. 2017) (court examines “‘record in the light most favorable to the nonmovant' and must make ‘all reasonable inferences in that party's favor'”); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In reviewing a summary judgment motion, a court may examine “all of the record materials on file” even if not cited by the parties. Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014); Fed.R.Civ.P. 56(c)(3). “‘“[C]onclusory allegations, improbable inferences, and unsupported speculation”'” are ignored. Garcia-Garcia v. Costco Wholesale Corp., 878 F.3d at 417. Adhering to this framework, the facts are as follows.

         FACTUAL BACKGROUND[1]

         In 2007, Parry began servicing the vessel at 3A Marine. Located in Hingham, Massachusetts, 3A Marine repairs and sells recreation boats. (Docket Entry # 38, ¶ 18) (Docket Entry # 40, ¶ 18) (Docket Entry # 122-6) (Docket Entry # 122-2, p. 2).[2]Patrick J. Desmond (“Desmond”), 3A Marine's customer service manager, was Parry's “point person” at 3A Marine. (Docket Entry # 122-2, pp. 2-3). According to Parry, 3A Marine was “in charge of doing [the] mechanical stuff” and provided maintenance and repairs to the vessel from the fall of 2007 to the August 24, 2014 incident. (Docket Entry # 122-1, pp. 2, 13). If something was not working on the vessel, Parry would contact 3A Marine to take care of the matter. (Docket Entry # 122-1, p. 13). More specifically, Parry used 3A Marine to service the vessel's “Volvo Penta engine because 3A Marine had Volvo Penta certified mechanics and [sic] were highly recommended.”[3] (Docket Entry # 122, ¶ 29) (Docket Entry # 124, ¶ 29) (Docket Entry # 122-1, p. 6). In the summer of 2012, Desmond even traveled to Provincetown to service the vessel's port engine when it would not start.[4](Docket Entry # 122, ¶ 32) (Docket Entry # 124, ¶ 32) (Docket Entry # 122-1, p. 10). On July 7, 2012, 3A Marine replaced a fuel pump for the port engine because it was “not developing full” revolutions per minute. (Docket Entry # 122-6, p. 11).

         In April 2014, Parry faxed a “‘2014 Spring Commissioning Checklist' to 3A Marine” detailing the commissioning services he needed “before the 2014 boating season.” (Docket Entry # 118, ¶ 1) (Docket Entry # 122, ¶ 1). The services included running and testing “engine systems” and a “computer diagnostic check.” (Docket Entry # 119-1, Ex. 8, p. 25). 3A Marine performed the services and Parry paid the $6, 123.71 invoice in full in early August 2014. (Docket Entry # 118, ¶ 2) (Docket Entry # 122, ¶ 2) (Docket Entry # 119-1, pp. 15, 27-31).

         In the summer of 2014, Parry made approximately three trips from Savin Hill Yacht Club (“the yacht club”) in Dorchester, Massachusetts, where he moored the boat for the season, to Provincetown.[5] (Docket Entry # 118, ¶ 4) (Docket Entry # 122, ¶ 4) (Docket Entry # 119-1, pp. 3-6). On July 3, 2014, Parry “noticed a gasoline odor on [the] vessel when he brought the vessel into [a] gas dock” at the yacht club. (Docket Entry # 122, ¶ 34) (Docket Entry # 124, ¶ 34) (Docket Entry # 122-1, p. 18). He opened the engine compartment, ran a blower, and did not see any gasoline in the bilge. (Docket Entry # 122-1, p. 19). After fueling the vessel, he returned it to the mooring. That evening, he used the vessel for a trip to Weymouth Landing for a fireworks display. The vessel “ran fine” although Parry smelled a slight gasoline odor. (Docket Entry # 122-1, pp. 20-22).

         On or about July 7, 2014, Parry told Desmond about the smell of gasoline and brought the vessel to 3A Marine.[6] (Docket Entry # 122-1, pp. 22-23). When Parry picked up the vessel on Saturday, July 12, 2014, he asked Desmond what he found “with the gasoline.” (Docket Entry # 122-1, p. 25). Desmond informed Parry that he “inspected the whole fuel system and didn't find anything wrong with it and didn't see anything wrong, ” according to Parry.[7] (Docket Entry # 122-1, p. 25).

         After the above-noted inspection in early July, neither Parry nor any passenger noticed a smell of gasoline until July 25, 2014. (Docket Entry # 122-1, p. 26). On July 25, 2014, Parry again smelled an odor of gasoline. (Docket Entry # 122-1, p. 18). Specifically, after fueling the vessel at the yacht club, he noticed a gasoline odor in the cabin. (Docket Entry # 122, ¶ 42) (Docket Entry # 124, ¶ 42) (Docket Entry # 122-1, pp. 18, 27). Parry again opened the engine compartment and did not observe “anything.” (Docket Entry # 122-1, p. 27). After running the blower, he brought the vessel to 3A Marine. (Docket Entry # 122, ¶ 42) (Docket Entry # 124, ¶ 42) (Docket Entry # 122-1, pp. 27).

         At 3A Marine, Desmond “inspected the fuel system, and” discovered “there was a conclave in the gas tank, ” according to Parry.[8] (Docket Entry # 122-1, p. 28). Desmond also replaced two canvas straps that supported a top for a windshield. He inspected the engine's trim but has no memory of inspecting anything else in the engine compartment on July 25, 2014. (Docket Entry # 125-1, pp. 8-10, 19). Desmond has no memory of Parry telling him about an odor of gasoline on July 25, 2014.[9](Docket Entry # 125-1, pp. 17-19). When Desmond finished the repairs, Parry asked him if the vessel was safe and Desmond replied, “Yes.”[10] (Docket Entry # 122-1, p. 29). Desmond also spoke to Parry about the trim issue. (Docket Entry # 125-1, pp. 7-8).

         3A Marine did not undertake any service or repair of the vessel after July 25, 2014. (Docket Entry # 118, ¶ 6) (Docket Entry # 122, ¶ 6) (Docket Entry # 119-1, p. 19). During the three trips that summer between the yacht club and Provincetown, the engines were operating or running fine. (Docket Entry # 119-1, pp. 5-7). In fact, on the second trip, Parry “stated that the Vessel was ‘running the best it's run in a long time.'” (Docket Entry # 118, ¶ 5) (Docket Entry # 122, ¶ 5) (Docket Entry # 119-1, pp. 5-6).

         Parry did not detect a gasoline odor after the July 25, 2014 repair up to the time of the explosion and fire one month later on August 24, 2014. (Docket Entry # 119-1, p. 19). Parry also did not contact 3A Marine with respect to the “engines running roughly or improperly.” (Docket Entry # 119-1, p. 19). In the days leading up to the incident, Parry recalls that the vessel ran the best it had run in recent years. (Docket Entry # 119-1, pp. 19-20).

         On Friday, August 15, 2015, Parry took the vessel from the yacht club to Provincetown harbor. During the trip, the vessel “ran really good, ” according to Parry. (Docket Entry # 122-1, pp. 32-33). After arriving in the harbor, the vessel stayed on a mooring until Sunday, August 17, 2014. (Docket Entry # 122-1, pp. 32-34). During that weekend, neither Parry nor any visitors noticed or reported a smell of gasoline. (Docket Entry # 122-1, p. 34). Parry went “out to dinner” on one of the evenings. (Docket Entry # 122-1, p. 34).

         On August 17, 2014, Parry left the vessel after locking and securing her to the mooring. (Docket Entry # 122-1, p. 35). He traveled by ferry to Boston and returned to Provincetown on August 20, 2014, at which point he boarded the moored vessel. (Docket Entry # 122, ¶ 44) (Docket Entry # 124, ¶ 44). On the morning of Saturday, August 23, 2014, Parry operated the vessel's engines for 30 minutes “without any issues or problems” in order to charge the batteries. (Docket Entry # 118, ¶ 8) (Docket Entry # 122, ¶¶ 8, 45) (Docket Entry # 124, ¶ 45) (Docket Entry # 122-1, pp. 38-39). He was alone on the vessel at the time. (Docket Entry # 122-1, p. 39).

         Parry left the vessel, still moored, later that day to go ashore and returned late in the evening. (Docket Entry # 122-1, p. 37). Parry and Lundmark, who arrived on the vessel at some point on August 23, 2014, stayed on the vessel that night. (Docket Entry # 122, ¶ 46) (Docket Entry # 124, ¶ 46) (Docket Entry # 122-1, p. 39). “During the weekend of August 23 and 24, Parry did not smell any gasoline while onboard the Vessel.” (Docket Entry # 118, ¶ 9) (Docket Entry # 122, ¶ 9).

         On Sunday, August 24, 2014, Parry “made the vessel ready to get underway.” (Docket Entry # 122, ¶ 47) (Docket Entry # 124, ¶ 47). Before he started the engines, he turned on the vessel's blower system. (Docket Entry # 122-1, pp. 41, 44). The blowers remained on after Parry started the engines. (Docket Entry # 122-1, p. 44). He did not smell any gasoline odor before he started the engines. (Docket Entry # 122-1, p. 45). Lundmark also did not indicate that he smelled any gasoline. (Docket Entry # 122-1, pp. 45-46).

         When Parry “started the engines, . . . the port engine backfired but eventually started up.” (Docket Entry # 122, ¶ 48) (Docket Entry # 124, ¶ 48) (Docket Entry # 122-1, pp. 43-44). Thereafter, it “sounded regular, ” according to Parry. (Docket Entry # 122-1, p. 44). With Parry at the helm, Lundmark released the mooring lines and returned to a seat on the port side to the left of the helm. (Docket Entry # 122-1, pp. 43, 47-48). Parry began driving the vessel and, “[s]hortly after letting go of the mooring lines, the port engine stopped.” (Docket Entry # 122, ¶ 49) (Docket Entry # 124, ¶ 49) (Docket Entry # 122-1, pp. 49-50). Parry restarted the port engine, turned “the blower off, ” proceeded to go through the mooring field, and, as he “near[ed] the wake zone, . . . started to give the boat more gas.” (Docket Entry # 122, ¶ 49) (Docket Entry # 124, ¶ 49) (Docket Entry # 122-1, pp. 50-52). When “the vessel was outside of the mooring area, [Parry] heard a lot of yelling and a lot of bangs.” (Docket Entry # 122, ¶ 49) (Docket Entry # 124, ¶ 49) (Docket Entry # 122-1, p. 52). Turning around, he “saw large flames going out of the engine compartment.” (Docket Entry # 122-1, p. 52).

         Following the explosion, the vessel burned and sank in the harbor. (Docket Entry # 1, ¶ 6). Parry's insurance company arranged for a recovery of the vessel. (Docket Entry # 1-2, ¶¶ 4, 6). On September 2, 2014, Massachusetts Environmental Police (“MEP”) Sergeant John Girvalakis (“Girvalakis”), the first person to inspect the vessel, took a number of photographs of the vessel, including the high pressure fuel system on the port engine.[11] (Docket Entry # 122, ¶¶ 11, 51) (Docket Entry # 124, ¶ 51) (Docket Entry # 122-4, pp. 2-3, 6) (Docket Entry # 125-5, p. 10) (Docket Entry # 118, ¶ 11). Another MEP Sergeant accompanied Girvalakis “for a portion of the time.” (Docket Entry # 125-5, p. 11) (Docket Entry # 119-1, p. 15).

         Girvalakis testified that he observed a fuel fitting on the high pressure fuel system for the port engine positioned with the nozzle pointed forward, away from the engine. (Docket Entry # 122-4, p. 7). Believing the position was incorrect, Girvalakis turned the fuel fitting clockwise such that it fitted “snugly.”[12](Docket Entry # 122-4, pp. 7-9). He described that the fitting “was loose and turned freely.” (Docket Entry # 122-4, p. 8). He then removed the fitting, looked inside, and observed “[w]hat appeared to be what was left of an O-ring.” (Docket Entry # 122- 4, p. 12).

         A second inspection of the vessel took place on October 14, 2014 at Bay Sails Marine in Wellfleet, Massachusetts, where the vessel was stored. (Docket Entry # 118, ¶ 11) (Docket Entry # 122, ¶ 11). The fire cause and origin investigators at the joint inspection included: Steven Sundquist (“Sundquist”), who represented Parry's interests; Michael Higgins (“Higgins”), who represented 3A Marine's interests; Michael Hennessy, who represented Lundmark's interests; and Girvalakis. (Docket Entry # 118, ¶ 11) (Docket Entry # 122, ¶ 11) (Docket Entry # 128-1). Sundquist and Girvalakis placed “the origin of the fire” as “the engine compartment.” (Docket Entry # 119-3, p. 10) (Docket Entry # 122-3, p. 7).

         Girvalakis could not rule out a maintenance mishap as the cause of the incident but “‘concluded'” that the incident was “‘accidental in nature.'” (Docket Entry # 119-3, p. 13) (Docket Entry # 122-4, p. 19). He could not say whether maintenance had an impact, other than the fact that boats do not spontaneously explode and “[s]omething would have” occurred to allow the explosive environment in the engine compartment. (Docket Entry # 119-3, p. 10). When asked whether he knew “what caused the looseness on the nut on [the] high pressure fuel system on the port engine, ” he replied, “No. I can't identify whether it was [a] human factor or if it was heat-related or some type of maintenance issue. I can't make that determination.” (Docket Entry # 119-3, p. 7). He did rule out a gas can located forward of the engine compartment, an outboard engine “taken off the dinghy, ” and criminal activity.[13] (Docket Entry # 122-4, pp. 18-19). Girvalakis also testified it was “not uncommon” to have “difficulty removing a vessel from the seafloor, ” which would change the condition of the vessel. (Docket Entry # 125-5, p. 9).

         Relevant testimony at Girvalakis' deposition, as highlighted by Parry and/or 3A Marine, reads as follows:

Q. When you write “I cannot rule out the possibility of a maintenance mishap at this time, ” what do you mean?
A. I mean boats just don't spontaneously explode.
Q. Sure.
A. So, in order for a boat to explode, you have to have some type of -- you have to have fuel, you have to have heat, you have to have oxygen, and in this case, you had to have some type of an explosive atmosphere in the rate [sic] mixture, ratio between fuel vapors and/or oxygen. It's a balance. If you have too rich an environment, you don't have combustion. If you have too lean an environment, you don't have combustion. What I'm saying is there was some type of a fuel issue in here in which they had an explosive environment created which ultimately caused the explosion and fire. Whether that's some type of maintenance issue, you know, maintaining the boat, working on the boat, changing filters on the boat, something to do with the fuel system on the boat, I can't be certain, and I can't direct you to a specific cause because the nature of the fire was so intense that a lot of items were burned, and heat significantly can distort things. And like I said, heat is the best type of wrench you can get. It will loosen up all types of stuff. That's not to say that a fitting was put on incorrectly or something was put on incorrectly to allow that to escape. Certainly that could be the case as well. I can't give you a definitive answer.
Q. So, your investigation didn't reveal that any of the fittings were not tightened by someone who serviced the engines?
[Objection].
A. Again, I can't definitively come out with that. I can tell you the origin of the fire was the engine compartment.
Q. So, when you say I cannot rule out the possibility of a mishap at this time, you're saying, forgive me, but so I understand, you don't know whether the maintenance had ...

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