United States District Court, D. Massachusetts
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
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
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).
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).
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.
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).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.” (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.(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).
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).
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. (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).
about July 7, 2014, Parry told Desmond about the smell of
gasoline and brought the vessel to 3A Marine. (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. (Docket Entry # 122-1, p. 25).
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,
Marine, Desmond “inspected the fuel system, and”
discovered “there was a conclave in the gas tank,
” according to Parry. (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.(Docket Entry # 125-1, pp.
17-19). When Desmond finished the repairs, Parry asked him if
the vessel was safe and Desmond replied,
“Yes.” (Docket Entry # 122-1, p. 29). Desmond
also spoke to Parry about the trim issue. (Docket Entry #
125-1, pp. 7-8).
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).
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).
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).
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).
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).
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,
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).
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. (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).
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.”(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).
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).
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. (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).
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.
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
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 ...