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Sail Zambezi, Ltd. v. Maryland State Highway Admin.

Court of Special Appeals of Maryland

April 30, 2014

SAIL ZAMBEZI, LTD.
v.
MARYLAND STATE HIGHWAY ADMINISTRATION

Page 593

Appeal from the Circuit Court for Anne Arundel County, Judge.

Argued by: J. Dirk Schwenk of Annapolis, MD for Appellant.

Argued by: Courtney D. Thornton (Andrew B. Greenspan, Greenspan, Hitzel & Schrader on the brief) all of Linthicum, MD for Appellee.

Panel: Eyler, Deborah S., Meredith, Kenney, James A., III (Retired, Specially Assigned), JJ.

OPINION

Page 594

[217 Md.App. 141] Kenney, J.

Sail Zambezi, Limited (" Sail Zambezi" ), appellant, appeals the judgment entered against it in the Circuit Court for Anne Arundel County in favor of the Maryland State Highway Administration (" MSHA" ), appellee. It presents two questions for our review:

1. Did the Circuit Court err as a matter of law in including [the Code of Federal Regulations (" C.F.R." )] 33 C.F.R. § [§ ] 117.19-21 in the jury instructions?
2. Did the Circuit Court err as a matter of law in holding that the spreadsheets documenting the repair bills for the Zambezi were not admissible?

For the reasons that follow, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Sail Zambezi's sole asset is the Zambezi, a 60' Oyster sailboat. On October 16, 2010, Paul Gordon (" Mr. Gordon" ), the owner of Sail Zambezi, took the Zambezi out for a day of sailing along with his wife, a friend, and the Zambezi's full-time captain, Guy Kalron (" Captain Kalron" ). Going out, the Zambezi traveled downstream through the Spa Creek bridge (sometimes referred to as the Eastport bridge), a drawbridge that crosses Spa Creek connecting Annapolis and Eastport. The drawbridge is controlled by a drawtender located on the west side of the bridge. After sailing for several hours, the Zambezi returned and waited near the Annapolis City Marina for the bridge to open. Sometime before 2:00 p.m. the drawtender, David Anderson (" Mr. Anderson" ), received a call requesting that the bridge open. At approximately 2:00 p.m., Mr. Anderson opened the bridge, and boats heading downstream passed through first. The Zambezi, without signaling to the drawtender that it was going to pass through, began moving upstream toward the bridge. Another boat also heading upstream passed in front of the Zambezi and went through before the Zambezi. The drawbridge began to close as the Zambezi was proceeding through the bridge opening. When [217 Md.App. 142] Captain Kalron observed the bridge closing, he reversed the direction of the boat, but the bridge and boat collided. When Captain Kalron called Mr. Anderson immediately after the collision, Mr. Anderson said he never saw the Zambezi in the water or on his video screen in the bridge operating station.

On May 19, 2011, Sail Zambezi filed a complaint[1] in the circuit court alleging that MSHA was negligent in that it breached its duty of care to the Zambezi because the drawtender " failed to observe the Zambezi approaching the bridge" and that the " Zambezi was in plain view prior to the time the bridge went up and should have been in plain view of the video camera or mirror after the bridge went up." Sail Zambezi further claimed that MSHA failed to maintain properly working mirrors and cameras. This breach of duty and the drawtender's breach of duty resulted in the bridge striking the mast of the Zambezi and the hull of the Zambezi

Page 595

striking the side of the bridge. Sail Zambezi alleged that as a direct and proximate result of MSHA's negligence, it suffered $77,200.29 in damages.

In its answer, MSHA asserted Sail Zambezi's contributory negligence and assumption of the risk as affirmative defenses. On March 30, 2012, MSHA filed a third-party complaint against Captain Kalron alleging that any damage to the Zambezi was caused by his " acts or omission." MSHA alleged entitlement to indemnification by Captain Kalron for any sums it was obligated to pay Sail Zambezi.

On October 16, 2012 the trial court addressed certain issues pretrial including jury instructions regarding the general requirements for signaling a drawtender prior to going through an open bridge span. Sail Zambezi argued that the specific Spa Creek bridge regulation, 33 C.F.R. § 117.571, varied from the general requirement that each boat must signal because [217 Md.App. 143] the regulation states that " the draw shall open on the hour and half-hour from 9:00 to 4:30 p.m.," the time frame during which the collision of the Zambezi and the bridge occurred. MSHA countered that the Spa Creek bridge regulation was not at variance with the general requirement that a boat must still signal the drawtender. The trial court, agreeing with MSHA, found that " the applicable law would require a signal of some sort, notwithstanding the hours of operation."

During the trial, Captain Kalron testified as to his understanding of the bridge signaling requirements. He " knew that on Sundays and Saturdays and public holidays, [the bridge] opens on the hour and a half hour for waiting boats." Noting a difference between winter and summer, he stated " that in the season between the beginning of May and the end of October[, the bridge] would open for boats who are waiting. . ." Captain Kalron also noted that the sign on the bridge had the drawtender's phone number, but not a radio channel on which to call him. On cross-examination, he testified that he was also familiar with the C.F.R. provisions that require each vessel to signal if more than one vessel is approaching a bridge and that if a bridge is open, each vessel approaching will also signal. He acknowledged that there was nothing on the Spa Creek bridge sign indicating that no signal was required.

The drawtender testified that even though the sign says the bridge will open on the hour and the half hour, " it's in the manual that there has to be - - someone has to contact me - - . . . for me to open the bridge."

The trial court gave the following jury instruction regarding the regulation:

The operator of each vessel requesting a drawbridge to open shall signal the draw tender and the draw tender shall acknowledge that signal. The signal shall be repeated until acknowledged in some manner by the draw tender before proceeding.
When two or more vessels are approaching the same drawbridge at the same time or nearly the same time, [217 Md.App. 144] whether from the same or opposite directions, each vessel shall signal independently for the opening of the draw and the draw tender shall reply in turn to the signal of each vessel.
The draw tender need not reply to signals by vessels accumulated at the bridge for passage during a scheduled open period. When a vessel approaches a drawbridge with the draw in open position the vessel shall give the opening signal. If no acknowledgment is received within 30 seconds, the vessel may proceed with caution through the open draw.

Page 596

During the trial, an issue involving the admissibility of testimony regarding the reasonableness of the cost of repairs arose. MSHA argued that, because the case had not been filed under § 10-105 of the Courts and Judicial Proceedings Article (" C.J.P." )[2] of the Maryland Code, there was " still a requirement for proof of genuineness and authenticity and fairness and reasonableness of the goods and services. . . ." Sail Zambezi stated its intent to introduce the repair bills as a business record and provide testimony regarding the charge [217 Md.App. 145] and its reasonableness, but had not gotten to that point in its case. The trial court noted:

So I am trying to anticipate some things. All right. So I don't believe that the business records exception excludes the requirement that the bill is somehow authenticated or whatever. And you haven't even complied with the provisions of [C.J.P. ยง ] 10-105, which would be applicable in a ...

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