United States District Court, D. Maryland
MEMORANDUM OF DECISION
J. GARBIS UNITED STATES DISTRICT JUDGE.
Court has conducted the bench trial of Plaintiff Dann Marine
Towing, LC's (“Dann Marine”) claims against
Defendant General Ship Repair Corp. (“GSR”). The
Court has heard the evidence presented, reviewed the
exhibits, considered the materials submitted by the parties,
and had the benefit of the arguments of counsel. The Court
now issues this Memorandum of Decision as its findings of
fact and conclusions of law in compliance with Rule 52(a) of
the Federal Rules of Civil Procedure.
Court finds the facts stated herein based upon its evaluation
of the evidence, including the credibility of witnesses, and
the inferences that the Court has found reasonable to draw
from the evidence.
October 2011, the IVORY COAST, a Dann Marine tugboat, caught
fire and was seriously damaged while being repaired by GSR.
In this lawsuit, Dann Marine sues GSR for damages caused by
the fire. As discussed herein, the Court finds neither side
totally free of fault for the fire and neither side's
contentions to be totally correct.
the late 1960s, Dann Marine, a Maryland corporation based in
Chesapeake City, Maryland, has been engaged in providing
marine tug and towing services on the Chesapeake Bay and
other waters along the United States East Coast, as well as
in such locations as the Great Lakes, the Gulf Coast of
Mexico, the Caribbean, and South America. Dann Marine owns a
fleet of tugboats, one of which, built in 1967, is the IVORY
COAST (“the Boat”).
the 1920s, GSR has been a Maryland corporation, based in
Baltimore, Maryland, that provides ship repair services. Dann
Marine and GSR had a business relationship beginning about
10-15 years ago, under which GSR regularly provided repairs
to Dann Marine's boats.
September 2011, Dann Marine's Boat was active in service
transporting coal for a local utility, earning $4, 900 per
day. Dann Marine decided to schedule needed repairs to the
Boat. Robert Dann, the Dann Marine port engineer and a part
owner of the company, contacted Derick Lynch of GSR and
verbally described the work wanted. Derick Lynch arranged for
the GSR yard manager to survey the items to be repaired on
the Boat. A proposal [Def.'s Ex. 1] was prepared on
September 30, 2011 and sent to Robert Dann to review. Robert
Dann responded with a request that Dann Marine handle certain
service items itself rather than pay GSR. For example, Dann
Marine indicated it would provide the marine chemist
certificate and supply its own power by generator rather than
use GSR's shore power. The contract was finalized in the
form of a “yard specification” with a job number
and was dated October 5, 2011. See Def.'s Ex. 1.
number 8 on the second page of the yard specification
describes the work to be done to remove and replace some of
the steel along the starboard engine side of the
Boat. Id. This required preparation
of the Boat prior to commencing hot work,  including
cleaning the Boat's bilge and a marine chemist's
certification that the boat was safe for hot work. The
agreement provided that Dann Marine was to engage independent
cleaners and a marine chemist to certify the Boat safe for
Start of Repairs
about October 6, 2010, Dann Marine brought the Boat to
GSR's facility in Baltimore, Maryland to have the repairs
performed. Randy Ash (“Ash”), the Boat's
Chief Engineer, and a Dann Marine deckhand, Nick Jones
(“Jones”) remained aboard when the Boat was left
accordance with the parties' agreement, Dann Marine
contracted with A2Z Environmental Group (“A2Z”)
to clean the Boat's bilge in preparation for the hot
work. One of Dann Marine's port engineers, Jack Collins
(“Collins”), was directed to oversee that the
cleaning was done to the marine chemist's satisfaction
and to get the hot work certificate.
does not recall who contacted A2Z or the particular
instructions given A2Z. However, A2Z field supervisor, Frank
Merritt, testified that he was instructed by Collins
“[t]o clean from the centerline of the boat to the
starboard side to have it available for hot work.”
Tr. 3, 157:20-21, 160:13-16. Collins did
not arrive at the Boat until the A2Z cleaning was almost
complete. See Tr. 3, 30:21-25.
spent about eleven hours cleaning the Boat's two diesel
fuel tanks and pressure washing the bilge. The starboard and
port sides of the bilge are connected at the centerline. A2Z
removed the deck plates and removed all the liquid from the
lowest point of the bilge. It then performed a more detailed
and thorough cleaning of the starboard side by scraping,
bagging any solid residue (such as rags, bottle caps,
debris), degreasing, pressure-washing, and finally, vacuuming
up the liquids again from the lowest point of the bilge. A2Z
did not perform the detailed cleaning on the port side of the
bilge. The deck plates were left open for the marine
Capen (“Capen”) has been a marine chemist since
1981 and was regularly hired by both Dann Marine and GSR.
Capen arrived to inspect the Boat on Thursday, October 6,
2011 just as A2Z was finishing its cleaning. Collins,
signed off on the A2Z cleaning service, and met with Capen.
described to Capen the scope of work that was planned for the
Boat. Capen inspected the port fuel oil
tank, the starboard aft fuel oil tank, and the engine room
bilge, and took a number of sensor readings to
determine if the atmosphere was safe for workers and safe for
limited hot work. At about 4:30 p.m. on Thursday, October 6,
2011, Capen issued to Dann Marine a marine chemist
certificate that stated, in pertinent part:
Port [Fuel Oil Tank] Aft, [Starboard Fuel Oil Tank] Aft,
Engine Room > Atmosphere Safe for Workers[, ] Safe for
Limited Hot Work . . . .
(1) Hot Work Limited to replace rub rail [Starboard] Side No
Closer than 6” of [Forward Fuel Oil Tank].
(2) Hot Work in Aft [Fuel Oil Tanks] ([Port/Starboard])
repair of vents and sounding Tubes.
(3) Maintain Fire Watch and Ventilation during all hot Work
(4) [Shipyard Competent Person to Recheck daily prior
Pl.'s Ex. 2.
work commenced on the Boat the next morning, Friday, October
7, 2011. Walter Wise (“Wise”), GSR's shop
supervisor, was designated as the Shipyard Competent Person
(“SCP”). He reviewed the hot work certificate to
determine the limitations. Prior to starting the cutting in
the engine room, a fire watch and equipment was set up in the
engine room, a fire blanket was placed to cover the starboard
generator at the aft of the engine room, and Wise performed
his SCP inspection and report and posted the report with the
chemist's hot work certificate by the engine room door.
Steven Williams (“Williams”) began cutting out
old steel at the aft of the engine room and moving forward.
old steel was removed by cutting from the inside, new steel
could then be fitted and welded on from the outside of the
Boat by other GSR workers. At some point later on Friday, Ash
drained,  dismantled, and removed the upper
part of the starboard fuel manifold to make room for the
cutting to be done on Monday. The deckhand, Jones, assisted
with the dismantling, and Wise, noting them struggling with
the manifold, helped them lift it up and set it down on the
deck-plate on the port side of the engine room. Later on, the
GSR night-shift covered the open manifold pipes with rags and
tape to keep debris from getting in from their
needle-gunning activities preparing for
The Day of the Fire
work continued on the Boat on Monday, October 10, 2011,
starting at about 7:00 a.m. Wise performed the required SCP
inspection and report and posted the report in the envelope
with the chemist's hot work certificate by the engine
room door. His inspection included a visual spot check of the
bilges as well as the use of a
“sniffer” to test O2 (oxygen)
and LEL (Lower Explosive Limit) levels to ensure that
the area was still safe for hot work.
assigned Subhas Sankar (“Sankar”) to be the fire
watch and showed him what to do. Sankar and Williams prepared
for cutting by setting up lights, bringing in and draping the
cutting torch hoses so they weren't on the deck
where they could be tripped over, bringing in a charged
garden (water) hose with a squeeze nozzle at the end, and
stuffing fire blanket pieces in the holes on the
ledge under the area where Williams would
be cutting. Sankar was responsible for keeping an eye on the
welding on the outside of the engine room as well as
Williams' cutting on the inside.
the end of the morning, Wise came by to let Sankar know he
was being reassigned after lunch to a different task in the
shipyard. The cutting stopped at about 11:15 to allow 15
minutes for a cooldown before Williams and Sankar left the
engine room for their lunch break at around 11:30. After
lunch, Sankar did not return to the engine room but went over
to dry dock as he'd been assigned. Williams returned to
the engine room to resume work, accompanied by Wise, who took
over the fire watch duties from Sankar. They arrived back at
the engine room at around 12:10.
the Boat engineer, was working on board during the morning
and recalls working on paperwork in either his stateroom or
the wheelhouse. He reported taking his lunch break at noon in
the Boat's galley. After his lunch break, Ash went to the
engine room to perform some repair work on the starboard
generator. Ash does not recall anyone working in the engine
room while he was on lunch break, but he testified that when
he went down in the engine room after lunch to begin working
on the starboard generator, he saw a GSR worker cutting in
the forward starboard side of the engine room in the area
where the fuel manifold had been removed. Ash Depo. 74, ECF
No. 73-1. Ash does not recall seeing anyone other than
Williams in the engine room at that time.
Wise and Williams arrived in the engine room after lunch,
they prepared to start the cutting work again. Wise
spot-checked the bilge by lifting a couple of the bilge
plates in the forward engine room. He checked with a
flashlight to see if there was any liquid and found that the
bilge was dry. Wise gave a light spray of water up against
the side of the hull to wet it down a little in the area
where Williams would be cutting. Williams plugged the holes
in the ledge with fire cloth under the area where he would be
cutting, and Wise checked it. Wise positioned himself in
front of the starboard engine where he could also keep an eye
on the welding in the aft part of the engine room.
resumed cutting in the starboard forward end of the engine
room. He was crouched on the ledge, which was about six feet
above the engine room deck, and he was cutting just
underneath the main deck, which was about eight feet above
the engine room deck. Just behind him and slightly aft was
the wooden toolbox that was below where the fuel manifold had
been removed. Williams had not placed a fire blanket on the
painted wooden box because he felt it was in a “safe
zone.” Tr. 4, 30:14-24. As he continued to
cut, Williams felt a heatwave under him, “intense
enough to burn the hair out of [his] nostrils.” Tr. 4,
34:14-15. He looked down through his burning
shield and saw that he was engulfed in
flame. He turned off the torch and cast it aside to his
right, knocked the shield off with his hardhat, stretched
over with one foot to step down on the wooden box and
“hit the deck.” Tr. 4, 37:17-38:14.
saw Wise spraying water on the fire with the garden hose, but
the water seemed to make the fire worse rather than better.
Wise dropped the hose, and Williams tried spraying the fire
with the garden hose but the flames reacted by intensifying.
Wise picked the hose back up and continued spraying water.
Believing it must be an oil fire, Williams grabbed one of the
Boat's CO2 extinguishers and attempted to put
out the fire by aiming it at the bilge area from which it
appeared to him the flames were coming. But, the extinguisher
didn't have any effect at putting out the flames.
Realizing he wasn't doing any good, Williams threw the
extinguisher down and headed for the stairs leading out of
the engine room. On the way out, Williams saw Ash who was
about to come help him fight the fire with another fire
extinguisher. Williams told him to get out too, and they both
exited the engine room through the starboard side door. Wise
stayed where he was for a few seconds longer still trying to
douse the fire with water to no avail. The smoke and heat was
escalating quickly, and Wise left the engine room shortly
after Williams and Ash, exiting through the starboard aft
was made to 9-1-1, and fire department equipment was
dispatched. Williams was told that he secured the tanks
delivering gas and oxygen to the cutting torch, but he does
not recall doing it. Ash saw Jones on the dock and asked him
to call the Dann Marine office to let them know about the
fire. The GSR crew nearby ran fire hoses and began to fight
the fire. By 1:30 p.m., the fire department was on the scene,
Christian LaPense (“LaPense”), Dann Marine's
compliance manager, had left his office in Chesapeake City
and was on his way to GSR, and Derick Lynch was actively
helping coordinate with the fire response team.
was required to fight the fire, which was designated a Class
B (fueled by combustible liquid) fire.
The port generator had been left running, so Ash explained to
the firefighters how to turn it off by using the emergency
shutoff in the galley. However, the firefighters could not
access the shutoff, because it was already under boiling
water from the firefighting. Instead, the firefighters went
down into the engine room to shut it off according to
Ash's instructions. By about 2:00 p.m., the fire was out
and the generator secured.
bilge's electrical submersible pumps stopped working once
the generator was shut off. Because the Boat had leaking
packing glands,  submersible pumps were used to pump
overboard any water that collected in the bilge's
containment area. With no electricity to power the pumps,
water collected in the bilge, from both the firefighting and
the leaking. Dann Marine arranged to have the bilge pumped
out by A2Z. In addition to a significant amount of water,
about 350 gallons of fuel was pumped out of the bilge after
the fire. This fuel may have come from leaking fuel.
being cleared by the firefighters, Ash returned to the engine
room and saw that the sight glass had been damaged and
was leaking fuel. Ash turned off the valve, and the sight
glass leaking stopped. Ash testified that the leaking sight
glass could account for the 350 gallons of fuel that was
later pumped out of the bilge. Ash Depo. 60:20-61:1.
Marine's compliance manager, LaPense, arrived at the Boat
around 2:45-3:00 p.m. The fire was then out and one of the
fire trucks was leaving GSR, but the fire department was
still securing the scene. LaPense identified himself to one
of the firefighters and received permission to access the
Boat and document its condition. At that time, it was still
very hot in the engine room, with water dripping, steam,
foam, and water- soaked debris everywhere. The catwalk and
deck around the engine room was warped and heat-damaged. The
mess deck and galley were severely damaged, and the upper
level of the Boat was smoke-damaged. LaPense took pictures
and coordinated getting supplies for Ash and Jones and
checking them into hotel rooms. Robert Dann arrived at GSR
about an hour after LaPense and reviewed the Boat's
damage along with Derick Lynch.
point in the afternoon, the Coast Guard arrived. Seeing a
potential environmental problem with the water and oil
accumulating in the bilge, the Coast Guard directed Derick
Lynch to put the Boat on dry dock the next morning. However,
Robert Dann instructed Derick Lynch not to put the Boat on
the dry dock and made alternate arrangements to resolve the
liquid accumulation situation.
Dann Marine notified their respective insurers, who
dispatched fire investigators the day after the fire, October
11, 2011, to investigate the origin and cause of the fire.
Aaron Redsicker (“Redsicker”), a certified fire
investigator hired by Dann Marine's insurance company,
arrived at the Boat on the morning of October 11, 2011 to
begin his investigation.The Coast Guard and the
Baltimore City fire department also conducted an
October 12, 2011, Stephen Murphy (“Murphy”), a
marine surveyor hired by Dann Marine and its
insurer, met with Lee Goldberg (“Goldberg”), the
surveyor representing GSR and its insurer, and LaPense, and
did an initial walk-through of the Boat to assess
the extent of damage. Murphy drafted an initial report with
recommendations, including a recommendation that qualified
diesel mechanics look at the engines to see whether the fire
or the efforts to put out the fire had caused any damage to
the engines. Soon after, Flag Service and Maintenance Inc.
(“Flag”) was dispatched to do an inspection, and
they provided an initial estimate to repair the engines and
requested a joint survey. Murphy testified that
he believed he was doing a joint survey, but a joint report
was never actually produced. Murphy testified that he drafted
and signed a survey report and provided it to Goldberg and
LaPense on October 17, 2011, but Goldberg gave it back to him
Goldberg, and another surveyor returned to the Boat
for a follow-up visit on October 26, 2011. At that time, GSR
was re-welding the hole on the side of Boat, 
installing the rub rail and shell plate, stripping the loose
gear that had been damaged in the fire, and cleaning the Boat
in general. After that visit, on November 11, 2011, Murphy
sent an email to Goldberg confirming that he had
prepared a revised Field Survey Report but was continuing to
make further corrections and revisions and would submit a
revised draft for review within a couple weeks. In the
November 11 email, Murphy also noted that Robert Dann would
be supervising and coordinating all repair operations on
board the Boat and that Christopher Dann wanted all future
visits to the Boat to be pre-scheduled appointments made
through Dann Marine's representative, Murphy.
visited the Boat again on December 12, 2011. Goldberg learned
of the visit and emailed Murphy to question the status of the
joint report and to schedule a visit on December 16, 2011 to
check on the status of repairs. Murphy responded on the
morning of December 16, 2011, advising that he was waiting to
update the Field Survey Report until the full extent of
damages were known given that additional damages, such as
salt water damages to the engines, were still being
uncovered. Murphy suggested that a final joint survey
coincide with a visit to the Boat and to Flag Maintenance
where the main engine power packs were being taken for
inspection and overhaul. Goldberg responded an hour later
that he planned to stop by the Boat that afternoon for a
check-up visit. However, before he could do so, Cary Lynch
advised Goldberg that Claudio Crivici
(“Crivici”), who had been retained by GSR to
provide a comprehensive damages and repair recommendation,
was in contact with Murphy and planning a visit on Monday,
December 19, 2011. Crivici followed up with an email to
Goldberg a couple of hours later advising of the plan to meet
at the Boat on Monday morning to perform a survey and obtain
a signed survey report. Goldberg agreed to attend the joint
survey on Monday, December 19, 2011.
the day on Saturday, December 17, 2011, Dann Marine moved the
Boat out of the GSR shipyard with GSR equipment still on
board,  without GSR's knowledge, but
with approval from the Coast Guard. On Sunday, December 18,
2011, Christopher Dann sent an email to Goldberg, Crivici,
the Lynches, Murphy, and others stating that no further
surveys, visits, or investigations would take place on the
Boat unless Dann Marine's insurers expressed the need.
continued to work with Dann Marine's insurance company,
reviewing the repairs and commenting on each invoice
submitted regarding whether it was
claim-related or not.
heads were pulled from the engines just prior to Murphy's
survey at Dann Marine's headquarters in Chesapeake City,
Maryland in February 2012. Murphy noted rust spots on the
heads as well as the engines. The engines were then fully
disassembled and pulled from the Boat and delivered to Marine
Systems in Chesapeake, Virginia, where they were inspected by
Murphy in May 2012. Murphy suggested to Dann Marine's
insurance company that an engine specialist evaluate the
engine damages. Murphy went back to Chesapeake, Virginia in
July 2012 to inspect the engines with Robert Newman
(“Newman”), who had been selected as the engine
specialist. Newman provided a report to the insurance
company in August 2012. Murphy and Newman were later retained
as damages experts by Dann Marine.
Marine filed the Complaint [ECF No. 1] on May 30, 2012,
asserting five counts under admiralty jurisdiction:
. Count I - Breach of Contract,
. Count II - Breach of Implied Warranty of Workmanlike
. Count III - Negligence, . Count IV - Gross Negligence, and
. Count V - Breach of Bailment.
answered the Complaint on September 26, 2012, asserting
multiple defenses including one stating that the terms and
conditions of the contract contain an exculpatory clause that
expressly precludes Dann Marine from any recovery of any
damages, or in the alternative, limits GSR's liability to
the amount of $300, 000.00 of actual damages proven at trial.
Answer, ECF No. 14. GSR also asserted that Dann Marine's
own negligence precluded recovery, it failed to mitigate
damages, and that evidence had been spoliated by not allowing
proper survey and assessment of damages. Id.
discovery, on January 13 and 30, 2014, Dann Marine and GSR
filed cross-motions for partial summary judgment [ECF Nos.
32, 35] on the enforceability of the exculpatory clause in
GSR's terms and conditions. The Court, by Judge Quarles,
issued its decision on July 10, 2014, holding that the
exculpatory clause did not limit GSR's liability to Dann
Marine but only to third parties. Mem. Opinion 13, ECF No.
38. GSR's motion [ECF No. 32] was denied, and Dann
Marine's motion [ECF No. 35] was granted. Id. at
14; Order 1, ECF No. 39.
five-day bench trial was held June 20-24, 2016, followed by
post-trial briefing, and closing arguments were held on March
8, 2017. During closing argument, GSR again raised the
exculpatory clause defense and asserted that there were two
separate clauses, one of which had not previously been ruled
on by Judge Quarles, and contending that Dann Marine was
precluded from recovering damages in the event of fire,
regardless of negligence or cause. On April 18, 2017, Dann
Marine filed Plaintiff's Objection & Motion to Strike
[ECF No. 107] GSR's arguments for enforcement of the
contractual exculpation of all liability. That motion is also
now ripe for decision.
Breach of Contract
contract to repair a ship is considered a maritime contract.
Kossick v. United Fruit Co., 365 U.S. 731, 735
(1961); Sea Land Indus., Inc. v. Gen. Ship Repair
Corp., 530 F.Supp. 550, 556 (D. Md. 1982). “[I]n
an admiralty case, a court applies federal common law and can
look to state law in situations where there is no admiralty
rule on point.” Ost-West-Handel Bruno Bischoff GmbH
v. Project Asia Line, Inc., 160 F.3d 170, 174 (4th Cir.
1998). Although state law may serve to supplement federal
maritime law, maritime law controls if the two conflict.
Wells v. Libby, 186 F.3d 505, 524-25 (4th Cir. 1999)
(quoting Powell v. Offshore Navigation, Inc., 644
F.2d 1063, 1065 n.5 (5th Cir. 1981)). To the extent that
state law is not inconsistent with admiralty principles,
“state contract law may be applicable to maritime
contracts.” Ham Marine, Inc. v. Dresser Indus.,
Inc., 72 F.3d 454, 459 (5th Cir. 1995). Also, the
Uniform Commercial Code (“U.C.C.”) is considered
a source for federal admiralty law. See Princess Cruises,
Inc. v. General Elec. Co., 143 F.3d 828, 832 (4th Cir.
1998) (stating that “U.C.C. principles inform admiralty
Maryland law, a breach of contract claim requires a plaintiff
to “prove that the defendant owed the plaintiff a
contractual obligation and that the defendant breached that
obligation.” Taylor v. Nations Bank N.A., 776
A.2d 645, 651 (Md. 2001). The plaintiff need not prove
damages resulting from the breach, because it is well settled
that where a breach of contract occurs, one may recover
nominal damages even when there is a failure to prove actual
damages. Id. (citations omitted). But “[u]nder
both tort and contract law, one claiming damages must prove
that a tortious act or breach of contract was the proximate
cause of the damages claimed.” CR-RSC Tower I, LLC
v. RSC Tower I, LLC, 56 A.3d 170, 196 n.41 (Md.
parties agree that the contract contained an express
provision requiring GSR to provide a fire
watch. Dann Marine contends that GSR
breached this express provision of the contract by failing to
provide the necessary fire watch on the afternoon of October
10, 2011. This contention is primarily based on Ash's
testimony that he did not see Wise or any other fire watch on
the Boat after the mid-day lunch break.
Marine also cites as additional evidence that there was no
warning to Williams about the fire, Williams rather than Wise
discharged the CO2 fire extinguisher, and Wise's reported
escape route from the engine room is unusual and incredible.
Wise and Williams credibly testified that Wise was acting as
fire watch on the afternoon of October 10, 2011. The Court
accepts that Ash may not have seen Wise even though he was
actually there but not visible to Ash. The Court finds that
Wise was present on the Boat as fire watch on the afternoon
of October 10, 2011.
GSR did not breach the express provision of the contract that
required it to provide a fire watch during hot work.
Breach of Implied Warranty of Workmanlike
contractor in admiralty is to effect ship repairs in a
workmanlike manner.” Little Beaver Enters. v.
Humphreys Rys., Inc., 719 F.2d 75, 77 (4th Cir.
1983)(citations omitted). “Though the implied warranty
of workmanlike performance is a legal standard, the question
of what is required in a workmanlike performance is
necessarily a factual question that naturally varies from
case to case based on the scope and nature of the service
being undertaken.” N. Ins. Co. of N.Y. v. Point
Judith Marina, LLC, 579 F.3d 61, 68 (1st Cir.
implied warranty of workmanlike performance is broad and has
been applied to find fault where repair jobs are not
performed properly and “where efforts intended to
prevent damage to a ship have been ineffective.”
Little Beaver, 719 F.2d at 77. While the warranty
parallels a negligence standard, as opposed to strict
liability, it is not necessary to find that the repairer was
negligent, nor does negligence on the shipowner's part
block the owner from recovering for a breach of (1st Cir.
1986)(“The shipowner's negligence does not bar 
indemnity . . . arising from an implied warranty of
workmanlike service . . . . [A]pplication of [the
repairer's] indemnity rests on elements of expertise,
control, supervision and ability to prevent accidents . . .
.”). Although some circuits have
apportioned fault in such cases, “the Fourth Circuit
has never embraced a comparative fault approach.”
Matter of Robbins Mar., Inc., 906 F.Supp. 309, 316
(E.D. Va. 1995); see also Chisholm v. UHP Projects,
Inc., 205 F.3d 731, 734 (4th Cir. 2000)
(“Liability for the breach of the warranty of
workmanlike performance arises without fault and appears to
approach strict liability.” (citing Salter Marine,
Inc. v. Conti Carriers and Terminals, Inc., 677 F.2d
388, 390 (4th Cir. 1982))). “A causal connection must
be established between the claimed breach and the harm
suffered.” SS Amazonia v. New Jersey Exp. Marine
Carpenters, Inc., 564 F.2d 5, 10 (2d Cir. 1977).
warranty does not imply a guarantee of results, and
“the extent of the warranty depends on ‘the
circumstances of (the) case relating to control, supervision,
and expertise.'” Tebbs v. Baker-Whiteley Towing
Co., 407 F.2d 1055, 1059 (4th Cir. 1969)(quoting H
& H Ship Service Co., v. Weyerhaeuser Line, 382 F.2d
711, 713 (9th Cir. 1967)). If the repairer has performed with
the requisite degree of diligence, attention, and skill, or
if the repairer's efforts “have been hindered by
the actions of the other contracting party, the repair firm
will not be held responsible . . . .” Little
Beaver, 719 F.2d at 78.
instant case, GSR had a contractual duty to perform the hot
work on the Boat with care and diligence. As well, GSR had a
contractual duty to prevent fire on the Boat during the hot
work by providing the SCP, a fire watch, and taking
appropriate preventive measures. Dann Marine contends that if
Wise was present on the Boat as fire watch, his performance
was deficient - “the functional equivalent of not
having a fire watch.” Pl.'s Post-trial Br. 15, ECF
Court finds that the preponderance of the evidence
establishes that Wise, as fire watch, failed to cover or
remove fire hazards, such as the wooden toolbox, with fire
blankets, failed to adequately spray the hull to keep it
cool, and failed to respond diligently at the first sign of
flame. Tr. 4, 37:6-38:22, 75:12-76:6, 111:12-17, Tr. 5,
51:14-52:8. The evidence also establishes that flames and
smoke are inevitable in a hot work zone due to hot slag and
sparks. Tr.4, 116:24-117:14. The Court finds that Wise failed
to use the degree of diligence, attention, and skill adequate
to the task of being a fire watch, and, as a result, the
inevitable flames were not controlled and the Boat was
damaged. Certainly, it is foreseeable that damage could
result from a failure adequately to perform fire watch duties
in a hot work environment.
asserts that Dann Marine failed to have the Boat properly
cleaned for hot work and provided inadequate information to
the chemist and argues that such failures relieve GSR of
responsibility. However, Dann Marine did not prevent, nor
hinder, GSR from doing its duty to inspect or take preventive
measures to avoid or minimize fire during hot work. As SCP,
Wise had the expertise,  the control, and the supervisory
duty to ensure the Boat was safe for hot work before it
commenced, and as fire watch, he had the duty to ensure it
remained safe while the hot work was ongoing. Wise failed to
take reasonable care to fulfill his duties, and his failure
resulted in an uncontrolled fire that damaged the Boat. Any
evidence of fault on Dann Marine's part neither relieves
GSR of its duty to act competently nor precludes Dann
the Court finds that GSR breached the implied warranty of
Breach of Bailment
the relation created through the transfer of the possession
of goods or chattels, by a person called the bailor to a
person called the bailee, without a transfer of ownership,
for the accomplishment of a certain purpose, whereupon the
goods or chattels are to be dealt with according to the
instructions of the bailor.
Danner v. Int'l Freight Sys. of Washington, LLC,
855 F.Supp.2d 433, 448 (D. Md. 2012)(quoting Broadview
Apts. Co. v. Baughman, 350 A.2d 707, 709 (Md. 1976)).
Under Maryland law, a bailment consists of the following
(1) An existing subject-matter;
(2) A contract with a reference to the subject matter, which
involves possession of it by the bailee;
(3) Delivery, actual or constructive; and
(4) Acceptance, actual or constructive.
contract for the storage or repair of a boat constitutes a
bailment agreement.” Commercial Union Ins. Co. v.
Bohemia River Assocs., Ltd., 855 F.Supp. 802, 805 (D.
Md. 1991)(citation omitted). The bailment imposes on the
shipyard a duty of reasonable or ordinary care to avoid loss
or damage during the performance of its contractual duties.
Nat'l Liab. & Fire Ins. Co. v. R & R Marine,
Inc., 756 F.3d 825, 830 (5th Cir. 2014).
admiralty law, a rebuttable presumption of negligence is
inferred if the bailor proves that the vessel was delivered
in good condition and was damaged while in the exclusive
possession of the bailee. Commercial Union, 855
F.Supp. at 805. The burden then shifts to the defendant, who
can rebut the presumption in two ways:
(1) by affirmatively showing defendant's use of
reasonable and ordinary care, or
(2) by proving that the damage was not attributable to the
is, however, no presumption of negligence inferred if the
bailor cannot establish that the bailee had exclusive
possession and control of the vessel. Id.; see
also Man Ferrostaal, Inc. v. M/V Akili, 704 F.3d 77, 88
(2d Cir. 2012) (“A bailment does not arise unless
delivery to the bailee is complete and he has exclusive
possession of the bailed property.”).
argues that it did not have exclusive possession of the Boat.
A Dann Marine chief engineer, Ash, and a deckhand, Jones,
stayed aboard the Boat during the time it was at GSR until
the fire. They performed maintenance repairs, ran a generator
to provide power to the Boat, and removed the fuel manifold
to make room for GSR's hot work. Additionally, Dann
Marine's port engineer, Collins, directed and inspected
the cleaning of the Boat in preparation for hot work after
the Boat arrived at GSR. Dann Marine contracted with the
marine chemist, Capen, and Collins met with Capen at the Boat
to review the scope of work and obtain the Marine Chemist
bailment becomes limited under circumstances where the owner
remains or has an agent or employee responsible for the
vessel, such that exclusivity of control is compromised.
R & R Marine, 756 F.3d at 831. However, mere
access to the vessel by the bailor or its agents does not
affect exclusive possession. Goudy & Stevens, Inc. v.
Cable Marine, Inc., 924 F.2d 16, 19 n.3 (1st Cir. 1991).
“Rather, [exclusive possession] implies that possession
and control must be of such a nature as to permit a
reasonable trier of fact to infer that the bailee is in the
better, or sole, position to explain what actually
happened.” Id. at 19; see also
Fireman's Fund Am. Ins. Co. v. Captain Fowler's
Marina, Inc., 343 F.Supp. 347, 350 (D. Mass.
1971)(holding that the presumption did not apply when neither
party had knowledge of the origin of a fire but the cause was
Goudy, the First Circuit affirmed the lower
court's finding that, “since both parties had
equally unrestricted access to the vessel at all times, there
was no basis for an inference of negligence . . . .”
Id. In R & R Marine, the Fifth Circuit
upheld the lower court's finding that the shipyard had
full custody of the vessel under circumstances where the
shipyard had stipulated to having full custody in the
parties' agreement, and the presence of the owner's
agents did not create a limited bailment. 756 F.3d at 831.
instant case, there was no stipulation in the parties'
agreement related to GSR accepting full custody or exclusive
control. Rather, Dann Marine specifically retained control
over various aspects of the repairs and had employees on
board at all times prior to the fire. GSR also argues that
Dann Marine's removal of the Boat after the fire without
notification to GSR is evidence that GSR never had exclusive
control over the Boat. However, the Court does not find Dann
Marine's removal of the Boat after the fire relevant to
GSR's control prior to the fire.
Court finds that, under the circumstances herein, only a
limited bailment was created. GSR's possession and
control over the Boat was not of such a nature as to permit
an inference that GSR “is in the better, or sole,
position to explain what actually happened.”
Goudy, 924 F.3d at 19. However, even without any
presumption of GSR's ...