Opinion
Case No.: 3:02cv510/RV
December 31, 2003
ORDER AND MEMORANDUM OPINION
In this action brought pursuant to this court's admiralty jurisdiction, plaintiff Reel Therapy Charters, Inc., ("Reel Therapy Charters") individually, and for the use and benefit of its insurer, Indemnity Insurance Company of North America ("IICNA"), seeks to recover damages from the defendant, Marina Management, Inc., ("Marina Management") for negligence and breach of an oral contract. The action involves the partial flooding of Reel Therapy Charters' vessel after being launched by Marina Management in its boat lift to a slip in its marina, the Bahia Mar Marina. This action was tried before the Court, without a jury, in a one-day trial. After considering the pleadings, the parties' stipulations, all the evidence in the record, and the arguments of counsel at trial, I conclude that Reel Therapy Charters failed to prove by a preponderance of the evidence that Marina Management was negligent or in breach of contract. As is required by Rule 52 of the Federal Rules of Civil Procedure, I make the following findings of fact and conclusions of law.
I. FINDINGS OF FACT
The F/V REEL THERAPY is a forty-two foot 1994 Post charter fishing boat originally purchased by Reel Therapy Charters in 1997 for $92,500. At the time of the vessel's purchase, Edwin Thompson was the sole officer and shareholder of Reel Therapy Charters. Also the ship's captain, Thompson operated the Reel Therapy as a charter fishing boat out of a marina in Orange Beach, Alabama. Between 1997 and 2002, no major capital improvements were made, but the vessel underwent routine maintenance at the end of every fishing season, which ends in mid-November. Specifically, at the end of each season, various wear and tear on the vessel, such as the carpet and upholstery, was repaired, and routine engine work was performed. The condition of the Reel Therapy did not change appreciably between its purchase and its partial sinking in 2002. In 2000, both of the vessel's two diesel engines were completely rebuilt, as was required every several years. Because Reel Therapy Charters was short of funds, it was forced to borrow $13,000 to have the engine work completed.
The vessel was surveyed prior to purchase and valued at $98,000. The vessel was insured at that value.
In early 2002, the Reel Therapy experienced engine problems, and it was determined that the engines needed to be overhauled again. However, the note for the previous repairs made in 2000 had not yet been fully repaid, and Reel Therapy Charters was again short on funds. Thompson contacted two individuals, Martin McGreevy and Jake Hancock, who each orally agreed, in exchange for a one-third interest in the future profits of the vessel (if any), to help fund the vessel's repairs. McGreevy, Hancock, and Thompson all personally guaranteed a $50,000 loan to Reel Therapy Charters for the purposes of paying off the previous loan and obtaining the necessary repairs.
In the year 2001, Thompson reported a net income of only $12,000 from the operation of the Reel Therapy after all of the expenses of operating the vessel were paid. He testified that he had no income from the operation of the vessel in the year 2002.
In early 2003, after the relevant events in this case, McGreevy and Hancock each obtained one-third of the shares of stock of Reel Therapy Charters, apparently in exchange for the capital they had previously invested. Thompson later sold all of his remaining interest in Reel Therapy Charters to McGreevy and Hancock.
On April 10, 2002, Reel Therapy Charters contacted Bahia Mar Marina about taking the Reel Therapy out of the water, storing it ashore while a mechanic performed repairs to the vessel, and launching the vessel after the repairs were completed. Reel Therapy Charters brought the Reel Therapy to the Bahia Mar Marina in April of 2002, and Marina Management hauled the vessel out of the water and placed it on blocks in the self-service area of the marina's boatyard, so the repair work could be performed. Reel Therapy Charters hired its own mechanics to perform the repair work and hired other persons to perform other maintenance, including painting the vessel's interior. Marina Management was not authorized to perform any repair work or to board the vessel other than as necessary in relation to the hauling, blocking, and launching of the vessel. Initially, Alvin St. Germaine was hired to rebuild of the vessel's engines and was paid between $1 5,000-$20,000 for the work he performed. At Reel Therapy Charters' direction, Marina Management launched the vessel for a sea trial on May 23, 2002, though the details surrounding this launching are not in evidence.
Specifically, the Bahia Mar Marina work order which Thompson signed stated that marina "employees may operate the above described boat, motor(s) and/or trailer, and my motor vehicle for purpose of testing, inspection or delivery at my risk." (Def. ex. 1). The work order indicates that Reel Therapy Charters was charged a total of $1079.30 for the hauling, blocking, storing, and launching of the Reel Therapy for the period between April 11, 2002, and May 23, 2002.
During the sea trial, before the vessel had even left the bayou in which the marina was located, it was discovered that St. Germaine had improperly installed a head gasket which allowed seawater to intrude into the starboard engine, causing a piston to seize. The Reel Therapy was returned to the marina for further repairs. Because St. Germaine could not be located, Andy Opachick was hired to complete the repairs. Reel Therapy Charters delegated Opachick the authority to direct Marina Management with respect to the vessel. After it was returned to the marina, the Reel Therapy was kept dockside from May 23, 2002, until June 24, 2002, while Opachick began the repairs. During this time, Opachick disconnected the seawater intake hose from the starboard engine and closed the seawater intake valve. The seawater intake valve or sea cock is a ninety-degree ball valve with a long yellow handle located on the bottom of the vessel's hull, below the deck of the vessel's salon in a corner of the engine compartment. The seawater intake hose is made of fairly stiff rubber and runs several feet from the valve to the engine. Seawater is pumped in from the intake through-hull fitting, through the valve and hose, to cool the engine, and it is then discharged overboard. Even with the floorboards to the vessel's salon removed, exposing the engine compartment, the view of the seawater intake valve from the ship's deck is obstructed by other equipment. Access to the valve is difficult and would require climbing into the engine compartment.
In discussions between Opachick and Reel Therapy Charters, they concluded that the entire starboard engine may have to be removed. In order to accomplish this task, Opachick and Reel Therapy Charters agreed that the vessel would have to be hauled and blocked again, and they directed Marina Management to do so on June 24, 2002. Opachick later discovered that the engine did not need to be removed, but that the head gasket, cylinder lining, and cam shaft needed to be replaced.
Reel Therapy Charters did not sign a new work order for this service until the vessel was later returned. Neither of the parties disputes that the terms of the prior work order govern the events after the vessel was returned to the marina following the May 23 sea trial.
Reel Therapy Charters informed Opachick that it had charters scheduled for the upcoming Fourth of July holiday weekend and that it hoped the repairs would be completed by then. Opachick finished most of the repair work while the Reel Therapy was still blocked, and at 9:30 a.m. on the morning of Tuesday, July 2, 2002, he directed Marina Management to launch the vessel so that its hull could return to the proper shape before the shaft alignment was done the following day. Before he left the marina, Opachick did not reattach the seawater intake hose to the starboard engine because he still needed to perform more work on the engine, including reinstalling the engine's head and performing a tune up, before the next sea trial. Opachick believes that the seawater intake valve was closed before the launch, but he is unsure, though there was no reason for him to open the valve during his repairs. At least two other workers were painting and doing other maintenance on the Reel Therapy while it was on the blocks. Opachick also left the salon door open, the hatches unlocked, and the engine compartment easily accessible. He did not tell anyone at Bahia Mar that he had left the seawater intake hose disconnected. Opachick did not perform a thorough check of all of the through-hull fittings to ensure that no valves were open before he directed the marina to launch the vessel. Opachick advised David Hairelson, the Bahia Mar Marina's manager, that he would not be present for the launching, though it is customary for either the vessel's owner or someone responsible for it, to be present. Reel Therapy Charters was not advised that the vessel was being launched, and Thompson was offshore on a fishing charter during the launch. Hairelson agreed to launch the vessel before the end of the day. Opachick did not tell Marina Management that he or the vessel's owners would return to the vessel that day after the launch, but he did not tell Marina Management that they would not be back, either. This left Marina Management employees uncertain about whether anyone would return to the vessel that day, but Hairelson said he assumed that Opachick or Thompson would return and claim the vessel and move it to a nearby mooring and out of the launching slip. Marina Management has a policy that it does not release a vessel from the slings of the boat lift until the vessel's owner has paid for the marina's services.
When a vessel is on blocks, its hull deforms slightly. The vessel must be returned to the water so that the hull may regain its normal shape for shaft alignment. The accepted minimum time to regain the normal hull conformation is 24 hours. Thus, the vessel needed to be back in the water on July 2nd for Opachick to be able to complete the shaft alignment on July 3rd.
Marina Management launched the vessel some time between 4:00 p.m. and 4:30 p.m. that day, leaving boat lift's slings underneath the freely floating vessel, with the bow facing the marina's parking lot. The vessel was launched into Marina Management's boat lift slip which is a long, rectangular slip with a concrete seawall surrounding it on three sides. Depending upon the tide, the top of the seawall is between three and four feet above the water level. The seawall also has metal rails around its three sides which serve as guides for the boat lift. The launching process involves the boat lift rolling the vessel, in the slings, over the slip and then lowering it into the water. The Reel Therapy was launched into the water without incident, with its bow toward the enclosed end of the slip. Opachick called at least twice that day and asked Hairelson if the vessel had been launched. Hairelson called Opachick to notify him that they were launching the vessel, and he testified that he thought that Opachick would come to the vessel quickly since had had called twice to check on it.
Typically, Marina Management launches its last vessel by 3:00 p.m. or 3:30 p.m., and no later than 4:00 p.m. The marina employees responsible for hauling, launching, and blocking vessels all usually leave work at 5:00 p.m. The only marina personnel who remain after 5:00 p.m. are deckhands who work in another area and assist boat owners with docking and refueling.
Thomas Denham, a marina employee, operated the boat lift and launched the Reel Therapy with the assistance of Richard Sims. The typical process involves the marina returning custody to the vessel owner after it has been launched. Denham and Sims expected the owners to arrive to take custody of the vessel, and both waited on the seawall by the vessel's port side for the owners or Opachick to show up. Neither Denham nor Sims heard the vessel's bilge pumps running at any time, nor did they see or hear any water being discharged by the bilge pumps. Around this same time, Hairelson also walked on the seawall around the vessel and did not notice the bilge pumps running or any unusual sounds. Denham, Sims, and Hairelson all knew the vessel had been undergoing engine repairs, but were not aware of what repairs had actually been performed.
Normally, Marina Management has an unwritten policy that employees are not to board vessels to inspect them after launch when the marina did not perform any maintenance on the vessel. At trial, Hairelson explained that the policy exists to prevent allegations of theft or property damage by marina employees while vessels are being hauled, launched, or repaired, and to prevent marina employees from injuring themselves while aboard customers' vessels. This policy is common and was utilized by Brown's Marina, the place where Opachick and Hairelson had worked together for many years. After Denham and Sims had stayed with the vessel for fifteen to twenty minutes without the owners or Opachick showing up, Denham decided to moor the vessel in the boat lift slip until the owners came. Denham and Sims secured the Reel Therapy in the boat lift slip with two forward and two aft lines.
Even though vessels on which maintenance has been performed frequently have loose fittings or hoses which allow water to intrude, Marina Management also has a policy that it does not inspect all existing through-hull fittings on a vessel that it launches when the marina has not performed the repair work. Nevertheless, Denham briefly inspected the Reel Therapy for water intrusion. Denham looked into the salon door, into the exposed engine compartment, and observed no water intrusion in the engine compartment or anything else unusual. He did not hear any splashing sound and did not hear or see the bilge pumps running. Denham did not go down into the engine compartment or inspect any of the vessel's through-hull fittings, but he could see to the hull between the vessel's stringers near the engines and did not see any water. Denham also looked in the aft hatches, and in the center of the vessel's bilge, to see if the vessel was taking on any water, but did not see any. Hairelson had told Denham to wait with the vessel until the owners arrived, but it was now 5:00 p.m. After being with the vessel about thirty to forty-five minutes after the launch, and not noticing anything unusual, Denham decided to leave the Reel Therapy moored in the boat lift slip, floating slightly above the lift slings, so that the owner could move it later that day after the marina had closed. Denham, and the rest of the marina employees left shortly after 5:00 p.m., walking directly by the port side (where the forward bilge pump discharges overboard) of the moored Reel Therapy and noticing nothing unusual about the vessel.
But the marina performs a thorough inspection of a launched vessel when it performs the repair work, including inspecting all through-hull fittings.
Denham was told by Hairelson to leave the vessel in the lift slings until the owner took it.
Upon arrival early the next morning, Marina Management employees discovered the Reel Therapy resting in the slings of the boat lift, which had prevented the vessel from sinking, but still a few inches below its normal level in the water. Inside, the vessel had flooded to a depth of approximately thirty inches. Opachick testified that he later discovered that the seawater intake valve leading to the disconnected seawater intake hose had been left open, allowing seawater to flood the engine compartment, and eventually the whole vessel to a depth of approximately thirty inches. The parties agree that leaving the intake valve open was one (and I conclude the leading) contributory cause of the partial sinking of the Reel Therapy. Who left the valve opened (or intentionally opened it), and when it was opened remains a mystery. The evidence presented at trial could lead to many possible (and reasonable) inferences. Opachick may have left the valve open himself prior to the launch, and he admits that he is not sure whether he did or not. Reel Therapy Charters' employees, John Andrews and Bill Sinard, who were also working on the boat in the same area as the valve, may have inadvertently opened the valve. Because the Reel Therapy had experienced a history of major engine problems and was losing money, the valve may have been opened intentionally by someone who boarded the vessel that night after it was launched in order to purposefully sink it. Finally, though less likely, the valve may have been opened by vandals. The plaintiff did not prove (or disprove) any one of these possible inferences with any reasonable degree of certainty. It is undisputed that Marina Management did not itself open the valve. However, the plaintiff's theory is that if the valve was actually open at the time of the launch, a reasonable inspection by the marina would have discovered and corrected it.
However, a letter from the claims adjuster to the underwriter indicated that the cause of the flooding was a strainer cap not reset properly. (Def. ex. 5, at 2). At trial, the parties seemed to agree that the water came into the boat via the opened sea cock and disconnected seawater hose.
Andrews and Sinard apparently painted the engine compartment's interior. To paint the hull in the area around the intake valve, one would have to open the valve. The valve handle was found with paint on it. Opachick stated Sinard may have stayed to work on a vessel after he left the marina on July 2. Neither Andrews nor Sinard testified at trial.
The Reel Therapy was equipped with two automatic bilge pumps, a 2000 gallon per hour pump in the bow and a 500 gallon per hour pump in the stern. By design, the normal flow of water would be to the bow, and then pumped through the bow bilge pump out of the vessel through the bow bilge's through-hull fitting, which was on the vessel's port side. The stern bilge pump was a backup that would operate only when the bow's bilge pump could not keep up with the inflow. Its discharge was at the stern near the exhaust. However, there was no evidence presented that the bilge pumps actually worked, or that the batteries on which the bilge pumps would have run were connected, or charged. Assuming the batteries and pumps worked, once the batteries for the bilge pumps ran out, the vessel would have continued taking on water at an even faster rate. The plaintiff's expert, a marine surveyor, also testified that the vessel's two bilge pumps were insufficient to pump the water at a rate that would exceed the inflow from the fully open (2-inch in diameter) seawater intake valve.
The vessel had only been operated for a period of less than one hour in the time period between April 10 and July 2, and had been blocked on dry land most of that time. Disconnecting the batteries would be a common practice in that event, and even if connected, the batteries could be expected to retain only a low charge.
A preponderance of the evidence presented at trial demonstrates that the water flowed into the vessel at a rate that was substantially slower than the plaintiff theorizes. The plaintiff's expert testified at trial that, based on his calculations, water would have begun to flow into the vessel immediately upon the launch at a rate of approximately 94 gallons per minute and that the bilge pump(s) would have only pumped out 29 gallons per minute, leaving a net inflow of 65 gallons per minute. The plaintiff's expert also calculated, based on the size of the engine compartment and bilges, that the vessel would have held approximately 1 33 gallons per inch of water. These two calculations produce a result that is entirely inconsistent with the evidence. Denham boarded the vessel approximately twenty minutes after the launch. According to the plaintiff's expert, even assuming the bilges were operating at full battery strength, there should have been approximately ten inches of water inside the vessel at that point. If the bilge pumps did not run at all, in twenty minutes there would have been more than fourteen inches of water. Yet Denham saw no water. Neither Denham, Sims, nor Hairelson saw or heard the bilge pumps running, even though, according to the plaintiff's expert, they should have begun running immediately after the launch and run continuously thereafter. The port bilge discharge was right in front of where Denham and Sims stood for fifteen minutes after the launch and later walked by, yet they did not hear it, despite the fact that the concrete seawall would have produced an echo chamber which would have amplified the sound. Water rushing into the engine compartment through a hose at the rate proposed by the plaintiff would have produced a noticeably audible sound, yet neither Denham, Sims, nor Hairelson heard anything. I conclude that, if the intake valve was open at all at the time of the launch, it was only slightly open and the inflow was at such a slow rate as to not be noticeable, absent actual visual examination of the intake hose. A noticeable amount of water could not have flowed into the vessel by the time Denham was aboard the vessel, or left it for the evening.
I find the plaintiff's expert's flow rate calculation is also suspect because it assumes that the outlet of the intake hose was at the same level as the valve, which is unlikely. If the hose were any higher, the head would be reduced, also reducing the flow rate. The evidence in the record makes it impossible to know the height of the end of the intake hose at the time. The net flow rate also assumes the bilge pumps were running with full battery strength and that the electrical panel, which was located below the salon cabin, would not have been affected.
The plaintiff has theorized that the bilge discharge may have been below water, making the discharge inaudible. The vessel's pronounced water line clearly demonstrates that the bilge discharge would have been above the water line, unless a significant amount of water in the bow had caused the vessel to list forward. No such listing was noted by any marina employee, and it is highly unlikely that the vessel would have taken on that much water in the initial minutes if the bilge pumps were running.
Marina Management employees contacted Opachick when they discovered the Reel Therapy filled with water. Opachick came to the marina immediately and contacted McGreevy to let him know that the vessel had suffered damage. Opachick and marina employees immediately began pumping seawater out of the vessel until the pumped water became so contaminated with diesel fuel and oil that pumping it into the marina's waters would have constituted an environmental hazard. Opachick asked Marina Management employees if the Reel Therapy could be safely lifted from the slip with the remaining water still inside, and he was informed that it could. Marina Management lifted the Reel Therapy out of the water, hauled it, and blocked it again. Opachick filled approximately twenty-one 55 gallon drums with the oil and fuel contaminated seawater he pumped from the vessel. The remaining water and fuel was pumped and disposed of by an oil recovery company, at a cost of $1,018.50 to the plaintiff. Opachick testified that he then boarded the vessel, discovered the intake valve open, and closed the valve. Opachick left the vessel and did not return for two days, at which time he "pickled" various engine parts by placing them in diesel fuel to try to avert some of the damage caused by seawater exposure. On July 11, 2002, eight days after the sinking, Richard Schiehl, the marine surveyor hired by Reel Therapy Charters' insurer and the plaintiff's expert at trial, first inspected the vessel and questioned Opachick. Marina Management did not participate in Schiehl's investigation. Schiehl's report to the insurance company blamed the marina for failing to inspect the vessel after launch.
IICNA paid Reel Therapy Charters $73,660.43 for repairs to the vessel, but Reel Therapy Charters also spent additional money for unrelated repairs. After Reel Therapy Charters had submitted estimates of $73,660.43 for the repairs, IICNA informed Reel Therapy Charters that the claim was nearing the point where the vessel would be considered a constructive total loss. Reel Therapy Charters agreed with IICNA to accept $73,660.43, which was less than the insured value of the vessel, in order to avoid having the vessel declared a constructive total loss by IICNA, which would have meant that IICNA would have acquired title to the vessel under the terms of Reel Therapy Charters' policy. Instead, Reel Therapy Charters chose to repair the vessel, and to use the insurance proceeds and other available capital to make significant upgrades to the vessel, including replacing both of the vessel's engines. Reel Therapy Charters concedes that Marina Management is not responsible for these upgrades. Use of the vessel was lost for six additional months, only three of which are attributable to Marina Management according to Reel Therapy Charters, during which time Reel Therapy Charters lost charter income and seeks recovery for this loss of use. It is unclear whether Reel Therapy Charters sought to use another vessel during the interim or whether one was reasonably available.
II. CONCLUSIONS OF LAW AND DISCUSSION
This court has admiralty jurisdiction over this action, which concerns negligence in the launching of a vessel into navigable waters. Diesel "Repower" Inc. v. Islander Investments. Inc., 271 F.3d 1318, 1322-23 (11th Cir. 2001); Hatteras of Ft. Lauderdale, Inc. v. Gemini Lady, 853 F.2d 848, 849-50 (11th Cir. 1988). An oral bailment for mutual benefit arose between the parties when Opachick directed Marina Management to launch the vessel. More generally, the law of bailment governed the parties' relationship through which Marina Management agreed to haul, block, and launch the vessel.
See Complaint of Lady Jane, 818 F. Supp. 1470, 1476 (M.D. Fla. 1992) (analyzing as a contract for bailment).
A bailment relationship is a contractual relationship which may arise from an express or implied agreement. A bailment is the delivery of goods by their owner (the bailor) to another (the bailee) for a specific purpose, and acceptance of those goods by the other, with the express or implied promise that the goods will be returned after the purpose of delivery has been fulfilled. When a vessel is placed at a wharf or marina for storage and repairs, a bailment results for the mutual benefit of the vessel owner and the operator of the marina. Buntin v. Fletchas, 257 F.2d 512, 513 (5th Cir. 1958); Steaemann v. Miami Beach Boat Slips. Inc., 213 F.2d 561, 564 (5th Cir. 1954): Goudy Stevens, Inc. v. Cable Marine, Inc., 924 F.2d 16, 18 (1st Cir. 1991). A bailment may arise from an oral contract. T.N.T. Marine Serv., Inc. v. Weaver Shipyards Dry Docks. Inc., 702 F.2d 585, 588 (5th Cir. 1 983). The bailee's duties are governed by the terms of the agreement. In such a bailment for mutual benefit and in absence of terms of the agreement which limit the bailee's liability or impose a higher standard of care, a bailee is responsible for exercising due care with respect to the vessel entrusted to him. Rodi Yachts, Inc. v. National Marine, Inc., 984 F.2d 880, 884 (7th Cir. 1993); 19 Williston on Contracts § 53:13 (4th ed. 2003). "A failure by the bailee to exercise that degree of care which is imposed upon him or her by reason of the nature of the bailment relationship is negligence such as will render the bailee liable to the bailor for any resulting injury or loss of the bailed property." 8A Am Jur.2d Bailments § 119(1997). An action based on a bailment for mutual benefit can be raised either in contract or in tort: a contract claim based upon breach of the bailment contract which incorporates a bailee's implied duty of non-negligence (or of workmanlike performance) with respect to the property while in its custody, or in simple negligence.
The bailee is not liable if the property bailed is damaged by an accident, or by some other means wholly without his or her fault; in the absence of some special stipulation, any damage to or loss of the property falls on the bailor. However, the bailee is liable if the property bailed is damaged by accident, or by some other means, due to the bailee's fault or failure to exercise the proper degree of care, and responsibility for any damage to or the loss of the property falls on the bailee and not the bailor.
ln Bonner v. City of Prichard. Ala., 661 F.2d 1206 (11th Cir. 1981), the Eleventh Circuit adopted the precedent of the former Fifth Circuit prior to September 30, 1981, as its binding precedent.
Reel Therapy Charters has asserted both claims. Because the relevant analysis for the purposes of this order is identical under a theory either in contract or in tort, I need not resolve the defendant's argument that the economic loss rule precludes the plaintiff's tort claim.
19 Williston on Contracts § 53:5 (4th Ed. 2003) (footnotes omitted).
As the bailor, Reel Therapy Charters bore the burden of proving Marina Management's failure to exercise due care. Normally, where the bailor shows delivery of the vessel to the bailee in good condition and the bailee's failure to return the vessel in as good condition, the bailor makes out a prima facie case of negligence against the bailee. Molasses Corp. v. New York Barge Corp., 314 U.S. 104, 110, 62 S.Ct. 156, 86 L.Ed. 89 (1941); Buntin, supra, 257 F.2d at 514. This prima facie showing does not shift the ultimate burden of proof, but imposes a burden of production on the bailee to come forward with evidence to show facts and circumstances sufficient for the finder of fact to conclude that the bailee exercised ordinary care in all that it did with respect to the vessel. Id.; Sisung v. Tiger Pass Shipyard, 303 F.2d 318, 321-22 (5th Cir. 1962); Goudy Stevens, Inc., supra, 924 F.2d at 18.
Arguably, Marina Management did return the vessel in good condition when it launched the vessel, making it available for the plaintiff to board or take custody.
The rationale for the creation of an inference of negligence is that the bailee is in a better position than the bailor to ascertain the cause of the loss [and prevent it] because it had custody or control of the vessel when the loss occurred. Goudy Stevens, Inc., supra, 924 F.2d at 19. However, no inference of negligence arises if the bailee's custody or possession of the vessel was not exclusive of that of the bailor; that is, the possession or control exercised by the bailor would permit the trier of fact to rationally conclude that the bailor (or both parties, equally) might be in the best position to explain what actually happened. Id.; United States v. Mowbray's Floating Equip. Exchange, 601 F.2d 645, 647 (2d Cir. 1979); T.N.T. Marine Serv., Inc., supra, 702 F.2d at 588; Steaemann, supra, 213 F.2d at 565 ("Where the delivery of the thing is not complete, as when the owner remains with the thing or has an independent agent or employee responsible for it or for certain aspects of its care, there is a corresponding limitation on the bailment and the duty of the bailee."((citations omitted).
In Goudy Stevens, Inc., supra, the First Circuit affirmed the district court's conclusion that, because the vessel owner had hired repairmen who had equal access to the vessel as that of the marina and worked onboard substantially more than marina personnel, no inference of negligence on the part of the marina arose when the vessel sank several days after it was launched. Goudy Stevens, Inc., supra, 924 F.2d at 19. Because no presumption arose, the burden of proving the marina's negligence remained with the vessel owner. Id. Likewise inMidland Enters., Inc. v. Notre Dame Fleeting Towing Serv., Inc., 538 F.2d 1356, 1358 (8th Cir. 1976), the Eight Circuit affirmed the district court's conclusion that, because it was unable to determine the cause of the vessel's sinking, and the defendant had no more knowledge of the cause than the plaintiff because the potential causes could not have been discovered through ordinary inspection upon delivery, no inference of negligence arose.
In this case, I conclude that no inference or presumption of negligence arises from the evidence presented by the plaintiff. The rationale for shifting the burden of production to the defendant is absent: both parties have equal access to evidence regarding probable theories as to the cause of the accident. The plaintiff has superior access to proof regarding whether the valve was left open by Opachick and whether one of its employees might have inadvertently opened the valve during repairs. The plaintiff and its agents, including Opachick, had exclusive access to the vessel during the period it was blocked and being repaired. Likewise, the defendant has superior access to information regarding the post-launch inspection process it underwent for a vessel upon which it had performed no repairs, simply because no agent of the plaintiff was present at that time. The defendant did not have exclusive access to the vessel at any time. Indeed, it was contemplated that Opachick would have access to the vessel even before the plaintiff paid for the defendant's services and that he would return and board the vessel after the launch without the defendant's permission. Assuming the valve was open upon launch, both the open valve and any alleged inadequate inspection may have been concurrent causes of the vessel's flooding. Thus, the burden remains with the plaintiff to prove the defendant's negligence.
I reject the plaintiff's contention that any negligence by the defendant was a superseding cause of the sinking with respect to any negligence in leaving the valve open. See Restatement (Second) Torts § 452, cmt. b. The harm caused by leaving the valve open is the exact same harm that would be caused by failing to inspect for open valves, and the sinking of the vessel is the likely outcome of both. See Restatement (Second) Torts § 442(a)-(b), (d).
Even were the burden of production to shift to the defendant, the widely varying circumstantial evidence in the record demonstrates more than enough evidentiary foundation to rebut the presumption of negligence. The defendant's presentation of evidence (1) of Reel Therapy Charters' financial distress, along with the evidence that no water was observed in the vessel shortly after launch, or (2) that the valve was open when presented for launch, more than rebut the inference of negligence by the defendant.
A marina's duty of care, when launching a vessel at the direction of a vessel owner or the vessel owner's repairman and when the marina has performed no repair work on the vessel, does not extend to performing a thorough check of each through hull fitting of the vessel, even though the vessel owner or repairman is not present during the launch. Where the owner is not present, the marina's duty is only to launch the vessel safely into the water, securing it as necessary, and to perform a cursory inspection, that is a quick look and listen, to discern whether the vessel is safely riding in the water in a normal way. In the period shortly after the launch, marina employees must visually check the outside of the vessel and listen while near the vessel to determine if there are any sounds indicative of a problem. In the absence of an express agreement either permitting or prohibiting the marina from boarding the vessel, when the owner or its agent is not present during the launch and marina employees know the vessel has undergone repairs, the marina's duty of reasonable care only requires that the marina board the vessel, under implied authority from the owner, for as short a time as possible to secure the vessel. A visual check of what is in plain view is reasonable. Only when this casual check reveals an open and obvious source of concern regarding the vessel's seaworthiness does the marina's duty require it to act to remedy the negligence of another person.
Both Opachick and Hairelson had previously worked for the same marina, which also had a policy that its employees would not board vessels that it launched when the marina had performed no repair work. The plaintiff has failed to prove any kind of industry standard requiring a marina to thoroughly inspect each of a vessel's through-hull fittings when the marina is merely tasked with launching a vessel it has not repaired. This burden should properly rest with the repairman, who has superior knowledge of the vessel's engine and interior fittings, as well as what work has been performed and who has been expressly granted unfettered access to the vessel by the owner.
In this case, Reel Therapy Charters did not prove by a preponderance of the evidence that Marina Management breached its duty of care. It is entirely possible that the intake valve was open prior to the launch; it is also possible it was closed. The evidence is inconclusive. If it was open, it was due to the negligence of Reel Therapy Charters and its agents. As I stated above, assuming the valve was open, the preponderance of the evidence in the record indicates that water was entering the boat at a slow rate: so slow as not to be noticeable by Denham, Sims, or Hairelson, all of whom were around the vessel shortly after the launch and noticed nothing unusual. Denham and Sims were around the vessel for at least thirty minutes, and possibly as long as an hour, after the launch. Neither of them heard anything that would have triggered a duty of further inquiry, such as water rushing into the engine compartment or the bilge pumps running. There is no evidence in the record that the vessel's batteries were charged so that they would operate the bilge pumps at all, or for any significant period of time, or that the bilge pumps even worked. The vessel had only been run for a period of an hour or so in the last four months. Despite Marina Management's policy against boarding vessels upon which the company has performed no repair work, Denham boarded the vessel anyway, and visually inspected the engine compartment, the bilges, and the hatches to see if the vessel was watertight. It appeared to be. He neither heard nor saw any source of concern. Opachick was notified that the vessel had been launched, and Denham and all of the other Marina Management employees expected Opachick to return to the vessel that afternoon. Opachick did not return to check on the vessel, despite the fact that at least three hours of daylight remained after the launch. Because Marina Management safely launched and secured the vessel, as well as performing a quick check of the vessel, Marina Management acted with reasonable care under the circumstances and was neither negligent nor in breach of its implied duty of workmanlike performance.
If the bilge pumps were not working, or were running on extremely low batteries, even a slow leak such as that supported by the evidence, would have eventually filled the vessel before morning.
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that judgment be entered in favor of the defendant and against the plaintiff, together with taxable costs.
DONE and ORDERED.