Crown Bay Marina, L.P. v. Subbase Drydock, Inc.
| Decision Date | 16 October 2020 |
| Docket Number | Civil No. 2018-68 |
| Parties | CROWN BAY MARINA, L.P., Plaintiff, v. SUBBASE DRYDOCK, INC., et al., Defendants. |
| Court | U.S. District Court — Virgin Islands |
Before the Court is defendant "Subbase Drydock, Inc.'s Motion for Summary Judgment" ("Subbase") [ECF 101]. Plaintiff Crown Bay Marina, L.P. ("CBM") filed an opposition [ECF 109] and Subbase replied [ECF 135]. Also before the Court is CBM's cross motion for summary judgment, which CBM included as part of its opposition to Subbase's motion. Subbase filed an opposition [ECF 163]1 and CBM replied [ECF 166].
Plaintiff CBM, a Delaware Limited Partnership, owns the Crown Bay Marina ("the Marina"), a boat docking facility located on St. Thomas in the U.S. Virgin Islands. Ver. Compl.[ECF 1] ¶¶ 4, 5. CBM contracted with Marine Management Services, Inc. to manage the Marina, which included the rental of the Marina's dock slips. Id. ¶ 13.
Defendant Subbase is a U.S. Virgin Islands Corporation with its principal place of business on St. Thomas. Ver. Compl. [ECF 1] ¶ 7. Subbase "is a marine repair and maintenance company that services vessels, including ferries, and offers general drydock services." Id. Subbase is owned by Eugene Kral, Sr., his wife Mary Kral, and their son Eugene Kral, Jr. Kral, Sr. Dep. [ECF 103-1] at 5.2
In September 2017, just before Hurricane Irma hit St. Thomas, Subbase was the agent and custodian of the two vessels at issue in this case: the M/V Culebra II ("the Culebra II") and the M/V Caribena ("the Caribena"). Ver. Compl. [ECF 1] ¶¶ 9, 16; Kral, Sr. Dep. [ECF 103-1] at 11; [ECF 110-4] at 3. Prior to Hurricane Irma, both vessels were at the Subbase drydock undergoing repairs. Id. at 7-8. The Culebra II, which was destroyed during Hurricanes Irma and Maria, was a 145-foot passenger ferry. [ECF 1-2] at 1. The Caribena is a 100-foot passenger ferry. [ECF 1-1] at 1. Both vessels were owned by the Puerto Rico and Municipal Islands Maritime Transport Authority ("PRMTA"). [ECF 110] ¶ 5; [ECFs 110-6, 110-7].
In the days leading up to the storms, the National Hurricane Center warned that Hurricane Irma was likely to hit St. Thomas. Ver. Compl. [ECF 1] ¶ 14; [ECF 103-11]. On August 30, 2017, Luis M. Abreu-Noble, Executive Director of the PRMTA, signed as "Responsible person" and provided Subbase with a "Statement of Responsibility and Waiver" for each vessel. Kral, Sr. Dep. [ECF 103-1] at 9-10; [ECFs 103-6, 103-7]. In pertinent part, the document provides:
[ECF 103-6] at 2. Following Subbase's receipt of the executed documents, Subbase contacted PRMTA to find out where it wanted the vessels taken if it became necessary due to the approaching storm. [ECF 110] ¶ 11.
On September 3, 2017, Subbase hired a tow company to move the Culebra II and the Caribena from Subbase to the Marina. [ECF 110] ¶ 16; Kral, Sr. Dep. [ECF 103-1] at 16; Kral, Jr. Dep. [ECF 103-9] at 3-5. The Marina's manager told Kral, Jr. that he could tie up the Caribena in any spot he liked. [ECF 110] ¶ 17. The Culebra II was tied up at the Marina in the only spot in which it would fit. Kral, Jr. Dep. [ECF 103-9] at 5. Initially, Subbase secured tires to each vessel; it later removed them at the request of Marina employee Jerry Ocello and replaced them with fenders supplied by PRMTA. [ECF 110] ¶ 20; [ECF 103-9] at 7-8.
On September 5, 2017, Kral, Jr. executed three documents for CBM per vessel. [ECF 110-4] at 3. The first document, the License Agreement for Dockage ("the License Agreement"), is a two-page document that details the conditions under which dock space at the Marina may be occupied. See, e.g., [ECF 103-13] at 1. In the paragraph that immediately precedes the "Agent/Owner's/Captain's Signature" block on the first page, where Kral, Jr. signed, the License Agreement provides:
Ownership and No Assignment: The person who has signed this Agreement as Owner hereby represents and warrants that he is in fact and in law the true owner of the Vessel or the duly authorized or empowered agent of the Owner, and that he has full power and right to enter into this Agreement for himself and for the Vessel, and that there are no restrictions of any kind upon him or the Vessel which limit or restrict his right and power to bind himself and the Vessel to each and every term and condition of this Agreement. In the event of any change of ownership of the Vessel, Owner shall give notice thereof in writing to Marina. Owner shall remain responsible to Marina for all sums due and owing hereunder until such new owner enters into an Agreement with Marina, or until Vessel is removed. This Agreement is not transferable or assignable in any way without the express written consent of Marina.
Id. The License Agreement further provides:
The second document, the Dayworker Agreement of Waiver of Liability and Assumption of Risk ("the Dayworker Agreement") is a one-page document that addresses liability for damages resulting from work performed by individuals not employed by the Marina on vessels berthed at the Marina. See, e.g., [ECF 103-14]. The agreement states that it is "[t]o be signed by Owner/Captain." Id. Kral, Jr. signed the agreement and wrote "Representative" on the line immediately above the word "Title." Id.
The third document, the Crown Bay Marina 2017 Hurricane Evacuation Protocol ("the Evacuation Protocol"), consists of one page and lists the protocols for evacuating vessels secured at the Marina during the 2017 hurricane season. See, e.g., [ECF 103-15]. Also, the Evacuation Protocol reproduces paragraphs 8 and 10 of the License Agreement. At the top of the Evacuation Protocol is a blank space for the "owner/agent of the vessel" to print his name. Id. At the bottom of the Evacuation Protocol is a signature block for the "Owner/Owners Agent Signature." Id. Kral, Jr. printed his name at the top of the document and signed his name at the bottom. Id.
On September 6, 2017, Subbase moved the Caribena to a new location within the Marina. Kral, Sr. Dep. [ECF 103-1] at 22-23. That day, Hurricane Irma passed over St. Thomas. Ver. Compl. [ECF 1] ¶ 20. During Hurricane Irma, the Caribena broke free from its mooring. Kral, Sr. Dep. [ECF 103-1] at 22. The vessel ended up next to a dock east of where it had been tied up. Id. at 24. The Culebra II also broke free from its mooring at the Marina and sank outside the Marina. Id. at 23; Ver. Compl. [ECF 1] ¶ 21.
On December 5, 2017, Subbase received a Notice of Final Inspection from CBM. [ECF 110-8]. Subbase forwarded the notice to its insurance carrier. Id.
On August 17, 2018, CBM sent Subbase a letter seeking payment for the damage caused by the Culebra II and the Caribena. [ECF 110-9].
In the instant suit, CBM claims Subbase breached the terms of the License Agreement and the Evacuation Protocol by failing to pay for damage caused by the vessels. Ver. Compl. [ECF 1] ¶ 31. CBM further claims that Subbase breached the "reasonable duty of care to manage, operate, and moor the vessels in its custody and care in a reasonably safe manner." Id. ¶ 24. CBM contends that Subbase and the vessels are jointly and severally liable for the damage caused and seeks to maintain a lien on the vessels to satisfy any judgment. Id. ¶¶ 23, 25. CBM demands over $1.4 million in damages. Id. ¶ 30.
Subbase seeks summary judgment as to both CBM's contract and tort claims. [ECF 102] at 1. Regarding CBM's contractual indemnity claim, Subbase argues that it is not the party obligated to indemnify CBM. Id. Regarding CBM's tort claim, Subbase contends that CBM's negligence claim is precluded by the gist of the action doctrine. Id.
In its cross motion for summary judgment, CBM argues that Subbase is liable to CBM for breach of contract by failing to have CBM named as an additional insured on its or PRMTA's policy and by failing to identify PRMTA as a principal. [ECF 109] at 6-7, 13-15. CBM further contends that as "owner's agent," Subbase is liable under the various contracts to the same extent as the vessels' owner. Id. at 3-6.
Summary judgment is appropriate where an examination of the pleadings, affidavits, and other proper discovery materials before the court demonstrates "there is no genuine dispute as to any material fact," thus entitling the moving party to judgment as a matter of law. Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is "material"...
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