Crown Bay Marina, L.P. v. Reef Transp., LLC
| Decision Date | 01 April 2021 |
| Docket Number | Civil No. 2018-73 |
| Parties | CROWN BAY MARINA, L.P., Plaintiff, v. REEF TRANSPORTATION, LLC, et al., Defendants. |
| Court | U.S. District Court — Virgin Islands |
Hurricane Irma, a Category 5 storm, passed over St. Thomas in the U.S. Virgin Islands on September 6, 2017. Two vessels belonging to defendant Reef Transportation, LLC ("Reef") were secured in plaintiff Crown Bay Marina, L.P.'s ("CBM") boat docking facility during the storm. In this admiralty action, CBM seeks to recover from Reef for damage it claims the vessels caused to the Crown Bay Marina ("the Marina").1 A bench trial was held on October 22, 26-30, 2020. Following the trial, the parties submitted proposed findings of fact and conclusions of law to the Court. [ECFs 312, 313]. The Court, having fully considered the testimonial, video, photographic and documentary evidence presented and admitted at trial, the arguments of counsel and the applicable law, makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.
1. CBM is a Delaware Limited Partnership with its principal place of business in Kirkland, Washington. Joint Final Pretrial Order, Sec. IV., Admissions and Stipulations ("JFPTO") [ECF 247] at 41.
2. CBM owns the Marina, which is located on St. Thomas in the U.S. Virgin Islands. Oct. 27, 2020 Trial Tr. [ECF 310-2] at 170 (Ohno).2
3. Kosei Ohno is the President of St. Thomas Marina Corporation, which is the general partner of CBM. Oct. 27, 2020 Trial Tr. [ECF 310-2] at 168 (Ohno).
4. Marina Management Services ("MMS") managed the Marina from the time CBM took ownership of the facility in 1998 until shortly after Hurricanes Irma and Maria struck in September 2017. JFPTO [ECF 247] at 38; Oct. 27, 2020 Trial Tr. [ECF 310-2] at 170 (Ohno).
5. Since 1988, Dennis Kissman has been the President of MMS; he was also a limited partner in CBM. Dec. 18, 2019 Dep. Tr. [ECF 208-1] at 7, 142 (Kissman).
6. At the time of Hurricane Irma, Gerry Ocello was the Marina dockmaster. Jan. 8, 2020 Dep. Tr. [ECF 207-1] at 8-9 (Ocello); Dec. 18, 2019 Dep. Tr. [ECF 208-1] at 101-02 (Kissman).
7. Reef is a limited liability corporation with its principal place of business on St. Thomas, United States Virgin Islands. JFPTO [ECF 247] at 42.
8. Reef is owned by Scott McKellar and Jim Trilling.3 Oct. 29, 2020 Trial Tr. [ECF 310-4] at 20 (Mathews).
9. During the days leading up to Hurricane Irma, Scott McKellar was in Washington state; Trilling was on St. Thomas. Oct. 29, 2020 Trial Tr. [ECF 310-4] at 22 (Mathews).
10. Reef owns two vessels—the M/V Morning Star ("Morning Star") and the M/V Evening Star ("Evening Star"). JFPTO [ECF 247] at 42; Oct. 29, 2020 Trial Tr. [ECF 310-4] at 8-10 (Mathews).
11. The Morning Star is a green-hulled vessel and the Evening Star is a red-hulled vessel; otherwise, the vessels are the same. The vessels are 27 feet long, each has a vinyl awning that is lashed to the top and sides of an aluminum frame, and each is equipped with two anchors. Oct. 29, 2020 Trial Tr. [ECF 310-4] at 9, 56-57, 93 (Mathews).
12. Prior to Hurricane Irma, Reef's business was shuttling people to and from Marriott's Frenchman's Cove and Frenchman's Reef to the waterfront. Oct. 30, 2020 Trial Tr. [ECF 310-5] at 40 (Trilling).
13. The Marina consists of the following docks: T1-Dock, T2-Dock, A-Dock, B-Dock, C-Dock, D-Dock, E-Dock, and a fuel dock.
14. The T1, T2, A, and B docks are primarily concrete walls or "bulkheads," while the C-Dock, also made of concrete, consists of a pier extending out perpendicularly from the landside of the Marina that is capped by another pier, known as the "T of C."
15. Wooden crossbeams or "whalers" are affixed to the side of the bulkheads to provide a buffer between the bulkhead and the vessels that tie up alongside the bulkhead.
16. The A, B, and C docks have slips or spaces for vessels to tie up.
17. Narrow docks called "finger piers" separate certain slips. These finger piers are identified by the slips on either side; thus, the finger pier between slip C9 and C11 is identified as the C9/C11 finger pier.
18. The C-Dock consists of a dock for dinghies and 28 slips, numbered C4-C32. Odd-numbered slips are on the southwest side of the dock and even-numbered slips are on the northeast side.
19. The C-Dock and its finger piers are constructed on pairs of concrete pilings anchored to the sea floor. Atop each pair of pilings is a concrete "piling cap." Concrete decking bridges the gaps between the piling caps.
20. Just off the end of most finger piers is a single fender piling, or a group of fender pilings, known as a "dolphin." They stand vertically in the water and are not attached to the finger piers. These can be used to assist with mooring in the slips.
21. In certain locations, halfway between the fender pilings at the end of each set of finger piers is another piling or set of pilings that defines the two slips between the finger piers.
22. In 2014, Clyde Tapp,5 a Marina employee, took underwater and water level photographs of various structures at the Marina. Trial Exs. 402, 439; Oct. 30 Trial Tr. [ECF 310-5] at 15-16 (Tapp). These photographs depict areas of the marina, including the C-Dock and its pilings and piling caps, containing cracked and deteriorated concrete and rusted rebar.
23. From the time Tapp took the photographs up to the time of Hurricane Irma, CBM did no structural piling work and little to address the conditions shown in the photographs, other than filling small cracks or other minor repairs. Oct. 30 Trial Tr. [ECF 310-5] at 26-27 (Tapp); Oct. 26 Trial Tr. [ECF 310-1] at 208-09, 214 (Knopf).
24. In October 2015, CBM contacted Mark Knopf,6 a marine contractor, about replacing the fender pilings around the C-Dock. Oct. 26, 2020 Trial Tr. [ECF 310-1] at 224 (Knopf).
25. On August 17, 2016, Knopf sent CBM an estimate to replace the wooden fender piles on both sides of the C-Dock. Trial Ex. 405; Oct. 26, 2020 Trial Tr. [ECF 310-1] at 225-26 (Knopf).
26. On August 25, 2016, Kissman emailed Knopf to let him know that CBM was going to hold off making any repairs to the Marina until late Spring or early Summer of 2017. Trial Ex. 407; Oct. 26, 2020 Trial Tr. [ECF 310-1] at 228-29 (Knopf).
27. On May 20, 2017, Knopf emailed Kissman alternative options and corresponding estimates for replacing the three-pile dolphins at the C-Dock and for other potential repairs. Trial Ex. 409; Oct. 26, 2020 Trial Tr. [ECF 310-1] at 229-30 (Knopf).
28. On August 9, 2017, Kissman emailed Knopf to let him know that all preparations Knopf was making for repairs to the Marina were to be put on hold per Ohno. Trial Ex. 411; Oct. 26, 2020 Trial Tr. [ECF 310-1] at 231-32 (Knopf).
29. On September 5, 2017, the day before Hurricane Irma hit St. Thomas, Herman van der Heide took ground level and aerial photographs of the Marina.
30. Pursuant to the vessels' Certification of Inspection, as protected waters vessels, the Reef vessels were not permitted to be more than 1,000 yards from the shore. Oct. 29, 2020 Trial Tr. [ECF 310-4] at 14-15 (Mathews).
31. On August 30, 2017, at 11:00 a.m. AST, the National Hurricane Center ("NHC") announced that a low-pressure area in the Atlantic Ocean had become Tropical Storm Irma. JFPTO [ECF 247] at 39.
32. On August 31, 2017, at 11:00 a.m. AST, the NHC announced that Tropical Storm Irma had become Hurricane Irma. Between August 31, 2017 and September 4, 2017, Hurricane Irma fluctuated between being a Category 2 and a Category 3 storm. JFPTO [ECF 247] at 38-40.
33. Reef began planning for Hurricane Irma in the middle part of the week prior to the storm. Oct. 29, 2020 Trial Tr. [ECF 310-4] at 17 (Mathews).
34. On September 4, 2017, at 11:00 a.m. AST, the NHC issued a hurricane watch for the U.S. Virgin Islands.7 JFPTO [ECF 247] at 41.
35. Twenty-four hours before Hurricane Irma struck St. Thomas, Kissman informed Ohno that Marina policy had changed and that vessels would be allowed to shelter at the Marina during the upcoming storm. Oct. 28, 2020 Trial Tr. [ECF 310-3] at 28 (Ohno).
36. On September 4, 2017, Reef first planned to take the vessels to the Mangrove Lagoon. Trial Ex. 105; Oct. 29, 2020 Trial Tr. [ECF 310-4] at 83-84 (Mathews). Later, Trilling, in consultation with Captain Chris Mathews,8 decided to move the vessels to the Marina. Oct. 30, 2020 Trial Tr. [ECF 310-5] at 43 (Trilling). Reef contacted the Marina to reserve space for both vessels beginning on September 5, 2017. JFPTO [ECF 247] at 42.
37. On September 4, 2017, at 11:00 p.m. AST, the NHC issued hurricane warnings for Puerto Rico and the Virgin Islands. JFPTO [ECF 247] at 41.
38. On September 5, 2017, at 7:45 a.m. AST, the NHC announced that Hurricane Irma was a Category 5 storm. JFPTO [ECF 247] at 41.
39. On September 5, 2017, Mathews picked up Reef Captain Dave MacVean and Reef Captain Robert Ritter from Marriott Frenchman's Cove in Mathews' personal dinghy and took them to the vessels. Oct. 29, 2020 Trial Tr. [ECF 310-4] at 23, 25, 28 (Mathews).
40. MacVean and Ritter then drove the vessels to the Marina; Mathews attached his dinghy to one of the vessels. Oct. 29, 2020 Trial Tr. [ECF 310-4] at 23 (Mathews).
41. When they arrived at the Marina, Reef contacted the Marina office. Oct. 29, 2020 Trial Tr. [ECF 310-4] at 23 (Mathews).
42. After entering the Marina, the Reef captains took the vessels to the northeast side of the C-Dock, as instructed by a Marina employee. Oct. 29, 2020 Trial Tr. [ECF 310-4] at 25-26 (Mathews).
43. The Reef captains placed the vessels in slips C10 (Morning Star) and C12 (Evening Star), with their bows facing the dock; they tied both vessels to the C10/C12 finger pier. Trial Ex. 17; Oct. 29, 2020 Trial Tr. [ECF 310-4] at 31 (Mathews); Trial Ex. 111.
44. The Reef captains tied the vessels off with three-strand...
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