Crown Bay Marina, L.P. v. Subbase Drydock, Inc.
| Decision Date | 01 April 2021 |
| 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 |
Hurricane Irma, a Category 5 storm, passed over St. Thomas in the U.S. Virgin Islands on September 6, 2017. Two vessels in the custody of defendant Subbase Drydock, Inc. ("Subbase") 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 Subbase 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 219, 220]. 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 171] at 36.
2. CBM owns the Marina, which is located on St. Thomas in the U.S. Virgin Islands. Oct. 27, 2020 Trial Tr. [ECF 217-2] 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 217-2] at 168 (Ohno).
4. Marina Management Services ("MMS") managed CBM from the time CBM took ownership of the facility in 1998 until shortly after Hurricanes Irma and Maria in September 2017. JFPTO [ECF 171] at 38; Oct. 27, 2020 Trial Tr. [ECF 217-2] 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]3 at 7, 142 (Kissman).
6. At the time of Hurricane Irma, Gerry Ocello was the Marina dockmaster. Dec. 18, 2019 Dep. Tr. [ECF 208-1]4 at 101-02 (Kissman); Jan. 8, 2020 Dep. Tr. [ECF 209-1] at 8-9 (Ocello).
7. Subbase is a U.S. Virgin Islands corporation with its principal place of business in the Virgin Islands. JFPTO [ECF 171] at 36.
8. Subbase is a marine repair and drydock facility. July 30, 2019 Dep. Tr. [ECF 137-1] at 7 (Kral, Sr.). It is located approximately 1/8 of a mile from the Marina. Oct. 28, 2020 Trial Tr. [ECF 217-3] at 143 (Kral, Jr.).
9. Gene Kral, Jr. is the President of Subbase, and is a 50 percent owner in the business; he does not have a captain's license. Oct. 26, 2020 Trial Tr. [ECF 217-1] at 16-17 (Kral, Jr.).
10. Gene Kral, Sr. is the Secretary of Subbase.
11. Prior to Hurricane Irma, Subbase was the custodian of two ferries, the M/V Culebra II ("the Culebra II") and the M/V Caribeña ("the Caribeña").5 JFPTO [ECF 171] at 36.
12. The Puerto Rico and Municipal Islands Maritime Transport Authority ("PRMTA") owns the Culebra II and the Caribeña. Trial Ex. 12; Oct. 26, 2020 Trial Tr. [ECF 217-1] at 100-01 (Kral, Jr.).
13. The Culebra II is 145 feet long with a beam of 27 feet and a draft of 9 feet. JFPTO [ECF 171] at 38.
14. There are five tie-up points on each side of the Culebra II. Oct. 28, 2020 Trial Tr. [ECF 217-3] at 186 (Conway).
15. The Caribeña is 100 feet long with a beam of 23 feet and a draft of 6 feet. JFPTO [ECF 171] at 38.
16. The Caribeña has four mooring cleats on each side of the vessel. Oct. 28, 2020 Trial Tr. [ECF 217-3] at 193 (Conway).
17. Both the Culebra II and the Caribeña have aluminum hulls, and each vessel has one anchor. Oct. 28, 2020 Trial Tr. [ECF 217-3] at 93, 130 (Kral, Jr.).
18. 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.
19. The T1, T2, A, and B docks are made primarily of 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, and is capped by another pier, known as the "T of C."
20. Wooden crossbeams or "whalers" are affixed to the side of a bulkhead to provide a buffer between the bulkhead and the vessels that tie up alongside the bulkhead.
21. The A, B, and C docks have slips or spaces for vessels to tie up.
22. 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.
23. The A-Dock is comprised of slips A1-A5. The A-Dock contains one finger pier, located at A2/A3.
24. The B-Dock is comprised of slips B1-B5. The B-Dock contains one finger pier, located at B2/B3.
25. The C-Dock consists of a dock for dinghies and 28 slips, numbered C4-C32. Odd-numbered slips are on the west side of the dock and even-numbered slips are on the east side.
26. 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.
27. Just off the end of most finger piers is a single fender piling or 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.
28. 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.
29. In 2014, Clyde Tapp,7 a Marina employee, took underwater and water level photographs of various structures at the Marina. Trial Exs. 402, 439; Oct. 30, 2020 Trial Tr. [ECF 217-5] at 15-16 (Tapp). These photographs depict areas of the Marina, including the C-Dock and its pilings and piling caps, containing cracked and deteriorating concrete and rusted rebar.
30. In October 2015, CBM contacted Mark Knopf,8 a marine contractor, about replacing the fender pilings around the C-Dock. Oct. 26, 2020 Trial Tr. [ECF 217-1] at 224 (Knopf).
31. On August 17, 2016, Knopf emailed Kissman of 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 217-1] at 225-26 (Knopf).
32. 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 217-1] at 228-29 (Knopf).
33. On August 9, 2017, Kissman emailed Knopf to let him know that all preparations Knopf was making for repairs to the Marina had to be put on hold per Ohno. Trial Ex. 411; Oct. 26, 2020 Trial Tr. [ECF 217-1] at 231-32 (Knopf).
34. On September 5, 2017, the day before Hurricane Irma hit St. Thomas, Herman van der Heide took aerial and ground level photographs of the Marina.9
35. On September 5, 2017, there were two cleats and a utility box at the intersection of the A and T docks. Trial Ex. 19.
36. On September 5, 2017, there was no fender piling between slips B1 and B2. Trial Ex. 13.
37. Prior to Hurricane Irma, there were three individual dolphin piles at the outer end of the B-Dock slips. Trial Ex. 13. One pile was located at the end of the B2/B3 finger pier and the other two piles were located between the B2/B3 finger pier and the east wall of the B-Dock, marking the entrance to the B4 slip.
38. On September 5, 2017, the skirting on the bulkhead side of the C7 slip was intact. Trial Ex. 60.
39. On September 5, 2017, there was a single fender pile between slips C7 and C9, and a single piling off of the C9/C11 finger pier. Trial Ex. 13.
40. On September 5, 2017, there were no fender pilings off the C13/C15 finger pier and no fender pilings on either side of the C13/C15 finger pier. Trial Ex. 13.
41. 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 171] at 38-39.
42. On August 31, 2017, at 11:00 a.m. AST, the NHC announced that Tropical Storm Irma had become Hurricane Irma. JFPTO [ECF 171] at 38-39.
43. Between August 31, 2017 and September 4, 2017, Hurricane Irma fluctuated between being a Category 2 and a Category 3 storm. JFPTO [ECF 171] at 38-40.
44. On September 4, 2017, at 11:00 a.m. AST, the NHC issued a hurricane watch for the U.S. Virgin Islands. JFPTO [ECF 171] at 41.
45. On September 4, 2017, at 11:00 p.m. AST, the NHC issued hurricane warnings for Puerto Rico and the Virgin Islands. JFPTO [ECF 171] at 41.
46. On September 5, 2017 at 7:45 a.m. AST, the NHC announced that Hurricane Irma was a Category 5 storm. JFPTO [ECF 171] at 41.
47. On September 3, 2017, Subbase hired a tow company to move the vessels from Subbase to the Marina. JFPTO [ECF 171] at 38.
48. Subbase also used a Subbase work boat, the M/V Vindicator ("the Vindicator"),10 to help bring the vessels to the Marina. Trial Ex. 13; Oct. 26, 2020 Trial Tr. [ECF 217-1] at 55-56 (Kral, Jr.).
49. Subbase employees Kral, Jr., Kral, Sr., Michael Conway,11 Gabriel Lowry, and Robert Lowe tied up the vessels at the Marina. Oct. 26, 2020 Trial Tr. [ECF 217-1] at 46 (Kral, Jr.).
50. After using the Vindicator to guide the vessels into the Marina, Subbase tied it to the aft port quarter of the Culebra II. Trial Ex. 13; Oct. 26, 2020 Trial Tr. [ECF 217-1] at 55-56 (Kral, Jr.).
51. Subbase tied up the Culebra II parallel to the T2-Dock with the vessel's starboard side closest to the dock and its bow pointing toward the T1-Dock. Trial Ex. 13.
52. Subbase ran at least two lines from the Culebra II's bow to the T1-Dock. Trial Ex. 59.
53. Subbase ran a line from the Culebra II's stern to the second cleat on the T2-Dock starting...
To continue reading
Request your trial