Dann Marine Towing, LC v. Gen. Ship Repair Corp.
| Decision Date | 07 September 2017 |
| Docket Number | CIVIL ACTION NO. MJG-12-1610 |
| Parties | DANN MARINE TOWING, LC Plaintiff v. GENERAL SHIP REPAIR CORP. Defendant |
| Court | U.S. District Court — District of Maryland |
The 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.1
The 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.
In 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.
Since 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").
Since 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.
In 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 Lynch2 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]3 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.
Provision 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.4 Id. This required preparation of the Boat prior to commencing hot work,5 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 hot work.
On or 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 at GSR.
In 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.
Collins 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.6 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.
A2Z spent about eleven hours7 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.8 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 chemist's inspection.
David 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.9 Collins, signed off on the A2Z cleaning service, and met with Capen.
Collins described to Capen the scope of work that was planned for the Boat.10 Capen inspected the port fuel oil tank, the starboard aft fuel oil tank, and the engine room bilge, and took a number of sensor readings11 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:
Pl.'s Ex. 2.
The hot 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. As the 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,13 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-gunning14 activities preparing for Monday's cutting.
Hot 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"15 to test O2 (oxygen) and LEL (Lower Explosive Limit)16 levels to ensure that the area was still safe for hot work.
Wise 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 hoses17 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 ledge18 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.
Towards 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.
Ash, 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....
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