New Bedford Marine Rescue, Inc. v. Cape Jeweler's Inc., Civil Action No. 01-CV-11450-MBB (D. Mass. 1/21/2003)
| Decision Date | 21 January 2003 |
| Docket Number | Civil Action No. 01-CV-11450-MBB. |
| Parties | NEW BEDFORD MARINE RESCUE, INC., Plaintiff, v. CAPE JEWELER'S INC., Defendant. |
| Court | U.S. District Court — District of Massachusetts |
John E. Sutherland, Angela H. Magary, Brickley, Sears & Sorett, Boston, MA, for Plaintiff and Counter-Defendant.
Michael J. Calabro, Brian P Flanagan, Flanagan & Hunter, P.C., Boston, MA, for Defendant and Counter-Claimant.
Plaintiff New Bedford Marine Rescue, Inc. ("plaintiff"), a Massachusetts corporation with a principal place of business in New Bedford, Massachusetts, filed this admiralty and maritime claim under Rule 9(h) of the Federal Rules of Civil Procedure ("Rule 9(h)") against defendant Cape Jeweler's Inc. ("defendant"), a Massachusetts corporation with a principal place of business in Norwood, Massachusetts and the owner the M/V Memories ("the Memories").
Plaintiff asserts that the service it rendered was a salvage1 service of a high order of merit and, but for this service, defendant's vessel, the Memories, would have suffered a substantial loss. Plaintiff argues that the service was prompt, efficient, successful and required a high degree of skill.
Defendant contends that plaintiff's salvage claim is barred because of the lack of any marine peril to defendant's vessel due to the fact that the vessel was secured to its berth at all relevant times and in no further danger from the sea or the elements. Defendant also filed a counterclaim against plaintiff for unfair and deceptive trade practices under Massachusetts General Laws chapter 93A ("chapter 93A"). Defendant asserts that plaintiff is attempting to fraudulently establish a salvage claim.
This case was tried by consent to this court without a jury pursuant to 28 U.S.C. § 636(c). The following witnesses testified during the one and a half day trial:
(1) George Gray ("Gray"), a certified master diver working part time for plaintiff on an "on call" basis;2
(2) Ralph Joseph ("Joseph"), the owner of New Bedford Marine Rescue, Inc. which started as a small rescue and salvage company in 1995;3
(3) Martin Niemiec ("Niemiec"), the owner of Niemiec Marine and Boat in New Bedford;4 and
(4) Shawn Keegan ("Keegan"), the owner of Cape Jeweler's Inc. and principle operator of the Memories.5
The Memories is docked at the marina, approximately 200 to 300 feet from Gray's houseboat. It is a Canyon 30 vessel, custom made on Cape Cod. The hull specifications list the freeboard forward of the Memories at 4.6 feet and the freeboard aft at three feet.6 At the berth where the Memories is docked, the water level at low tide is approximately six feet.7 The tidal range at this location is about 3.7 to 3.8 feet.
The marina does not offer any security services such as a watchman, nor did Gray act in the capacity as a watchman for the marina. The contract between Keegan and the marina states that the owner is fully responsible for any damage to his boat.
On October 25, 2000, in the late afternoon, Gray was in his houseboat when a man, who also owns a boat at the marina, came to see him. In response to this visit, Gray walked down to the Memories to observe the vessel and assess whether or not it was in any trouble. Gray testified that when he first saw the boat, the stern was down to the point where the water was starting to lap at the scuppers.8 Gray determined that the boat needed immediate attention and went back to his houseboat to get an electric pump and absorbent pads.
Gray stated that he was unsure of the origin of the particular absorbent pads because they are usually replenished by whoever needs and uses them. In the past, however, they have been supplied by plaintiff. The electric pump and other equipment Gray had available on his boat were to use in case of an emergency when Gray would work in the capacity of an employee for plaintiff.9
Gray then went back to the Memories and proceeded to unplug the shore power from the boat. The shore power is 110 volts of electricity and can be lethal if not unplugged before boarding a boat containing water. Although there is also 12 volts of electricity on board, a shock from 12 volts would only cause discomfort. Once Gray boarded the Memories, he brought the pump into the engine compartment located below the deck hatch10 and plugged the pump into the pedestal.11
Gray testified that at this time, the base of the engine was submerged but the water had not reached the engine starters located near the bottom of the engine. Gray then positioned the pump with the overflow from the draw hose pointed overboard and placed absorbent pads inside the engine compartment to soak up the oil. Gray testified that utilizing absorbent pads to soak up oil is a common practice because it prevents environmental problems such as oil spilling into the water outside the vessel. He also stated that it is common to see oil floating on the surface of the water inside a boat, whether it is fuel in origin or oil residue. Gray testified, however, that the Memories had more than an average amount of oil in the bilge indicating to him that the vessel was not well kept.
After he began pumping the water out of the boat, Gray telephoned Joseph for assistance because he knew he should not try to salvage a boat by himself in the event that something went wrong. Gray testified that he decided to call Joseph because Joseph is experienced in salvaging boats and he thought Joseph would be better informed about how to proceed. Furthermore, if the boat needed to be hauled out of the water, Joseph could provide that service. Gray or someone directed by Gray then telephoned the marina's manager to obtain contact information for the Memories' owner in order to inform him that the boat was taking on water.
Joseph arrived at the scene by boat about 15 minutes after speaking with Gray on the telephone. Joseph came aboard the Memories and assessed the situation. He noticed Gray was gaining on the water in the boat and therefore felt it unnecessary to bring another pump on board. Joseph then plugged the scuppers with rags in the event the water line rose up to the scuppers. He also noticed a slight sheen from the discharge of the pump accumulating outside of the boat so he placed several absorbent pads on the water and successfully absorbed the oil.
Joseph also assisted Gray several times in rearranging the pump to position it in the lower part of the bilge. Additionally, Joseph was constantly arranging and placing new absorbent pads inside the boat to soak up the excessive oil. They used approximately 33 absorbent pads during the operation.12 Gray testified that pumping out the boat required about one half hour to an hour once Joseph arrived on the scene.
In the meantime, the general manager of the hotel at the marina approached Joseph with the contact information for the owner of the Memories. She handed Joseph a card with Keegan's contact information including a cellular telephone number as well as a second telephone number. Joseph proceeded to telephone Keegan and inform him that his boat was taking on water and there was a considerable amount of water already in the boat. Joseph testified that he told Keegan he felt it was a salvage situation, there was a pump on board pumping out water, and the boat was on the brink of stabilization.
Keegan initially disagreed with Joseph and Gray being on his boat. Joseph replied that he would be happy to take the plugs out of the scuppers and remove his pump and personnel, but emphasized that Keegan needed to call someone to repair the leak because the boat was in peril. Keegan responded stating he would call his mechanic but, significantly, Keegan asked Joseph to stay with the Memories and not to let it sink. They also spoke about the possibility of hauling the boat out of the water and Keegan informed Joseph that he did not want the boat taken out of the water if at all possible.
Keegan disputes the content of the telephone conversation with Joseph. Keegan maintains he did not ask Joseph to stay and, instead, asked him to leave because Keegan was going to call his mechanic. This court finds Joseph's testimony more credible due to the subsequent facts testified to by both Keegan and Joseph.13
After the telephone call with Keegan, Joseph determined that the source of the flooding was from leaking in the stuffing boxes.14 At the same time, Keegan telephoned Niemiec, his mechanic, and asked him to go over to the boat, secure it, and see if the boat was in trouble. Niemiec arrived by boat with one of his employees, David Matuse ("Matuse"), approximately 15 minutes after speaking with Keegan. Joseph testified that Niemiec brought only tools with him and no additional pumps.
Joseph informed Niemiec that the source of the leak was coming from the stuffing boxes so Matuse took a wrench, opened the engine hatch, went down into the area of the propeller shaft and tightened the stuffing boxes. Niemiec testified that the engine compartment only had about two to three inches of water.15
He also stated that the leaking from the stuffing boxes was not severe, only a little more than stuffing boxes normally leak. In his experience, a small amount of water must leak from the stuffing boxes to keep them from overheating and burning out.
Niemiec then proceeded to telephone Keegan and let him know that he had temporarily fixed the problem and the boat was not in danger. At this time, Joseph also spoke with Keegan to tell him that his boat was secure. Joseph questioned Keegan for information regarding insurance, the insurance agent's name and to verify that Keegan was the owner of the boat. Keegan testified that Joseph also spoke to him about the cost of plaintiff's work. He testified that although Joseph never gave him an exact amount, Joseph said it would be minimal and explained to Keegan how much it costs per foot to pump out water that had not yet reached the gunnels....
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