Sullivan v. Young Bros. & Co., Inc.

• Decision Date: 05 December 1995
• Docket Number: No. 95-1876,95-1876
• Citation: 91 F.3d 242
• Parties: , 30 UCC Rep.Serv.2d 121, Prod.Liab.Rep. (CCH) P 14,703 Rodney A. SULLIVAN, Plaintiff-Appellee, v. YOUNG BROTHERS & COMPANY, INC., Defendant-Appellee, Vernay Products, Inc., Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 242

91 F.3d 242

35 Fed.R.Serv.3d 5, 30 UCC Rep.Serv.2d 121,

Prod.Liab.Rep. (CCH) P 14,703

Rodney A. SULLIVAN, Plaintiff-Appellee, v. YOUNG BROTHERS & COMPANY, INC., Defendant-Appellee Vernay Products, Inc., Defendant-Appellant.

No. 95-1876.

United States Court of Appeals First Circuit.

Heard Dec. 5, 1995.

Decided Aug. 1, 1996.

Richard L. Suter, Portland, ME, with whom Preti, Flaherty, Beliveau & Pachios was on brief, for appellant.

John R. Bass II, Portland, ME, with whom Thompson, McNaboe, Ashley & Bull was on brief, for appellee Rodney A. Sullivan.

Barry K. Mills, Ellsworth, ME, with whom Hale & Hamlin was on brief, for appellee Young Brothers & Company, Inc.

Before TORRUELLA, Chief Judge, CYR, Circuit Judge, and SKINNER, ^* Senior District Judge.

TORRUELLA, Chief Judge.

This products liability action arose out of the sinking of the lobster vessel, the SEA FEVER. The vessel's owner and operator, Rodney Sullivan ("Sullivan"), by his insurer, brought this suit to recover for damages sustained due to the SEA FEVER's sinking. Sullivan brought suit against Vernay Products, Inc. ("Vernay") and Young Brothers and Company Inc. ("Young Brothers") under theories of strict liability, negligence, and breach of implied and express warranties. Young Brothers crossclaimed against Vernay for indemnification and contribution, and Vernay similarly crossclaimed against Young Brothers for indemnification and contribution. The district court found only Vernay to be liable for the damages caused by the SEA FEVER's sinking and awarded damages to Sullivan in the amount of $54,318.68. On the crossclaim, it entered judgment in favor of Young Brothers. Before us is Vernay's appeal of the district court's judgment, damage award, and denial of its motion for summary judgment and motions for judgment as a matter of law. Also before us is Sullivan's cross-appeal of the district court's finding that Young Brothers was not liable. For the reasons stated below, we affirm, in part, and reverse, in part, the judgment below.

I. BACKGROUND

We take the facts, particularly the more technical aspects, almost verbatim from the district court's detailed opinion.

The SEA FEVER is a forty-foot, fiberglass hull lobster boat built by Young Brothers in 1989, which Sullivan purchased new from Young Brothers in February 1990 for $122,000. Sullivan added various items of gear and furnishings at a cost of approximately $10,000. Young Brothers built the SEA FEVER with a wet exhaust system, which was composed, in part, of six-inch diameter Vernatube fiberglass marine wet exhaust tubing manufactured by Vernay Products (the "Vernatube"), which is a manufacturer of various fiberglass components of marine wet exhaust systems. H & H Propeller Shop ("H & H Propeller" or "H & H"), ¹ Vernay's distributor in Maine The SEA FEVER's wet exhaust system was constructed with a fifteen-foot length of Vernatube. Because Vernatube is sold in ten-foot lengths, Young Brothers fiberglassed together a ten-foot and a five-foot length of Vernatube, making, in effect, a single length of tube. This span of Vernatube was connected to the engine at the exhaust manifold by a flexible rubber hose and rigidly installed in the hull of the vessel by fiberglass where the Vernatube passed through the fish hold bulkhead, the lazarette bulkhead, and the transom. Aft of the manifold, it was also fiberglassed to each of the two bulkheads and the transom and the Vernatube exhaust was supported by a 3/4-inch marine plywood bracket lined with urethane rubber at about the midway point of the fish hold. The district court found that the SEA FEVER's Vernatube wet exhaust system was installed in conformity with generally accepted methods of installation among builders of similar vessels in Maine. The SEA FEVER was also equipped with a Rule 1500 gallon automatic bilge pump. This pump, which was capable of discharging up to 1500 gallons of water per hour, could be operated manually or automatically.

was the parts supplier from which Young Brothers purchased the Vernatube installed aboard the SEA FEVER.

Sullivan operated the SEA FEVER as a commercial lobster vessel during the 1990 fishing season without significant problems. In early 1991, Sullivan discovered a crack (the "1991 crack") in the portion of the Vernatube exhaust located in the lazarette, which permitted water to enter the vessel to the point of near sinking. Sullivan discovered the crack because the bilge pump was running more than usual. At the time, the boat was tied to the dock and fully loaded with 90-100 lobster traps, such that the wet exhaust tubing was completely submerged. Sullivan notified Young Brothers of this crack, and Young Brothers repaired it by fiberglassing over the break. Young Brothers also notified H & H Propeller of the crack. Neither of these companies notified Vernay of this crack, and there was no evidence that Sullivan did. The cause of this crack was never investigated or discovered.

After this repair, the SEA FEVER operated without further problems and Sullivan fished the 1991 season until January 1992. Thereafter, the SEA FEVER remained at her slip until March 1992, when it was hauled for routine maintenance. While the SEA FEVER was out of the water, Sullivan did not specifically inspect the exhaust system. The record shows that the last time he inspected it was at the end of the summer of 1991. On March 17, 1992, Edward S. Blackmore, a marine surveyor appointed by Sullivan's marine hull insurance company, surveyed the SEA FEVER. Blackmore found the vessel to be in "A-1" condition with a fair market value of $130,000. Blackmore's inspection included observation of the Vernatube exhaust, which did not have any water in it at the time of the inspection as the SEA FEVER was not loaded. Nothing unusual was noted about the condition of the Vernatube and Blackmore observed no fractures, no discoloration, and no staining or other evidence of failure in the Vernatube.

After the March maintenance and inspection, the SEA FEVER was not operated and remained at her slip until April 4, 1992. On that day, Sullivan and his sternman made an eight-to-ten-mile trip aboard the SEA FEVER, picking up approximately eighty lobster traps. After returning, they tied the SEA FEVER to the dock at about 1:00 p.m. and went home for the day. Due to the weight of the lobster traps, the end of the exhaust discharge port was several inches under water and, as a result, the Vernatube had water in it. The SEA FEVER was left with the automatic bilge pump switch in the "off" position rather than the "automatic" one. Later that day, at approximately 7:30 p.m., Sullivan was notified that the SEA FEVER had sunk at the dock. Sullivan retained Wayne Godfrey, a salvage diver from D & G Diving Services, to raise the vessel, which was approximately 90% to 95% submerged. The SEA FEVER was surveyed by On July 26, 1995, after a four-day bench trial, the district court issued its written decision and order, in which it found that the cause of the SEA FEVER's sinking was a full circumference crack in the Vernatube located a few inches forward of the bulkhead between the lazarette and fish hold (the "1992 crack"). The district court further found that this crack was a fatigue failure caused by tension stresses over time exceeding the axial length of the tube. As there was no other known instance prior to the lawsuit in which a Vernatube had cracked under similar circumstances, much of the trial testimony was directed at the question of whether the 1992 crack had been caused by a defective section of Vernatube or by improper installation of the exhaust system by Young Brothers.

Werner Splettstoesser of Marine Safety Consultants on behalf of Sullivan's insurer, who determined that the SEA FEVER sank due to a crack in the wet exhaust tubing which was visible from the access hatch to the fish hold compartment. This suit followed.

After evaluation of expert testimony offered by all three parties, review of the largely technical evidence, and inspection and analysis of the SEA FEVER's Vernatube, the district court found that the ten-foot section of the Vernatube, which developed at least two cracks during a two-year period, was defective. The district court specifically found that the evidence regarding the Vernatube's porosity, wall thickness, and longitudinal strength "clearly proves that the section of Vernatube was defective" and that its defect contributed to the Vernatube's failure in the SEA FEVER. In particular, the district court found that with respect to these physical measures, the Vernatube did not live up to the specifications described in the Vernay Products Information Sheet (the "VPIS"). In making its finding, the district court noted that inspection of the Vernatube revealed several cracks, delamination, and areas of prospective failure, all located in the ten-foot section as well as one area of debonding (i.e., where strands of fiber had come loose). The district court explicitly ruled out other claimed reasons for the Vernatube's failure, noting that there was no evidence of owner misuse and no indication of Vernatube failures in boats similarly constructed. Noting that the trial testimony "clearly established that hundreds of boats of similar design have been constructed with this type of rigid exhaust system without one known failure," the district court found that the rigid installation of SEA FEVER's exhaust system was not a cause of the Vernatube's failure and that, therefore, Young Brothers was not strictly liable for its installation of the wet exhaust system. In making this finding, the district court noted that "the existence of multiple failures and imperfections within the single ten-foot section of Vernatube, notwithstanding the product's known track record of problem-free similar installations in hundreds of other vessels, supports the conclusion that the SEA FEVER sank because this particular length of...