W. Towboat Co. v. Vigor Marine, LLC

• Decision Date: 21 June 2021
• Docket Number: No. C20-0416-RSM,C20-0416-RSM
• Parties: WESTERN TOWBOAT COMPANY, Plaintiff, v. VIGOR MARINE, LLC, Defendant.
• Court: U.S. District Court — Western District of Washington

544 F.Supp.3d 1100

WESTERN TOWBOAT COMPANY, Plaintiff,

v.VIGOR MARINE, LLC, Defendant.

No. C20-0416-RSM

United States District Court, W.D. Washington, at Seattle.

Signed June 21, 2021

J. Stephen Simms, Pro Hac Vice, Simms Showers LLP, Baltimore, MD, Anthony J. Gaspich, Gaspich Law Office PLLC, Bainbridge Is, WA, for Plaintiff.

Adam Murray, Schwabe Williamson & Wyatt, Vancouver, WA, Christopher H. Howard, David R. Boyajian, Molly J. Henry, Schwabe Williamson & Wyatt, Seattle, WA, Noah Jarrett, Schwabe Williamson & Wyatt, Portland, OR, for Defendant.

ORDER RE: MOTIONS FOR SUMMARY JUDGMENT

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This matter comes before the Court on parties’ cross-motions for summary judgment. Plaintiff Western Towboat Company ("Western") moves for summary judgment on all claims, Dkt. #42, and Defendant Vigor Marine, LLC ("Vigor") moves for partial summary judgment on its counterclaim for general maritime negligence and parties’ cross-claims for breach of contract. Dkt. #39. The Court finds oral argument unnecessary to resolve the issues. Having considered parties’ motions, responses, replies, and the declarations and exhibits attached thereto, the Court GRANTS IN PART AND DENIES IN PART Vigor's motion and DENIES Western's motion as set forth below.

II. BACKGROUND

A. The Drydock

The Drydock YFD-70 ("The Drydock") was a three-section steel structure constructed in 1945. Its center section ran 368 feet long and 118 feet wide, with two end sections each 80 feet long and 118 feet wide. With both end sections attached, the total length of the vessel was 528 feet. The YFD-70 was one of three drydocks in its class, the others being the YFD-69 and the YFD-71. On April 14, 2016, Vigor sold the Drydock to Amaya Curiel Corporation ("Amaya Curiel"). Dkt. #42-12 at 8. Amaya Curiel runs a shipyard in Mexico that repairs and scraps vessels. Id. at 9. Vigor contracted Western for towage of the Drydock from Seattle, Washington to Ensenada, Mexico using the tugboat OCEAN RANGER under the command of Captain Stephen McGavock. Western was aware prior to the voyage that Vigor sold the Drydock to Amaya Curiel for use as scrap. See Dkt. #42-17 at 4.

Before the voyage, Vigor prepared the Drydock for towing with a pre-tow suitability survey report conducted by Captain Richard Shaw, a marine surveyor with Bowditch Marine, Inc. ("the Bowditch Report."). The Bowditch Report, dated October 18, 2016, recommended that the Drydock be towed in its extended configuration, with bow and stern sections attached. However, guidance from the U.S. Navy titled "General Information and Operating Manual" recommends towing the family of drydocks YFD-68, YFD-69, YFD-70, and YFD-71 with bow and stern sections detached and docked on the center section for towing. Dkt. #42-8 at 8 (stating that the dock "has been designed to facilitate towing at sea. When towed, the end sections are stowed on the center section."). The Navy's manual clarifies that its contents "are for information and guidance only" as opposed to required operating procedure. Id. at 7.

The Bowditch Report concluded that the Drydock was "appropriately prepared and rigged without incident, lashed and secured in apparent good order, and conforms with normal custom and practice for towage of a Marine Industrial Dry Dock Platform from Seattle, Washington for a Coastal Voyage to Ensenada, Mexico via the Puget Sound, the Straits of Juan de Fuca and then proceeding south." Dkt. #42-10 at 21. However, Western's expert witness notes that photographs taken at the time of the survey, but not included in the Bowditch Survey, showed more significant corrosion than the photographs in the survey report. Dkt. #42-6 at 14. Captain Shaw declares that at the time he surveyed the Drydock, Vigor did not inform him that (1) the original Navy design for open ocean tow was that its two end sections would be detached from the center section and loaded onto the center section for tow; (2) Heger Drydock had recommended to Vigor that the YFD-69 be towed disassembled from Portland to Seattle; (3) Vigor's sale contract to Amaya Curiel required carriage to Ensenada in detached form, on a heavy-lift ship; and (4) that Vigor had performed an ultrasonic gauging in 2013 showing significant wastage. Dkt. #42-24 at 2. Vigor also does not dispute that it failed to install a flood alarm on the Drydock, which was a requirement under the U.S. Navy Tow Manual for dead ship tows. See Dkt. #42-13 at 6 ("All unmanned tows shall be equipped with flooding alarms. Flooding alarms indicate to the towing ship that there is a problem with the tow, allowing corrective action to be taken before the tow sinks.").

In addition to noting the conditions of the Drydock, the Bowditch Report also set forth recommendations for the tow that were provided to Western's Port Captain, Russell Shrewsbury, and Captain McGavock. Dkt. #40-3 at 7-8. The Bowditch Report specifically required that the OCEAN RANGER "shall avoid heavy head or beam seas (greater than 8-10 ft.) to avoid pitching or rolling and ensure that seamanship techniques are employed to minimize the effects of head seas and rolling upon [the Drydock]." Id. at 7 (emphasis added). Furthermore, the Bowditch Report required that the OCEAN RANGER "is not to proceed from any safe port or sheltered waters during the voyage without first determining that reasonable weather conditions (less than Force 6) are predicted along his intended track , nor is he to proceed at speeds excessive for the prevailing weather ...." Id. (emphasis added). Western accepted and incorporated the recommendations in the Bowditch Survey into its Tow Plan, although it revised the wind direction condition from "less than Force 6" to the slightly higher "20-25 knots" in a Tow Plan Amendment. Dkt. #40-4 at 4.

B. Voyage and Sinking of the Drydock

On October 4, 2016, Western and Vigor entered into an agreement ("the Towing Agreement") setting forth parties’ obligations and agreed-upon rates for the Drydock tow. Dkt. #40-1 (identifying Vigor as "Customer" and Western as "Owner."). The Towing Agreement provided that in the event the tow became "totally lost, the Tug shall be released from performance under this agreement." Id. at 5. The Towing Agreement further provided that "Customer [Vigor] shall pay Owner [Western] the lump sum hire identified above, which shall be fully and irrevocably earned upon commencement of services, even if the Tug, Tow and/or cargo is lost and/or the voyage is delayed, frustrated or cancelled, except to the extent loss, delay, frustration, or cancellation arises from the negligence or willful misconduct of Owner [Western]. " Id. at 3 (emphasis added).

After waiting for a storm to clear, the tug and tow left Seattle the morning of October 17, 2016. The ship's log reports that between October 19 and 20, near the border of California and Oregon, the tug encountered southerly winds within the 25 knots range and waves between six and nine feet. Dkt. #42-19 at 5-6. The tug proceeded at a speed between 2 and 4 knots. Id. The tug again faced strong winds of 30 to 40 knots from approximately 8:00 pm on October 23 until 12:00 pm on October 24. Id. at 9-10. On October 25, 2016, at 2:30 pm, Western discovered that the Drydock had a port bow list. Id. at 11. As the list increased, Western's crew agreed that the dock appeared to be taking on water. Dkt. #42-6 at 8. Western altered course to San Francisco Bay for the next 4.5 hours to seek assistance and minimize the ingress of water. However, by late afternoon, the port listing had continued and was accompanied "by a forward trim sufficient to bring the forward port pontoon deck awash." Id.

After communicating with the United States Coast Guard ("USCG"), Western concluded it was unsafe to enter San Francisco Bay in the event the Drydock sank, which would create a major navigational hazard in the San Francisco Bay Area. See Dkt. #42-20 at 9 (Email from Western's owner, Bob Shrewsbury, to Vigor's Daniel Keen on October 25 at 6:26 pm stating, "We want to have a look in the daylight to make sure we are safe to transit the San Francisco Bar Crossing. We do not want the Dock to sink where it would have to be a Major Salvage job. If it goes down in 1500 feet of the coast is one thing. But we don't want it on the Bar entrance or Harbor."). Keen replied that he would run calculations through flooding analysis software to determine whether the Drydock would remain afloat. Dkt. #42-20 at 6. He agreed that Western should keep the tow in deep water. Id. At 6:49 pm, Western's Russell Shrewsbury informed Keen that the Drydock's forward port corner was awash. Dkt. #42-20 at 6. Approximately three hours later, Keen reported the tank numbers. Keen recalls that, after completing the calculations, he did not believe there was more than a fifty percent chance that the tow would sink. Dkt. #42-14 at 158:17-23.

According to the ship's log, at 7:00 pm on October 25, Western's office "directed vessel to head for Monterey Bay due to tow's conditions." Dkt. #40-5 at 10. At that point, Captain McGavock had been monitoring the tow for "several hours" and observed a "deteriorating stability" that he determined made it "unsafe to head into San Francisco Bay for repairs." Dkt. #42-23 at 29. At that point, Captain McGavock made the decision to sail away from the termination of San Francisco Bay's marine traffic lanes and "plotted a course for Pioneer Canyon in case we had to abandon the sinking tow." Id.

According to Keen, it was Western's idea to proceed to Monterey. Dkt. #42-14 at 160:8-11; see also id. at 162:24-25; 163:1 ("Western actually are the ones who recommended Monterey and also recommended a contact for shoreside support."). Emails between Western's Bob Shrewsbury and Vigor's Paul Torrey corroborate Keen's account that Western proposed the idea and decided to proceed into Monterey Bay. See Dkt. #42-20 at 5 (Message from Western's Shrewsbury to Keen dated ...