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Crowley Marine Services, Inc. v. Vigor Marine LLC

United States District Court, W.D. Washington

January 27, 2014

CROWLEY MARINE SERVICES, INC., Plaintiff,
v.
VIGOR MARINE LLC, Defendant

Page 1092

For Crowley Marine Services, Inc., Plaintiff: Molly J. Henry, Robert Joseph Bocko, LEAD ATTORNEYS, Jensen S. Mauseth, KEESAL YOUNG & LOGAN (WA), SEATTLE, WA.

For Vigor Marine LLC, Defendant: Daniel F Knox, LEAD ATTORNEY, PRO HAC VICE, SCHWABE WILLIAMSON & WYATT (OR), PORTLAND, OR; Claire L. Been, Colin Jeffrey Folawn, Noah Jarrett, SCHWABE WILLIAMSON & WYATT (SEA), SEATTLE, WA.

OPINION

Page 1093

ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT

Marsha J. Pechman, Chief United States District Judge.

This matter is before the Court on cross motions for partial summary judgment by Defendant Vigor Marine Services, Inc. (" Vigor" ) and Plaintiff Crowley Marine LLC (" Crowley" ). (Dkt. Nos. 68, 71). The Parties have stipulated as to liability and the issue before the Court is the scope of the remedy. (Dkt. No. 53.) The Court GRANTS in part and DENIES in part each motion as discussed below.

Background

This case arises out of the destruction of the ocean going tug INVADER. (Dkt. No. 1 at 2.) Crowley was owner and operator

Page 1094

of INVADER. (Id. at 1.) At all material times, Vigor was engaged in the ship repair business. (Id. at 2.) Crowley solicited bids to repair INVADER from Vigor and other shipyards in January of 2012. (DKt. No. 79-8.) Crowley first sent a solicitation with information regarding Invader Class tugs, of which the INVADER was a member. (Dkt. No.79-1 at 2.) This solicitation did not contain any additional terms or conditions. (Id.) Crowly later sent a solicitation specific to the tug INVADER, which contained a " Terms and Conditions" section. (Dkt. No. 76-2 at 2.) Vigor representative Mark Donohue submitted Vigor's bid on the INVADER repair, stating Crowley had sent two different " standard specifications" and the bid was based on the first one. (Dkt. No. 84-1 at 1.) The bid did not include any reference to the " Terms and Conditions" contained in the solicitation. (Id.)

Vigor's bid was accepted by delivery of the tug. In early March 2012 INVADER arrived at the yard designated by Vigor, owned by Vigor's wholly-owned subsidiary Everett Shipyards, Inc. (" ESI" ). (Id. at 2.) INVADER entered a drydock to have Vigor perform repairs. (Id.) On March 18, 2012, the floating drydock collapsed and sank by its starboard wing wall. (Dkt. No. 1 at 2.) The sinking of the drydock caused INVADER to break loose and fall starboard, flood, and partially submerge, causing extensive damage. (Id. at 2.) At the time INVADER was lost, the commissioned repair work was nearly complete. (Dkt. No. 71 at 7.) After INVADER was righted and sent pier side, it rested at ESI until Crowley retook possession. (Dkt. No. 72-3 at 5.) Vigor representative Adam L. Beck testified security and wharfage fees for INVADER were charged to ESI. (Id. at 9.)

On October 4, 2012, this Court granted the Parties' stipulation and entered an Order stating Vigor materially breached its vessel repair contract with Crowley and breached the warranty of workmanlike performance implied under that contract. (Dkt. No. 53 at 1.) The Order notes Vigor does not dispute it is liable to Crowley for the fair market value of the INVADER, but the parties otherwise do not agree on the scope of the remedy. (Id.) On November 18, 2013, Vigor submitted a motion for partial summary judgment requesting the Court rule (1) the INVADER was a constructive total loss (" CTL" ) and Crowley's damages are limited by the maritime CTL rule; and (2) Crowley cannot bring a declaratory judgment claim regarding liabilities to third parties. (Dkt. No. 68 at 2, 20.) Later that day, Crowley submitted a motion for partial summary judgment, asking the Court to rule (1) Vigor's tort theory affirmative defense of the CTL rule is inapplicable and ...


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