Maritech Marine Services, LLC v. Bay Welding Services, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MARITECH MARINE SERVICES,
LLC,
Plaintiff,
v.
BAY WELDING SERVICES, INC.,
Defendant.
Case No. 3:20-cv-00231-SLG
ORDER RE MOTION FOR SUMMARY JUDGMENT
Before the Court at Docket 17 is Plaintiff Maritech Marine Services, LLC’s
(“Maritech”) Motion for Summary Judgment or, in the Alternative, Partial Summary
Judgment. Defendant Bay Welding Services, Inc. (“Bay Weld”) responded in
opposition at Docket 29, to which Maritech replied at Docket 36. Oral argument
was held on January 13, 2022.
BACKGROUND
This action stems from the alleged defective repair and modification of a 44-
foot aluminum catamaran, the M/V Lightning, owned by Maritech, a vessel
chartering company based in Anchorage, Alaska. Maritech alleges that Bay Weld,
a custom boat manufacturer based in Homer, Alaska, negligently retrofitted the
vessel with a defective control system, among other issues, which resulted in the
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vessel’s allision with a fuel dock in Cordova, Alaska.1 Maritech’s claimed damages
include the net proceeds lost from a cancelled charter arrangement for the
Lightning and the cost of hiring other contractors to investigate the control system
issues, complete additional work on the vessel, and repair damage from the
allision.2 Maritech filed the instant motion on September 17, 2021, asserting that
it is entitled to summary judgment on its claims for breach of contract, negligence,
breach of the implied warranty of workmanlike performance, and violation of
Alaska’s Unfair Trade Practices Act (“UTPA”).3 The parties agree that maritime
law applies to this case.4
The facts, viewed in the light most favorable to Bay Weld for purposes of
this summary judgment motion, are as follows.5 In the fall of 2018, Brian
Edmondson, the sole member of Maritech,6 approached Eric Engebretsen, the
1 See generally Docket 1.
2 See Docket 17 at 20–21.
3 Docket 17.
4 See Docket 1 at 2, ¶ 4; Docket 11 at 2, ¶ 4.
5 See Tolan v. Cotton, 572 U.S. 650, 657 (2014) (stating that for summary judgment, “a court
must view the evidence ‘in the light most favorable to the opposing party’” (quoting Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970))).
6 Docket 17-1 at 1, ¶ 1 (Edmondson Decl.)
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owner and operator of Bay Weld,7 about a remodel and upgrade of the Lightning.8
Mr. Engebretsen initially turned down the project based on lack of labor capacity
but later informed Mr. Edmondson that Bay Weld could complete the project after
learning that contractor Mike Stockburger was available to provide assistance.9
After discussions with Mr. Edmondson regarding the scope of the project, Mr.
Engebretsen drafted a cost estimate and explained the details of it to Mr.
Edmondson.10 Following further discussions, Mr. Engebretsen produced an
updated Cost/Work Proposal Estimate (“the Estimate”).11 Maritech signed the
Estimate in early December 2019, and Bay Weld began work on the Lightning
shortly thereafter.12
According to Bay Weld, Mr. Engebretsen did not state or imply “that Bay
Weld would certify that any component in the Lightning would function for a
particular period of time,” and the Estimate does not contain such a certification.13
7 Docket 30 at 1, ¶ 1 (Engebretsen Aff.).
8 Docket 29 at 2 (citing Docket 30 at 2, ¶ 4 (Engebretsen Aff.)).
9 Docket 29 at 2–3 (citing Docket 30 at 2, ¶ 4 (Engebretsen Aff.)).
10 Docket 29 at 3 (citing Docket 30 at 3, ¶ 5 (Engebretsen Aff.)).
11 Docket 29 at 3 (citing Docket 30 at 3, ¶ 6 (Engebretsen Aff.); Docket 17-1 at 52–56 (Ex. 8)).
12 Docket 29 at 4 (citing Docket 30 at 4, ¶ 9 (Engebretsen Aff.)).
13 Docket 29 at 4 (citing Docket 30 at 4, ¶ 8 (Engebretsen Aff.); Docket 17-1 at 52–56 (Ex. 8)).
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Moreover, while Mr. Edmondson and Mr. Engebretsen discussed a rough project
completion timeline of spring 2020, they did not agree on a specific completion
date, and no such deadline is specified in the Estimate.14 The Estimate contains
eighteen line items, three of which are relevant to the parties’ dispute: Items 4, 5,
and 10.
Item 4 provides that Bay Weld will “[u]pgrade UltraJet 340’s w/ full internal
inspection.”15 According to Bay Weld, this provision “arose from Edmondson’s
request for Bay Weld to ‘take a look at’ the jets while replacing the impellers.”16
Bay Weld determined that the Lightning’s bearings and bearing seals were in
“good working condition” by looking for damaged or worn-out components when
disassembling and reassembling the bearings, rotating the bearings to listen for
noises indicating problems, and listening for noises during sea trials after the work
on the Lightning was complete.17
Item 5 provides that Bay Weld will “[a]dd Glendinning Joystick controls w/
full electronic controls replacement and electronic steering system.”18 Before the
14 Docket 29 at 4–5 (citing Docket 30 at 4, ¶ 9 (Engebretsen Aff.); Docket 17-1 at 52–56 (Ex. 8)).
15 Docket 17-1 at 53 (Ex. 8).
16 Docket 29 at 4 (citing Docket 30 at 4, ¶ 10 (Engebretsen Aff.)).
17 Docket 29 at 4 (citing Docket 30 at 4–5, ¶ 11 (Engebretsen Aff.)).
18 Docket 17-1 at 53 (Ex. 8).
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retrofit project, the Lightning had an existing functional Glendinning control system,
which Bay Weld removed to install a new, modern system.19 Bay Weld worked
directly with John Glendinning, the system’s manufacturer, to determine which
existing components of the original system could be integrated into the new system
and which needed replacement.20
Item 5 also provides that Bay Weld’s work will include “complete controls
and steering package for two stations and complete hydraulic system w/ dual
pumps.”21 Bay Weld states that after discussing the original hydraulic system with
Mr. Glendinning, it determined that the “existing pumps functioned well and [were]
an acceptable configuration” and thus chose to retain the pumps and integrate
them into the new system.22 According to Bay Weld, “[t]he hydraulic system,
including the pumps, functioned well upon delivery of the vessel.”23 Finally, Item
10 provides that Bay Weld will “[t]est and inspect all vessel systems.”24
19 Docket 29 at 6 (citing Docket 30 at 5–6, ¶ 12 (Engebretsen Aff.)).
20 Docket 29 at 6 (citing Docket 30 at 5–6, ¶ 12 (Engebretsen Aff.)).
21 Docket 17-1 at 53 (Ex. 8).
22 Docket 29 at 6–7 (citing Docket 30 at 6, ¶ 13 (Engebretsen Aff.)).
23 Docket 29 at 7 (citing Docket 30 at 6, ¶ 13 (Engebretsen Aff.)).
24 Docket 17-1 at 55 (Ex. 8).
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Bay Weld completed its work on the Lightning in May 2019.25 Before
delivering the Lightning to Maritech, Bay Weld tested the vessel’s systems in the
water in Homer for over a week.26 Mr. Engebretsen, Mr. Stockburger, and Mr.
Glendinning were all present for the launch and initial testing of the Lightning.27
During the initial testing and calibration of the control system, the system’s joystick
failed to properly respond to commands.28 Mr. Glendinning determined that the
failure was due to a control system software issue and resolved the problem by
upgrading the software.29 Mr. Engebretsen detected a different issue with the
control system involving “the bucket position sensors going into a dead zone and
the control bucket becoming unresponsive,” which he and Mr. Glendinning
resolved by “changing software values to eliminate any dead zones in the
sensor.”30 After resolving the two issues, Mr. Engebretsen operated the Lightning
25 Docket 29 at 7 (citing Docket 30 at 6, ¶ 14 (Engebretsen Aff.)).
26 Docket 29 at 7 (citing Docket 30 at 6–7, ¶ 15 (Engebretsen Aff.)).
27 Docket 29 at 7 (citing Docket 30 at 6–7, ¶ 15 (Engebretsen Aff.); Docket 31 at 3, ¶ 5
(Stockburger Aff.)).
28 Docket 29 at 7 (citing Docket 30 at 6–7, ¶ 15 (Engebretsen Aff.); Docket 31 at 3, ¶ 5
(Stockburger Aff.)).
29 Docket 29 at 7 (citing Docket 30 at 6–7, ¶ 15 (Engebretsen Aff.)).
30 Docket 29 at 7–8 (citing Docket 30 at 6–7, ¶ 15 (Engebretsen Aff.)).
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several times and tested “all possible maneuvers within its capability” with no
further control system or mechanical problems.31
After the initial testing of the vessel, Mr. Edmondson joined Mr. Engebretsen
on a sea trial of the Lightning during which Mr. Engebretsen demonstrated how to
operate the Lightning and had Mr. Edmondson practice operating the vessel.32
During the sea trial, Mr. Engebretsen explained that the heading line in the
Lightning’s Garmin navigation system was malfunctioning and advised Mr.
Edmondson about options for resolving the issue.33 Bay Weld maintains that all of
the vessel’s other systems, including the navigation system’s auto-pilot and
“dodge” features, were “functioning properly” at this time.34 After finishing the sea
trial in early June 2019, Mr. Edmondson and Mr. Engebretsen agreed that the
project was complete and Mr. Edmondson took possession of the Lightning on
June 5, 2019; Bay Weld sent its final invoice to Maritech shortly thereafter, and
Maritech was paid in full.35
31 Docket 29 at 8 (citing Docket 30 at 7, ¶ 16 (Engebretsen Aff.)).
32 Docket 29 at 8 (citing Docket 30 at 7–8, ¶ 17 (Engebretsen Aff.)).
33 Docket 29 at 8 (citing Docket 30 at 7–8, ¶ 17 (Engebretsen Aff.)).
34 Docket 29 at 8–9 (citing Docket 30 at 7–8, ¶¶ 17–18 (Engebretsen Aff.)).
35 Docket 29 at 8–9 (citing Docket 30 at 8, ¶ 18 (Engebretsen Aff.)); see also Docket 17 at 7.
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Twice during the summer of 2019, Mr. Edmonson contacted Mr.
Engebretsen via text message about apparent control system issues with the
Lightning, and Mr. Engebretsen provided advice about the possible causes of the
issues and how to resolve them.36 Bay Weld maintains that Mr. Edmondson did
not follow up regarding either issue or request further assistance from Bay Weld.37
Maritech had work done on the Lightning by another business in the fall and
winter of 2019, including replacing the starboard reduction gear, water heater, and
one of the hydronic heaters.38 According to Bay Weld, Maritech chose not to
employ Bay Weld for this work and did not contact Bay Weld regarding any issues
with the starboard jet unit until May 2020.39 Later, in June of 2020, Maritech
removed and reinstalled the Lightning’s bucket rams in order to replace the jet
bearings and replaced the starboard bucket ram.40
36 Docket 29 at 9 (citing Docket 30 at 8, ¶ 19 (Engebretsen Aff.); Docket 17-1 at 88–95 (Exs.
15–16)).
37 Docket 29 at 9 (citing Docket 30 at 8, ¶ 19 (Engebretsen Aff.)).
38 Docket 29 at 9 (citing Docket 17-1 at 9 (Edmondson Decl.)).
39 Docket 29 at 9 (citing Docket 17-1 at 9, 11–12 (Edmondson Decl.); Docket 29-3 (Edmondson
Deposition)).
40 Docket 29 at 11 (citing Docket 17-1 at 12 (Edmondson Decl.); Docket 17-3 at 5 (Ferroni
Decl.); Docket 29-3 (Edmondson Deposition)); Docket 31 at 3–4, ¶ 7 (Stockburger Aff.)).
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On June 26, 2020, the Lightning ran into a fuel dock in Cordova, Alaska,
while being operated by Mr. Edmondson, causing damage to the vessel.41 Shortly
after the allision, Mr. Edmondson told Mr. Stockburger that “when the Lightning
was approaching the fuel dock, he pulled on the Lightning’s control system joystick
to slow the vessel and the vessel was pulling in the wrong direction.”42 On June 29,
2020, Mr. Edmondson emailed Mr. Glendinning and Mr. Engebretsen to inform
them about a “product liability issue” with the Lightning’s control system, requesting
that a Glendinning service technician inspect the control system and provide a
report on the cause of the Lightning’s allision in Cordova.43 Bay Weld offered to
inspect and repair the Lightning, but Mr. Edmondson declined the offer because
he did not want to run the Lightning to Homer.44 Mr. Edmondson instead chose to
hire Catalyst Marine and Stillwater Marine to investigate the control system issue
and repair the Lightning in Seward.45 The Coast Guard also inspected the
Lightning after the allision and decided not to put a hold on the vessel returning to
41 Docket 29 at 9 (citing Docket 29-3 (Edmondson Deposition); Docket 17-1 at 15 (Edmondson
Decl.)).
42 Docket 29 at 10 (citing Docket 31 at 3, ¶ 6 (Stockburger Aff.)).
43 Docket 29 at 10 (citing Docket 30 at 8, ¶ 20 (Engebretsen Aff.); Docket 17-1 at 105–06 (Ex.
20)).
44 Docket 29 at 10 (citing Docket 30 at 8, ¶ 20 (Engebretsen Aff.); Docket 29-1 (Edmondson
Deposition)).
45 Docket 29 at 10 (citing Docket 17-1 at 15 (Edmondson Decl.)).
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that season.46 However, Maritech nonetheless cancelled its upcoming charter
contract with Alaska Galore Tours due to concerns about the Lightning’s control
system.47
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” The burden of
showing the absence of a genuine dispute of material fact lies with the movant.48
If the movant meets this burden, the non-moving party must demonstrate “specific
facts showing that there is a genuine issue for trial.”49 In deciding a motion for
summary judgment, “a court must view the evidence ‘in the light most favorable to
the opposing party.’”50
46 Docket 29 at 10–11 (citing Docket 29-3 (Ferroni Deposition)).
47 Docket 29 at 10 (citing Docket 17-1 at 12, 16 (Edmondson Decl.)).
48 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
49 Id. at 324 (quoting Fed. R. Civ. P. 56(e)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
50 Tolan, 572 U.S. at 657 (quoting Adickes, 398 U.S. at 157); see also Anderson, 477 U.S. at
255.
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DISCUSSION
Maritech contends that there are no genuine issues of material fact and that
it is entitled to summary judgment on all its claims because “[t]here is
overwhelming evidence that Bay Weld breached its contract, negligently installed
and failed to install essential vessel control components, and failed to inspect,
diagnose, and resolve dangerous defects it owed a duty to cure.”51 In support of
its motion, it has filed email and text communications between the parties, a draft
and final Cost/Work Proposal Estimate, and logbook entries detailing work on the
vessel and issues with the control system, among other evidence.52 Maritech has
also submitted declarations from Mr. Edmondson; Laura Edmondson, Mr.
Edmondson’s spouse; and Enrico Ferroni, the managing member of Stillwater
Marine Service, LLC, who performed repair work on the Lightning.53
Bay Weld responds that Maritech has failed to meet its initial burden as the
movant to establish the absence of genuine issues of material fact because “the
testimony and evidence submitted by Maritech demonstrates the existence of
51 Docket 17 at 2–3.
52 See Docket 17-1 (Edmondson Decl.) (detailing exhibits).
53 See Docket 17-1 (Edmondson Decl.); Docket 17-2 at 1, ¶ 1 (Edmondson Decl.); Docket 17-3
at 1, 3, ¶¶ 1, 8 (Ferroni Decl.).
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genuine issues of material fact.”54 The manufacturer points to factual disputes
bearing on contract interpretation, suggests several alternate causes for the
Cordova allision, and raises factual issues regarding Maritech’s mitigation of
damages.55 Further, Bay Weld asserts that even if Maritech has met its initial
burden, Bay Weld’s response in opposition “demonstrates numerous genuine
disputes of material fact related to liability and damages that preclude summary
judgment.”56 In support of its opposition, Bay Weld has submitted excerpts of Mr.
Edmondson’s and Mr. Ferroni’s depositions, excerpts of Maritech’s discovery
responses, and an assessment of the Lightning’s condition in August 2021 from
Siloh Marine Consultants.57 Bay Weld has also submitted affidavits from Mr.
Engebretsen and Mr. Stockburger, the owner and operator of Seaside Services,
whom Bay Weld employed to assist in the retrofit and renovation of the Lightning.58
As detailed below, the Court finds that summary judgment—whether full or
partial—is not appropriate at this time. Even assuming that Maritech met its initial
burden on summary judgment, Bay Weld’s response in opposition has
54 Docket 29 at 15–16.
55 Docket 29 at 16–18, 30–32.
56 Docket 29 at 1–2.
57 See Docket 29-1; Docket 29-2; Docket 29-3; Docket 29-4.
58 See Docket 30 (Engebretsen Aff.); Docket 31 at 2, ¶ 2 (Stockburger Aff.).
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demonstrated that there are numerous genuine disputes of material fact pertaining
to liability and damages for each of Maritech’s claims.
I. Affidavits and Declarations
As an initial matter, both parties take issue with the other’s affidavits or
declarations submitted regarding the instant motion, contending that they
constitute improper lay opinion testimony and should be excluded.59 The parties
each filed motions to strike. At Docket 49, the Court denied Maritech’s motion to
strike, finding that Mr. Engebretsen and Mr. Stockburger each have the requisite
experience to testify as experts and declining to exclude Mr. Engebretsen’s
testimony on the basis of a financial conflict of interest. And at Docket 48, the
Court denied in part and granted in part Bay Weld’s motion, finding that Mr.
Edmondson’s and Mr. Ferroni’s opinions were permissible lay opinion testimony
with the exception of seven statements that either lack foundation or were
improperly technical or specialized.60 Thus, in ruling on the instant motion, the
Court will consider the Engebretsen and Stockburger affidavits in their entirety, as
well as the non-stricken portions of the Edmondson and Ferroni declarations.
59 Docket 29 at 15–16; Docket 36 at 3–4; see also Docket 32; Docket 35.
60 Docket 48 (excluding portions of paragraphs 25, 34, and 35 of Mr. Edmondson’s declaration
and portions of paragraphs 20, 24, 25, and 28 of Mr. Ferroni’s declaration).
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II. Maritech’s Claims
a. Breach of Contract
Maritech firsts asserts that it is entitled to summary judgment on its claim for
breach of contract.61 “Basic principles in the common law of contracts” apply when
interpreting maritime contracts.62 A court should “interpret, to the extent possible,
all the terms in a contract without rendering any of them meaningless or
superfluous.”63 “‘Contract terms are to be given their ordinary meaning,’ and
‘[w]henever possible, the plain language of the contract should be considered
first.’”64 “Only if the language is ambiguous should a court examine extrinsic
evidence and look beyond the written language of the contract.”65 A contract is
ambiguous if “reasonable people could find its terms susceptible to more than one
interpretation.”66 Summary judgment is generally only appropriate for breach of
61 See Docket 17 at 26–29; Docket 36 at 6–11.
62 Cleve Co. v. Hecny Transp., Inc., 715 F.3d 1189, 1194 (9th Cir. 2013).
63 Starrag v. Maersk, Inc., 486 F.3d 607, 616 (9th Cir. 2007) (quoting Chembulk Trading LLC v.
Chemex Ltd., 393 F.3d 550, 555 (5th Cir. 2004)).
64 Id. (quoting Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir.
1999)).
65 Tug Blarney, LLC v. Ridge Contracting, Inc., 14 F. Supp. 3d 1255, 1263 (D. Alaska 2014)
(citing Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1214 (5th Cir. 1986)).
66 Klamath Water Users Protective Ass’n, 204 F.3d at 1210.
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contract claims when “the contract or the contract provision in question is
unambiguous.”67
Here, the relevant contract is the December 3, 2018 Cost/Work Proposal
Estimate.68 Maritech contends that: (1) the disputed contract terms are
unambiguous, precluding consideration of extrinsic evidence such as Bay Weld’s
affidavits; (2) even if the contract terms are ambiguous, the extrinsic evidence
supports Maritech’s interpretation; and (3) Bay Weld’s breaches of contract caused
the Cordova allision and other vessel control issues, which resulted in the
damages discussed above.69 Bay Weld responds that the disputed terms of the
Estimate are ambiguous, requiring reference to extrinsic evidence and making
Maritech’s breach of contract claim inappropriate for resolution on summary
judgment.70
The parties primarily dispute the meanings of Items 4, 5, and 10 of the
Estimate. First, the parties dispute the meaning of “full internal inspection” in Item
4 of the Estimate, which provides that Maritech will “[u]pgrade UltraJet 340’s w/ full
67 Nw. Acceptance Corp. v. Lynwood Equip., Inc., 841 F.2d 918, 920 (9th Cir. 1988) (quoting
Nat’l Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d 95, 97 (9th Cir. 1983)).
68 See Docket 17-1 at 51–56 (Ex. 8).
69 See Docket 17 at 20–21, 26–29; Docket 36 at 7–11.
70 Docket 29 at 20–21.
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internal inspection.”71 Maritech contends that Bay Weld failed to perform such an
inspection because, per the MJP UltraJet 340 HT Service Manual, “a ‘full internal
inspection’ of the jets should have included a thorough diagnostic of the bearings
within the jet, as well as a Conditions Found Report.”72 Bay Weld disagrees,
asserting that the plain language of Item 4 does not require the “extensive list of
tasks that Maritech suggests it ‘should’ have” undertaken.73 The manufacturer
maintains that its actions—“looking for damaged or worn out components during
disassembly and reassembly and rotating the bearings to listen for any noise that
would indicate the bearings were worn, both before and during sea trials”—
constituted a “full internal inspection” based on Mr. Engebretsen’s understanding
of the contract.74
71 Docket 17-1 at 53 (Ex. 8).
72 Docket 17 at 27 (citing Docket 17-3 at 4, ¶ 10 (Ferroni Decl.)).
73 Docket 29 at 20; see also Docket 29 at 17–18 (“[W]hen it argues that the ‘full internal
inspection’ provision in Item 4 of the Estimate ‘should have’ included its laundry list of preferred
tasks, it fails to provide any support for that argument besides Ferroni’s subjective testimony. It
does not cite any provision of the Estimate that requires those tasks . . . .” (citation omitted)).
74 Docket 29 at 20 (citing Docket 30 at 4, ¶ 11 (Engebretsen Aff.)); see also Docket 30 at 4, ¶ 10
(Engebretsen Aff.) (“I included this provision because during a verbal discussion about the
project, Edmondson asked that Bay Weld ‘take a look at’ the Lightning’s jets while replacing the
impellers. I understood this provision to allow Bay Weld the discretion to inspect the jets in the
way that it determined would be most effective and efficient.”).
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Item 5 provides that Bay Weld will “[a]dd Glendinning Joystick controls w/
full electronic controls replacement and electronic steering system.”75 Maritech
contends that this provision required Bay Weld to replace the Lightning’s reverse-
thrust bucket sensors and that Bay Weld failed to do so despite bucket sensors
being “called for in the original parts list.”76 Bay Weld maintains that “electronic
controls” refers only to the control heads, not the bucket sensors, and that it
complied with this provision of Item 5 “by removing the existing Glendinning system
and installing a new, modern Glendinning system.”77
Item 5 also provides that Bay Weld’s work will include “complete controls
and steering package for two stations and complete hydraulic system w/ dual
pumps.”78 Maritech asserts that this provision required Bay Weld to replace the
Lightning’s bucket rams and hydraulic cylinders and that Bay Weld failed to do
so.79 Bay Weld disagrees, maintaining that “no provision of the Estimate required
[it] to install an entirely new hydraulic system or to perform unnecessary pressure
75 Docket 17–1 at 53 (Ex. 8).
76 Docket 17 at 28.
77 Docket 29 at 20 (citations omitted).
78 Docket 17-1 at 53 (Ex. 8).
79 Docket 17 at 13; see also Docket 36 at 9 (“Regardless of how one chooses to read the
language, Item 5 does not give Bay Weld the unreasonable right to unilaterally decide that the
components of the entire hydraulic system are satisfactory, replace nothing, inform no one, then
accept payment for work it did not do.”).
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or flow tests on the system.”80 It asserts that it complied with Item 5 by “delivering
the Lightning with a complete hydraulic system with dual pumps,” which
“functioned well upon delivery of the vessel.”81
Finally, Item 10 provides that Bay Weld will “[t]est and inspect all vessel
systems.”82 Maritech argues that Bay Weld breached this provision with regard to
the hydraulic system because it “did not perform a pressure test or a flow test, nor
did [it] perform an internal inspection of the impellers and wear plates,” and with
regard to the jet units because it “did not perform the inspection with any tools,
such as a stethoscope or feeler gauges” and did not perform further testing of the
jet bearings “under operating load.”83 Bay Weld responds that the Estimate did not
require it to inspect the jet units in the manner suggested by Maritech and did not
require it to “perform unnecessary pressure or flow tests.”84
The Court finds that the disputed provisions of the Estimate are all
ambiguous to some extent because they are susceptible to multiple interpretations.
The contract terms are sparse, and it is not clear from their plain language what
80 Docket 29 at 20–21 (citations omitted).
81 Docket 29 at 20 (citing Docket 30 at 6–7, ¶ 15 (Engebretsen Aff.)).
82 Docket 17-1 at 55 (Ex. 8).
83 Docket 17 at 27–29.
84 See Docket 29 at 20–21.
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precisely a “full” inspection entails, whether “electronic controls” include bucket
sensors, whether Item 5 allowed Bay Weld to retain the preexisting components
of the Lightning’s hydraulic system, or what tasks are necessary to “test and
inspect” all vessel systems. Thus, interpretation of the contract requires reference
to extrinsic evidence.
The extrinsic evidence is such that a reasonable factfinder could find either
party’s contract interpretation correct. In particular, the parties’ divergent
interpretations of the contract appear to stem in large part from different
assumptions about what is customary in the vessel repair and retrofit industry.
Maritech, as Bay Weld notes, primarily takes issue with Bay Weld’s decision to
integrate existing components into the Lightning’s systems and its failure to
perform all the tests and inspections that Maritech regards as standard.85 Bay
Weld, by contrast, asserts that “it is a common practice in the vessel repair industry
to retain functioning components of an existing system when installing a new
system” because doing so “increases efficiency and lowers costs for the vessel’s
owner.”86 The manufacturer maintains that “Engebretsen used the word ‘Estimate’
intentionally, to reflect the fact that vessel retrofit projects of this nature are fluid
85 See Docket 17 at 27–29.
86 Docket 29 at 21 (citing Docket 30 at 5, ¶ 12 (Engebretsen Aff.); Docket 31 at 2, ¶ 4
(Stockburger Aff.)).
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and evolve as the work is completed.”87 Interpretation of the Estimate will thus turn
on the parties’ intent and the applicable industry customs, which are both questions
to be determined by the factfinder.88 Viewing the evidence in the light most
favorable to Bay Weld, there exist multiple genuine disputes of material fact
regarding the proper interpretation of the Estimate, precluding summary judgment
on this claim.
Even assuming arguendo that Maritech’s interpretation of the disputed
provisions is the only correct interpretation and that Bay Weld did not comply with
those provisions, there are disputed facts bearing on the remaining elements of
Maritech’s breach-of-contract claim. First, the facts are clearly disputed as to the
cause of the Lightning’s allision in Cordova and other problems with the vessel.89
87 Docket 29 at 3–4 (citing Docket 30 at 3–4, ¶¶ 6–7 (Engebretsen Aff.); Docket 31 at 2, ¶ 4
(Stockburger Aff.)) (“It is a common practice in the vessel repair and retrofit industry for a repair
proposal to describe the various aspects of the work in broad terms, describing the primary
concept of the systems to be installed, while allowing the shipyard the discretion to complete the
tasks in the most effective and efficient way.”).
88 See Nat’l Union Fire Ins. Co., 701 F.2d at 97 (“[A]mbiguity in a contract raises a question of
intent, which is a question of fact precluding summary judgment.”); Konica Bus. Machs. v.
Vessel Sea-Land Consumer, 47 F.3d 314, 315 (9th Cir. 1995) (holding that genuine issue of
material fact regarding “port custom or general usage of the trade” precluded summary
judgment); see also, e.g., S.E.C. v. Dain Rauscher, Inc., 254 F.3d 852, 859 (9th Cir. 2001)
(holding summary judgment was inappropriate when there was genuine issue of material fact as
to appropriate industry standard for underwriting municipal offerings); May v. Morganelli-
Heumann & Assocs., 618 F.2d 1363, 1366 (9th Cir. 1980) (holding summary judgment was
inappropriate when there existed a genuine dispute of material fact as to the “relevant custom
and usage of the architectural profession”).
89 See Poincon v. Offshore Marine Contractors, Inc., 9 F.4th 289, 297 (5th Cir. 2021)
(“‘Questions of causation in admiralty are questions of fact,’ and they are best left to the
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Maritech theorizes that the Cordova allision was caused by Bay Weld’s improper
crimping of Deutsch connectors in the control system.90 However, the Court
agrees with Bay Weld that Maritech “merely argues that the evidence supports its
theory [regarding the alleged control system failures], not that the evidence
conclusively establishes its theory to the exclusion of others”—as required by the
summary judgment standard.91 Over a year passed between Bay Weld’s delivery
of the Lightning to Maritech and the Cordova allision—during which time Maritech
operated the Lightning and had other companies work on the vessel, including
replacing or rebuilding both bucket rams.92 Bay Weld has presented evidence that
there could have been alternate causes for the allision and broader control system
issues, including Maritech’s “failure to properly install or calibrate the bucket rams
after [it] had them replaced or rebuilt”;93 “a failure of the Glendinning software that
factfinder . . . when there is a genuine dispute.” (quoting Stolt Achievement, Ltd. v. Dredge B.E.
Lindholm, 447 F.3d 360, 367 (5th Cir. 2006))).
90 See Docket 17 at 18–20.
91 Docket 29 at 17.
92 See Docket 17 at 11–14; Docket 17-1 at 9–12, ¶¶ 18–23 (Edmondson Decl.); Docket 17-3 at
5, ¶ 12 (Ferroni Decl.); see also Docket 29 at 9 (“Maritech had significant work done on the
Lightning by another business in the fall and winter of 2019, including replacing the starboard
reduction gear, replacing the water heater, and replacing one of the hydronic heaters.”).
93 See Docket 29 at 11 (citing Docket 31 at 3–4, ¶ 7 (Stockburger Aff.)).
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operates the system, an issue that led to multiple prior control system failures”;94
or “user error by Edmondson and/or Ferroni in operating the system.”95 The
manufacturer also maintains, based on Engebretsen and Stockburger’s affidavits,
that improper field crimping of Deutsch connectors is unlikely to result in control
system failure like the one experienced by the Lightning.96 Viewing the evidence
in the light most favorable to it, Bay Weld has demonstrated multiple issues of
disputed fact that preclude summary judgment for Maritech.
Further, there remain genuine disputes of material fact regarding whether
Maritech adequately mitigated its claimed damages.97 “[A] nonbreaching party to
a contract has a duty to take reasonable steps to mitigate its damages, and its
failure to do so may prevent it from recovering damages that otherwise could have
94 Docket 29 at 23.
95 Docket 29 at 23; see also Docket 29 at 11 (citing Docket 30 at 9, ¶ 22 (Engebretsen Aff.);
Docket 31 at 4, ¶ 8 (Stockburger Aff.)).
96 Docket 29 at 12 (citing Docket 30 at 9, ¶ 24 (Engebretsen Aff.); Docket 31 at 4, ¶ 9
(Stockburger Aff.)).
97 Maritech appears to assert that Bay Weld must “carry its burden” regarding mitigation to
establish a genuine issue of material fact, stating that “[d]espite the general inferences afforded
the non-moving party when ruling on a motion for summary judgment, Bay Weld still has the
burden of proof to show that Maritech ‘failed to take reasonable measures to mitigate damages
or avoid consequences.’” Docket 36 at 15–17 (quoting State v. Rock, 380 P.3d 1084, 1087 (Or.
Ct. App. 2016)). This is incorrect; while Bay Weld would have the burden of establishing failure
to mitigate at trial, the manufacturer, as the non-moving party, need not meet this burden to
establish a genuine issue of material fact for purposes of summary judgment.
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been avoided.”98 The parties disagree regarding: (1) whether Maritech could have
safely used the Lightning to fulfill its summer 2020 contract with Alaska Galore
Tours in light of the fact that the Coast Guard did not put a hold on the vessel after
the allision;99 (2) whether Maritech acted reasonably in its attempts to contact Bay
Weld to report various issues with the Lightning’s control system and its eventual
decision to have the vessel repaired in Seward by another company rather than in
Homer by Bay Weld;100 and (3) whether Maritech could have mitigated its damages
by using another one of its vessels as a replacement for the Lightning for the
Alaska Galore Tours contract.101 These disputes all involve questions of
reasonableness, which are determinations for the trier of fact. Thus, summary
judgment is also inappropriate for Maritech’s breach-of-contract claim due to
genuine issues of material fact regarding Maritech’s damages.
b. Negligence
98 Yang Ming Marine Transp. Corp. v. Okamoto Freighters Ltd., 259 F.3d 1086, 1095 (9th Cir.
2001).
99 Compare Docket 29 at 31 (citing Docket 29-3 (Ferroni Deposition)), with Docket 36 at 17
(discussing the “danger and uncertainty associated with taking the Vessel back out on the water
to service clients”).
100 Compare Docket 29 at 30, with Docket 36 at 16 (“The Vessel lacked the endurance to travel
to Homer—given the unresolved concern over further control failures—it was best to reduce the
need to dock as much as possible.”).
101 Compare Docket 29 at 31–32, with Docket 36 at 17.
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Second, Maritech contends that it is entitled to summary judgment on its
negligence claim.102 Under maritime law, negligence claims are “determined under
general principles of maritime negligence rather than common law negligence.”103
“However, the elements for a maritime negligence cause of action are defined
similarly to the common law: a duty, a breach of the duty, proximate cause, and
damages.”104
Maritech contends that Bay Weld breached its duty of care by (1) “fail[ing]
to properly install the Glendinning control system, resulting in a dangerous
condition in which the Vessel controls were intermittently inoperable and altogether
unpredictable”; (2) “neglect[ing] to warn Maritech of its failure to install a properly
functioning heading line on the Vessel which thus crated a dangerous condition
under which to operate”; and (3) failing to disclose other defects in its work, which
caused “increased dangers” including “the faulty navigation system, the Vessel
steering only being powered by one engine, the intermittent control failures, the
worn and leaking bearings, and the outdated bucket sensors.”105 Bay Weld
102 Docket 17 at 29–33; Docket 36 at 11–12.
103 White v. Sabatino, 526 F. Supp. 2d 1143, 1156 (D. Haw. 2007) (quoting Prince v. Thomas,
25 F. Supp. 2d 1045, 1047 (N.D. Cal. 1997)).
104 Id. at 1156–57 (D. Haw. 2007) (quoting Prince, 25 F. Supp. 2d at 1047).
105 Docket 17 at 31–33.
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disputes Maritech’s characterization of the facts, contending that it properly
installed the control system and that the system “functioned well upon delivery” in
June 2019.106 Bay Weld also maintains that Engebretsen warned Edmondson that
the heading line was not functioning properly during the sea trial of the Lightning,
asserting that “Engebretsen and Edmondson discussed this issue . . . prior to Bay
Weld’s delivery of the Lightning and Engebretsen advised Edmondson about
possible next steps in resolving that issue.”107
In addition to the parties’ dispute regarding whether Bay Weld warned
Maritech of the heading line issue, there are multiple issues of fact—as discussed
in the section above—relating to the scope of the contract, which may bear on Bay
Weld’s duty of care. Further, the aforementioned factual disputes regarding
causation are relevant to Maritech’s negligence claim as well. Though Maritech
asserts that Bay Weld’s allegedly negligent installation of the Glendinning control
system “was more likely than not the cause of the Vessel’s intermittent control
failures, resulting in the allision,”108 that is not the proper standard for summary
judgment. Here, there are multiple potential alternate causes of the control
failures, and the parties dispute whether improper crimping can cause such a
106 Docket 29 at 23.
107 Docket 29 at 8 (citing Docket 30 at 7–8, ¶ 17 (Engebretsen Aff.)).
108 Docket 17 at 31.
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failure. Finally, there remain genuine issues of fact regarding Maritech’s mitigation
of damages, as discussed above. Thus, viewing the evidence in the light most
favorable to Bay Weld, there exist multiple genuine disputes of fact bearing on
Maritech’s negligence claim, making summary judgment on that claim
inappropriate.
c. Breach of Implied Warranty of Workmanlike Performance
Third, Maritech asserts that it is entitled to summary judgment on its claim
for breach of the implied warranty of workmanlike performance.109 Maritime
contracts “involving the rendering of services include[] the implied promise to
perform those services with reasonable care, skill and safety.”110 This implied
warranty “is a ground for liability where a contractor chooses equipment for a
specific purpose that is defective or unsafe.”111 To succeed on a claim for breach
of the implied warranty of workmanlike performance, a plaintiff must show it
suffered damages as a result of the contractor’s failure to use “the degree of
diligence, attention, and skill adequate to complete the task.”112
109 Docket 17 at 33–36; Docket 36 at 12–13.
110 Tidewater Barge Lines, Inc., Case No. 03-CV-1225-ST, 2005 WL 8177086, at *5 (D. Or. Nov.
30, 2005); see also H & H Ship Serv. Co. v. Weyerhaeuser Line, 382 F.2d 711, 712 (9th Cir.
1967).
111 Prowler, LLC v. York Int’l Corp., Case No. C06-660JLR, 2007 WL 2363046, at *5 (W.D.
Wash. Aug. 14, 2007).
112 Id.
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Maritech contends that Bay Weld breached the implied warranty of
workmanlike performance by improperly installing the vessel control system and
navigation system.113 Bay Weld responds that it did its work with “the degree of
diligence, attention, and skill adequate to complete the task.”114 Regarding the
control system, Bay Weld again maintains that it “properly installed and thoroughly
tested the control system prior to delivery,” that “the system functioned well upon
delivery,” and that “the evidence does not support Maritech’s theory that Bay
Weld’s field crimping of the Glendinning system’s cables caused the alleged
control system failure in Cordova.”115 Further, Bay Weld contends that the
navigation system’s autopilot and “dodge” features “functioned properly upon
delivery” and that Mr. Edmondson knowingly accepted delivery of the Lightning
after Mr. Engebretsen informed him that the heading line was not functioning
correctly.116
113 See Docket 17 at 34–35.
114 Docket 29 at 26.
115 Docket 29 at 26 (citing Docket 30 at 6–8, ¶¶ 15–16, 18 (Engebretsen Aff.)); Docket 31 at 3,
¶ 5 (Stockburger Aff.)).
116 Docket 29 at 27 (citing Docket 30 at 7–8, ¶¶ 17–18 (Engebretsen Aff.)).
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There are disputed facts as to whether Bay Weld’s work was substandard,117
and even assuming Bay Weld’s work was substandard, the disputed facts
regarding causation discussed above also preclude summary judgment on liability
for this claim. Moreover, the aforementioned issues of fact concerning Maritech’s
mitigation of damages also make summary judgment on this claim
inappropriate.118
d. UTPA Claim
Fourth and finally, Maritech asserts that it is entitled to summary judgment
on its Unfair Trade Practices Act (“UTPA”) Claim.119 The UTPA prohibits “[u]nfair
methods of competition and unfair or deceptive acts or practices in the conduct of
trade or commerce.”120 The Act defines unfair trade practices to include
“representing that goods or services are of a particular standard, quality, or grade,
or that goods are of a particular style or model, if they are of another.”121 Maritech
117 Compare Docket 17 at 19 (citing Docket 17-3 at 11–13, ¶ 27–31 (Ferroni Decl.)), with Docket
29 at 26 (citing Docket 30 at 6–7, ¶¶ 15–16 (Engebretsen Aff.); Docket 31 at 3, ¶ 5 (Stockburger
Aff.)).
118 The parties also dispute whether the East River doctrine applies to preclude Maritech from
recovering economic damages for its negligence or warranty claims, but the Court need not
resolve that issue at this juncture. See Docket 29 at 32; Docket 36 at 18–21; E. River S.S.
Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986).
119 Docket 17 at 36–39; Docket 36 at 13–14.
120 AS § 45.50.471(a).
121 AS § 45.50.471(b)(6); Docket 17 at 36.
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contends that Bay Weld violated the UTPA in this manner because it “knowingly
includ[ed] language in the agreement that conveyed to Maritech services and
Vessel components in a quality and grade that Bay Weld did not intend to fulfill,”
including “indicat[ing] that all components of various features would be replaced”
when in reality Bay Weld re-used some old components.122
Bay Weld responds that the disputed provisions of the Estimate did not
“require replacement of all components of every system, regardless of their
condition or functionality.”123 The manufacturer contends that “Maritech’s
subjective expectation [regarding the Estimate] is patently unreasonable,
economically unfeasible, and [] unsupported by the Estimate itself.”124 It notes that
“Maritech relies solely on the language in the Estimate to support its claim under
45.50.471(b)(6), but ignores the extensive discussions between Edmondson and
Engebretsen about the scope of the project,” asserting that, “[b]ased on those
discussions, [as] well as the Estimate itself, Edmondson knew or should have
known that Bay Weld agreed to install and integrate new systems in the Lightning
rather than replace every component of those systems.”125
122 Docket 17 at 37 (citing AS § 45.50.471(b)(6)).
123 Docket 29 at 29.
124 Docket 29 at 29.
125 Docket 29 at 29 (citing Docket 30 at 3, ¶¶ 5–6 (Engebretsen Aff.)).
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As discussed above, there exist multiple disputed facts regarding the
customary practices in the vessel repair and retrofit industry, which bear on
whether Bay Weld’s communications with Maritech, including the Estimate,
constituted misrepresentations. The Court therefore finds that summary judgment
is not appropriate on Maritech’s UTPA claim.
CONCLUSION
Viewing the evidence in the light most favorable to Bay Weld, there exist
multiple genuine issues of fact regarding liability and damages for Maritech’s
claims, precluding summary judgment. Maritech’s Motion for Summary Judgment
at Docket 17 is DENIED.
DATED this 23rd day of March, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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