to be addressed at the ship's next port of call. See id Visa No. 7.
Hours after departing New Orleans on June 1, 1992, Pacific Dawn was forced to cast anchor due to smoke in the engine room. See id., Ex. B at 167-68, 191-95; Ex. C at 37-39; Corrigan Aff., Ex. 5, Extracts from Ship's Deck Log at 18. Repairs were made to the ship between June 1 and June 4, 1992 by the crew and American Diesel, an independent ship repair company. See Hammond Aff., Ex. B, Sekachev Deposition ("Sekachev Dep.") at 168, 200-03, 324; Ex. C, Pavlov Deposition ("Pavlov Dep.") at 37-39; Corrigan Aff., Ex. 5, at 18-19. Bureau Veritas was neither invited to attend or survey the repairs, nor even advised of these repairs until after the vessel was later towed back to New York, see Hammond Aff., Ex. E, Webster Deposition ("Webster Dep.") at 166, notwithstanding the fact that Pacific Dawn's chief engineer characterized the services as "major repairs." See Sekachev Dep. at 324. On June 3, 1992, plaintiffs hired an independent company, South Marine Limited, to survey Pacific Dawn. See Crotty Aff., P 3, Ex. B.
On June 15, 1992, the main engine stopped because of fires in its scavenge spaces. See Hammond Aff., Ex. B at 271-72, 285-86. The engine could not be restarted, purportedly because the portside generator had developed problems. See id. at 287-90. The ship was unable to continue its journey and therefore, was towed to New York on June 22, 1992. See Def. 3(g) Stmt., PP 42-43; Plaintiffs' Statement of Disputed Facts Pursuant to Local Rule 3(h), R.D. # 21 ("Plaintiffs' 3(h) Stmt."), PP 42-43. On August 21, 1992, Bureau Veritas suspended class for Pacific Dawn retroactive to June 1, 1992. See Corrigan Aff., Ex. 12.
Plaintiffs bring this civil and admiralty action asserting that Bureau Veritas, by classifying Pacific Dawn, owed plaintiffs a duty to ensure the seaworthiness of Pacific Dawn and breached that duty by failing to revoke classification and by making certain misrepresentations. For the reasons that follow, Bureau Veritas' motion for summary judgment dismissing the complaint must be granted.
In the first and second causes of action, plaintiffs claim that by classifying Pacific Dawn, Bureau Veritas warranted Pacific Dawn's seaworthiness. It is well-established that a classification society is not liable to a shipowner as an insurer of the seaworthiness of a vessel. See Sundance Cruises v. Am. Bureau of Shipping, 7 F.3d 1077 (2d Cir. 1993); Great Am. Ins. Co. v. Bureau Veritas, 338 F. Supp. 999, 1012 (S.D.N.Y. 1972), aff'd, 478 F.2d 235 (2d Cir. 1973), cert. denied, 511 U.S. 1018, 128 L. Ed. 2d 72, 114 S. Ct. 1399 (1994). To deem a classification society as a warrantor of a vessel's seaworthiness would create a liability which is not commensurate with a classification society's limited control over a vessel, the intent of the parties, the fees charged for classification or the services performed. See Great American, 338 F. Supp. at 1012. The same rationale compels the conclusion that, by classifying a vessel, a classification society is also not liable as an insurer of a vessel's seaworthiness to third party cargo owners, such as plaintiffs. See Continental Ins. Co. v. Daewoo Shipbuilding & Heavy Mach. Ltd., 707 F. Supp. 123, 124 (S.D.N.Y. 1988), aff'd, 888 F.2d 125 (2d Cir. 1989).
Therefore, plaintiffs' first and second causes of action must be dismissed.
In the remaining two causes of action, plaintiffs claim that, by negligently inspecting the vessel and failing to revoke its class, Bureau Veritas negligently misrepresented that the Pacific Dawn was fit for sail. Where, as here, plaintiffs are third party cargo owners who claim to have been injured by relying upon a ship's classification certificates, a cause of action may exist for negligent misrepresentation. However, plaintiffs cannot recover on a claim of negligent misrepresentation unless they establish that they actually and reasonably relied on the certificates issued by Bureau Veritas. See Sundance, 7 F.3d at 1084; see also Glanzer v. Shepard 233 N.Y. 236, 135 N.E. 275 (1922); Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931). Specifically, plaintiffs must show that Bureau Veritas
(1) at [the] plaintiff[s'] request supplied information for [their] guidance; (2) failed to use reasonable care in so doing; (3) knew plaintiff[s] would rely on the information for particular purposes; and (4) plaintiff[s] suffered an economic loss because [they] relied on the information.
Sundance Cruises Corp. v. Am. Bureau of Shipping, 799 F. Supp. 363, 382 (S.D.N.Y. 1992), aff'd, 7 F.3d 1077 (2d Cir. 1993).
However, plaintiffs cannot establish that they actually relied on Bureau Veritas' classification of the Pacific Dawn. The record is devoid of any evidence that plaintiffs even consulted Bureau Veritas' Register classifying the Pacific Dawn.
Moreover, since plaintiffs hired their own independent surveyor, South Marine Limited, to survey Pacific Dawn one week after Bureau Veritas last surveyed the ship, no inference can reasonably be drawn that plaintiffs relied on Bureau Veritas' survey. This is especially true since South Marine survey was performed after the ship had undergone major repairs between June 1 and June 4, 1992, prior to its departure from the Mississippi River. See Crotty Aff. P 3; Ex. B; Sekachev Dep., at 167-68, 192-95, 200-03, 324. Moreover, Bureau Veritas was not even aware of the major repairs performed on Pacific Dawn until after the ship was towed to New York, see Webster Dep. at 166, and thus cannot have willfully or negligently failed to represent this fact of which it was concededly unaware.
Nor could any reliance by plaintiffs on Pacific Dawn's listing on the Bureau Veritas Register as a representation of the ship's current class status have been reasonable even assuming, arguendo, that such reliance occurred. The Bureau Veritas Register does not reflect whether Bureau Veritas has suspended a ship's class but only a ship's condition at the time of the survey. See Hammond Aff., Ex. A, § 2.17.18. Had they wanted to ascertain the current status of the Pacific Dawn, plaintiffs could have requested specific information survey called an "attestation of class." See Crotty Aff., Ex. A, Art. 2.2; Hammond Aff., Ex. A § 2.17 n.2; Whitehorse Marine Inc. v. Great Lakes Dredge & Dock Co., 751 F. Supp. 106, 109 (E.D. Va. 1990).
However, prior to loading the cargo aboard, plaintiffs failed to request an attestation of class, assurance that its certificates were free and clear of recommendations for repairs, or any other information from Bureau Veritas concerning the current status of Pacific Dawn.
Even if plaintiffs had requested such an attestation, Bureau Veritas would have been unable to certify that all survey items were current because the most recent visa had expired prior to the date plaintiffs loaded their cargo aboard Pacific Dawn. At the time plaintiffs' cargo was loaded aboard Pacific Dawn, on or about April 14 through April 17, 1992 in New Orleans, the ship's classification Visa No. 5 had extended the overdue continuous survey items and repair of portside generator items only until April 7, 1992 and thus it had expired no later than when the vessel arrived in New Orleans.
Moreover, several of the vessel's statutory certificates, including the safety construction certificate, had expired on April 10, 1992. See Hammond Aff., Ex. L at 1208. It is clear, therefore, that plaintiffs cannot demonstrate that Bureau Veritas "knew plaintiff would rely on the information for particular purposes[.]" Sundance, 799 F. Supp. at 382. Indeed, "there is not ... a scintilla of evidence ... that plaintiff[s] had asked defendant to provide [them] with any information for [their] guidance." Id. It follows that plaintiffs claim for negligent misrepresentation must be dismissed.
For the reasons stated above, summary judgment for defendants is granted. The Clerk of Court is directed to enter such judgment and close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
October 18, 1995
John E. Sprizzo
United States District Judge