The opinion of the court was delivered by: William C. Conner, Senior District Judge.
In this personal injury action, third-party defendant Maritime
Aquarium at Norwalk ("Norwalk Maritime" or "NM") moves for
summary judgment pursuant to FED. R. CIV. P. 56 against
defendant/third-party plaintiff Joseph Mitlof, individually and
d/b/a: Hudson Valley Waterways, Tappan Zee Water Taxi and Tours,
Tarrytown Water Taxi and Nyack Water Taxi. Plaintiffs Nancy Lee
Smith, Joshua Osborne, Jonathan Osborne, Thomas Osborne, Kevin
McGinn, Erin McGinn, Connor McGinn, Rebecca McGinn, Dawn Hackett,
Joseph Pecoraro, Linda Pecoraro and Michael Hurewitz, passengers
aboard Mitlof's pontoon boat, Conservator, who were injured
when it capsized, join Mitlof in opposing Norwalk Maritime's
Plaintiffs brought the instant suit in October 1999,*fn1
alleging that the boat sank due to the negligence of Mitlof and
Daniel Sheehan;*fn2 plaintiffs then moved for summary judgment
as to Mitlof's liability. On August 16, 2000, after plaintiffs'
summary judgment motion was fully submitted, Mitlof sued Norwalk
Maritime — from whom Mitlof purchased Conservator — alleging,
inter alia, that Norwalk Maritime misrepresented the boat's
seaworthiness to Mitlof at the time of sale and seeking
indemnification or contribution from Norwalk Maritime for any
damages resulting from the accident.
Mitlof operated a charter and water taxi service on the Hudson
River serving Tarrytown, Nyack and Pierpont, New York. On August
23, 1998, Mitlof's pontoon boat Conservator left Nyack carrying
27 passengers and 2 crewmen, and capsized north of the Tappan Zee
Bridge. All persons on board were sent into the water, and one
passenger was trapped and drowned. The United States Coast Guard
("USCG") investigated the accident, conducted a formal hearing on
August 26 and 28, 1998, and issued two marine casualty reports.
Mitlof and Sheehan invoked their Fifth Amendment privilege
against self-incrimination and refused to testify at the hearing.
The following events led up to the accident.
Conservator was built in 1970 and underwent unspecified
"major repairs" in 1983. (See Pls. Mem. Opp. Summ. J., Ex. C.)
Its owner prior to Norwalk Maritime, the Saugatuck Valley Audubon
Society ("Saugatuck"), submitted the boat for a certificate of
inspection ("COI") from the USCG on March 23, 1990. Conservator
failed its hull integrity test, but the USCG stated that
[t]he requested area of operation is the Norwalk
Harbor Area to include the Norwalk Islands not more
than one nautical mile from shore. As [is] noted . .
. the vessel has been operating on the above route
for approximately the past 20 years. If you can
provide acceptable documentation of the past five
years of operation then the structural adequacy of
the hull will be considered acceptable.
(Id., Ex. A at 1.) Saugatuck provided this information to the
USCG by letter dated May 16, 1990. (See id., Ex. C.) The USCG
also stated that "[t]he inherent stability of this design [a
3-pontoon boat] and the limited route requested does not warrant
a stability test. This exemption only [sic] while the vessel is
operating on the route specified [i.e., the Norwalk Harbor
Area]." (Id., Ex. A at 3.)*fn5 Saugatuck donated Conservator
to Norwalk Maritime in or around September 1990.
Norwalk Maritime received its last COI from the USCG on May 21,
1997.*fn6 The USCG performed "credit drydock [sic] and internal
structural exams" of the boat, authorized Norwalk Maritime to
operate Conservator in the "Norwalk, Connecticut Harbor Area,
not more than one (1) mile from shore, on voyages not to exceed
thirty (30) minutes in duration," and allowed a maximum of 21
persons on board. (See NM Rule 56.1 Stmt., Ex. E.) The COI
mistakenly states that Conservator was built in 1990, makes no
mention of a stability test or the boat's overall stability, and
lists an expiration date of May 2000. (See id.)
On September 3, 1997, Norwalk Maritime also had Conservator
inspected by an independent marine inspector, Precision Marine
Services ("Precision"). Precision inspected the boat both
"afloat" and "hauled," but did not conduct a "sea trial" on it.
(See NM Rule 56.1 Stmt., Ex. G at 1.) Its report states that
Conservator's hull was in "good" condition, and that the "three
fiberglass pontoons [are] well maintained with no damage
sighted." (Id.) Precision's report also states that the "hulls
[were] tested for osmosis and inspected for damage and found to
be sound." (Id. at 4.) Precision's "overall risk evaluation"
found the boat "good for coastal 1 mile limit operation." (Id.)
It is unclear from the evidence submitted whether Norwalk
Maritime informed either the USCG or Precision that one of
Conservator's pontoons had taken on water. After the Precision
inspection, Conservator was dry docked until sold.
Sometime later, Norwalk Maritime decided to sell Conservator
and ran the following classified advertisement in a boating
26' × 12" TRI-HULL 3 PONTOON Flat deck, current
C.O.I., USCG 20 1 passengers with twin 40 HP Yamaha
outboards only 50 hrs., center helm, excellent
condition. Asking $15,000.
(Id., Ex. H.) On April 18, 1998, Mitlof met with Mike Pinto,
captain of the boat, to discuss purchasing it. Pinto gave Mitlof
a copy of the COI and the boat's registration, and Mitlof left a
deposit. (See id., Ex. I.) Two days later, Mitlof sent a note
containing a letter to Jack Schneider, a Norwalk Maritime
biologist who oversaw the educational program, indicating that
Mitlof intended to use Conservator to conduct river tours ...