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June 20, 2001


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 motion.

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.

In an opinion and order dated February 16, 2001, this Court applied the Pennsylvania rule and held Mitlof liable for Conservator's capsizing. See Smith v. Mitlof, 130 F. Supp.2d 578, 583 (S.D.N.Y. 2001) ("Smith I"). Mitlof appealed that decision to the Second Circuit Court of Appeals on March 13, 2001.*fn3 On June 6, 2001, that Court dismissed the appeal for lack of jurisdiction in the absence of a final order. Norwalk Maritime now moves for summary judgment, seeking dismissal of all of Mitlof's claims. For the reasons stated below, Norwalk Maritime's motion is granted in part and denied in part.


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 newsletter:

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 ...

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