storage racks or on land is not on navigable waters and have refused to exercise supplemental jurisdiction over those related-tort claims is also incorrect. See Commercial Union, 1996 WL 191960, at *5 n. 2 (exercising supplemental jurisdiction-post-Sisson-over a negligent claim arising from fire damage to a boat stored on land). Accordingly, the Court will exercise supplemental jurisdiction over the remaining tort claims.
B. Motion to Dismiss
In a motion to dismiss for failure to state a claim, a district court should dismiss the complaint pursuant to Rule 12(b)(6) only if it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999). A district court must confine its consideration "to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999). A district court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Koppel v. 4987 Corp., 167 F.3d 125, 128 (2d Cir. 1999). The issue to consider is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support her claims. See Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995). Indeed, it is not a district court's function to weigh the evidence that might be presented at trial; instead, a district court must merely determine whether the complaint itself is legally sufficient. See id.
1. The Disclaimer Agreement
In this case, Blue Water argues that its license agreements with Cantamessa and Durso disclaimed liability for its own negligence. Blue Water further argues that the complaint only alleges acts of negligence and therefore it must be dismissed with prejudice. In response, the plaintiffs contend that the license agreements fail to expressly and unequivocally disclaim liability for Blue Water's own negligence as required under New York and general maritime law.
The threshold issue that the Court must decide is what law governs this case-New York State or general maritime. Neither party briefed this issue. Blue Water simply assumes that New York law governs, while the plaintiffs for the most part assume that New York law governs but note that general maritime as a potential governing law.
The Court will apply New York law for the following reasons. First, it is undisputed that the laws of New York State and general maritime provide the only potential sources of law in this case. Also, the litigants each come from New York and the damage to the boats occurred here, and jurisdiction is based on general maritime law. Second, the New York and general maritime laws are not in conflict on the issue of the enforceability of disclaimer agreements. See Miller v. Bombardier, Inc., 872 F. Supp. 114, 117 (S.D.N.Y. 1995) ("[T]he first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the law of the jurisdictions involved."). Under general maritime and New York law, courts must give effect to a disclaimer agreement relieving a party of its own negligence when it is clear and unequivocal. Compare Edward Leasing Corp. v. Uhlig & Assoc., Inc., 785 F.2d 877, 889 (11th Cir. 1986) (stating that a negligent disclaimer agreement must be clear and unequivocal to be enforced under general maritime law) with Lago v. Krollage, 78 N.Y.2d 95, 99, 571 N.Y.S.2d 689, 692 (N.Y. 1991) (disclaiming one's liability for her own negligence, though disfavored by New York law and closely scrutinized by courts, is generally enforced where the exculpatory agreement is stated in unequivocal terms).
Third, the parties' assumption in their briefs that New York law governs constitutes implied consent to its application to the merits of this case. See Santalucia v. Sebright Transp., Inc., 232 F.3d 293, 296 (2d Cir. 2000) ("The parties' briefs assume that New York law controls this dispute, and such implied consent . . . is sufficient to establish choice of law.") (internal quotation marks and citations omitted). For these reasons, the Court will apply New York law.
When there is no contravening public policy, an exculpatory provision in a contract, disclaiming one of the party' liability for its own negligence, though disfavored by New York law and closely scrutinized by courts, is generally enforced. Lago, 78 N.Y.2d at 99, 571 N.Y.S.2d at 693 (citing Gross v. Sweet, 49 N.Y.2d 102, 424 N.Y.S.2d 365 (N.Y. 1979)). Where the exculpatory agreement states in unequivocal terms the intention of the parties to relieve a defendant of her liability for negligence, the agreement will be enforced. Id. However, the agreement will not be enforced where it purports to exempt liability for willful or grossly negligent acts or where a special relationship exists between the parties so that an overriding public interest renders the exculpatory clause unenforceable. Id.
The agreements at issue in this case provide in pertinent part:
Licensee expressly acknowledges that Licensor shall
not be liable to Licensee or any guest, invitee,
employee or lienholder for any loss, injury or damage
to Licensee's boat, personal property of Licensee or
any guest, invitee, employee or lienholder or personal
injury thereon, irrespective of how the same is
caused, unless the same results from Licensor's
willful misconduct or gross negligence and in such
event Licensor's liability for property damage and
personal injury is expressly limited to the sum of
License Agreement ¶ 3.
The Court finds that the above disclaimer does not state unequivocally that Blue Water is relieved of its own negligence. First, the disclaimer does not expressly state that Blue Water is relieved of its own negligence. But cf. Scrivener v. Sky's The Limit, Inc., 68 F. Supp.2d 277, 280 (S.D.N.Y. 1999) (finding agreement clearly expressed parties' intentions to relieve the defendant from liability for its own negligent conduct-"[the plaintiff expressly] releases the Released Parties from any and all liabilities . . . arising out of participation in parachuting and skydiving activities, including but not limited to, losses, claims or liabilities caused by the PASSIVE OR ACTIVE NEGLIGENCE of the released parties.") (emphasis in original); Uribe v. Merch. Bank of N.Y., 91 N.Y.2d 336, 338-42, 670 N.Y.S.2d 393, 394-97 (N.Y. 1998) (agreement, which provided "[r]enters expressly waive every presumption of law that loss shall have occurred through Bank's negligence," held enforceable); Lago, 78 N.Y.2d at 98-101, 571 N.Y.S.2d at 691-93 (enforcing agreement disclaiming the defendants' liability in a NASCAR race, which expressly stated that the defendant was relieved from any negligence).
Second, although a disclaimer need not contain the word "negligence" to be enforced, where, as here, it does not convey a similar import, it is unenforceable. See Gross, 49 N.Y.2d at 108, 424 N.Y.S.2d at 368 (citations omitted). The instant agreement contains no language that conveys a similar meaning to disclaim negligence without using that word, such as that Blue Water is not responsible for damages caused by its own fault or when it fails to use reasonable care. It simply states that Blue Water is not liable for damages to the boats "irrespective of how the same is caused" and then goes on the limit Blue Water's liability to $1,000 for willful misconduct or gross negligence. In order for Blue Water to effectively disclaim liability for its own negligence, it should have directly said so or used similar language that imports a disclaimer for its own negligence.
Third, the licensees who enter into these agreements with Blue Water may not be sophisticated businessmen. Uribe, 91 N.Y.2d at 341, 693 N.Y.S.2d at 396 (noting that the intentions of the parties is determined by the level of sophistication and acumen of the particular parties). The licensees are individuals who wish to winterize and store their boats at the marina. As such, Blue Water must state precisely and in plain language any disclaimer on its exposure to negligence claims.
Because ambiguities must be construed against the drafter of the disclaimer agreement, the Court is unable to enforce the instant disclaimer. See Uribe, 91 N.Y.2d at 341, 693 N.Y.S.2d at 396 (stating that ambiguities are construed against the drafter). Blue Water's failure to state plainly and precisely that its limit of liability extends to its own negligence renders the purported disclaimer unenforceable with regard to the claims in this case. Accordingly, the Court will not enforce the purported disclaimer.
Finally, the $1,000 limitation of liability on Blue Water's acts that constitute willful misconduct or gross negligent is unenforceable. See Gross, 49 N.Y.2d at 107, 424 N.Y.S.2d at 368 (stating that agreements which purport to limit liability for willful or gross misconduct are unenforceable).
Based upon the foregoing, it is hereby
ORDERED, that the motions by the defendants to dismiss the complaint for lack of subject matter jurisdiction are DENIED; and it is further
ORDERED, that the motion by the defendant Blue Water to dismiss the complaint for failure to state a claim upon within relief can be granted is DENIED.
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