Warford v. Industrial Power Systems

2008 DNH 192

Opinion

Warford v. Industrial Power Systems CV-06-463-JL 10/20/08 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Douglas Warford, Isabelle Tavlor, LLC, and CNA Insurance Company

v. Civil No. 06-cv-463-JL Opinion No. 2008 DNH 192 Industrial Power Systems, Inc. and A.F. Theriault & Son Ltd.

FINDINGS OF FACT AND RULINGS OF LAW

The plaintiffs, Douglas Warford, Isabelle Taylor, LLC ("the

shipowner"), and CNA Insurance Company, proceeding as Warford's

assignee and the shipowner's subrogee, seek recovery for personal

injury and property damage arising out of an explosion and fire

on the shipowner's fishing vessel, the F/V Isabelle Taylor,

insured by CNA. The defendants. Industrial Power Systems ("IPS")

and A.F. Theriault & Son Ltd. ("Theriault"), have denied any

liability. The court, which has jurisdiction under 28 U.S.C.

§ 1333(1) (maritime), conducted a bench trial in this matter over

May 21-23 and May 26-27, 2008.

Each of the parties submitted a set of proposed findings and

rulings both before and after trial; the parties also submitted a

joint post-trial statement of agreed upon facts and timeline of

significant events. With the assistance of these materials, the court makes the following findings of fact and rulings of law,

see Fed. R. Civ. P. 52(a), which result in the entry of judgment

for the defendants on all claims.

Findings of Fact

1. The shipowner entered into contracts with a number of

companies to work on converting the Isabelle Taylor into a mid­

water pair trawler capable of refrigerating her catch at sea,

enabling her use in a "pair trawling" operation with two other

vessels. The conversion work included installing a refrigeration

system and upgrading the vessel's electrical system.

2. This work entailed the installation of three new

electrical generators, to run the refrigeration system and to

provide an auxiliary power supply for the vessel. These

generators, manufactured by Caterpillar, Inc., were to be

supplied by Southworth Milton, an authorized Caterpillar dealer,

and to be installed by defendant Theriault while the vessel was

at Theriault's shipyard in Meleghan River, Nova Scotia, where she

was delivered in April 2003.

3. The shipowner (together with its parent company,

Shafmaster Fleet Services) entered into a written contract with

Theriault specifying the scope of its work on the conversion

project. In relevant part, this contract provided that Theriault

2 would "[i]nstall 2 main engines, 3 gen[erator] sets, and

hydraulic power engine, in cooperation with Caterpillar . . . .

[C]onnect generators to ship's switchboard." Theriault was also

responsible for converting the ship's electrical system--but not

the generators themselves--from 220 volts to 480 volts.

4. The ship's switchboard was to be designed and installed

by another contractor, defendant IPS, which entered into an

agreement to that effect with the shipowner. IPS agreed, in

relevant part, to "convert the vessel's switchboard to

paralleling ability and to convert the ship to 480" volts. (The

term "paralleling" refers to the proportional sharing of an

electrical load among multiple power sources, in this case, the

generators.) Theriault also agreed in its contract with the

shipowner to provide "[s]upport and assistance to IPS

technician(s) to convert switchboard to paralleling ability."

5. Theriault began its work converting the vessel in early

April 2003. Plaintiff Warford was on board the vessel for most

of this process, supporting the various contractors working on

the conversion. Though Warford has no formal education or

training in electrical engineering, he had worked on a number of

fishing vessels, including the Isabelle Taylor, as the "ship's

engineer," making him responsible for, among other things, the

3 continued and safe operation of the vessel's electrical system

during her voyages.

6. Theriault duly brought the new generators aboard the

Isabelle Taylor by cutting open her decks and securing them to

her structure. While connecting one of the generators--generato

no. 2--to the ship's wiring, however, an electrician working for

Theriault noticed that two of the lead wires necessary to make

that connection had been mislabeled. In response, a

representative from Theriault contacted Southworth Milton, which

arranged for another Caterpillar dealer, Atlantic Tractor, to

send a technician to fix the problem. Theriault explained that

it proceeded in this fashion so as not to risk voiding the

warranty on the generator. Atlantic Tractor's technician

eventually arrived and rewired the generator.

7. Atlantic Tractor's technician also performed "start-up

testing on the generators after they had been installed. As

Atlantic Tractor informed the shipowner, however, this testing

could not verify that the generators would perform properly unde

a full electrical load, including the demands of the new

refrigeration system. Atlantic Tractor further informed the

shipowner that enabling the generators to run properly under a

full load would require making adjustments to their voltage

regulators, components which essentially control the generators' output. Specifically, in an e-mail to Nick Jenkins, Shafmaster's

fleet operations manager, Atlantic Tractor's representative

indicated that Caterpillar would "be aboard for sea trials, when

we can run the [refrigeration] gear, circ[ulation] pumps, etc.,

etc., so I don't see any need for a return visit by" IPS.

8. Don Edwards, a service technician for IPS, was on board

the vessel for two weeks in October 2003, at work installing the

switchboard designed by the company. Though Edwards had planned

on "fine tuning" the voltage regulators as part of this work, the

vessel could not yet produce the electrical loads necessary to

complete that process, due principally to the fact that the new

refrigeration system had yet to be installed. Edwards had also

discovered that the regulators that came with the generators were

not all made by the same manufacturer, which he believed would

result in operational problems. He communicated this belief to

both Southworth-Milton and the shipowner; Southworth-Milton told

Edwards, in response, that the regulators should work fine

together. Ultimately, Edwards asked Southworth-Milton to send a

technician to set up the voltage regulators, but this request

went unanswered. Edwards was unable to finish installing the

switchboard during this period because he lacked certain

components that had yet to be supplied by the shipowner.

5 9. Despite the incomplete nature of this and other aspects

of the conversion project, the shipowner elected to remove the

vessel from Theriault's shipyard on December 13, 2003. In a

contemporaneous "Borrower and Shipyard Certificate" executed by

the shipowner and Theriault, the shipowner acknowledged that the

vessel was "complete," except for the electrical panel,

refrigeration, electronics, and the fishing deck layout, which

were the responsibility of contractors other than Theriault.

10. The vessel was returned to her home port of Newington,

New Hampshire. While the generators were operable under the

relatively small loads necessitated by this journey, the

generators could not yet be paralleled, as Edwards informed

Warford before he set out for Newington. This meant that the

vessel was not ready for fishing, because the load demanded by

the refrigeration system--which was not yet installed, in any

event--required at least two generators running in parallel.

Warford did not notice any problems with the generators during

the voyage from Nova Scotia to Newington.

11. After the vessel returned, Edwards resumed his work on

installing the switchboard until December 20, 2003. On that day,

he and Warford worked together to parallel the generators,

succeeding in getting them to share a load of 200 kilowatts. The

men agreed, in fact, that "load sharing [was] fine," according to

6 Edwards's contemporaneous field note; Warford testified at trial

that Edwards also said that the generators should continue to

parallel correctly even after adding the load from the

refrigeration system, which had still not yet been installed.

Warford also testified, however, that he could not remember

whether Edwards also told him that, to ensure proper operation of

the generators. Caterpillar needed to adjust their regulators.

12. The switchboard that IPS installed aboard the vessel

consisted of a metal cabinet, which housed, among other

components, rows of fuse blocks. These could be accessed by

swinging open the cabinet door, which itself contained a number

of gauges, indicator lights, and dials, including dials for

adjusting the speed and voltage of the regulators. Due to an

overhead obstruction, however, the cabinet door could be opened

only forty-five degrees without forcing it.

13. Before Edwards left the vessel, he and Warford reviewed

the procedure for paralleling the generators, which involved

making manual adjustments to their voltage and frequency using

the controls on the outside cover of the switchboard. To ensure

that the readings on the gauges accompanying these controls were

correct, Edwards used a handheld electrical meter--known, by the

name of its manufacturer, as a "Fluke meter"--to measure the

voltage and the frequency of each generator at a fuse inside the

7 switchboard. This required Edwards to open the cover of the

switchboard to place one of the alligator clips from the meter

onto one of the fuse blocks associated with that generator. Each

fuse block had metal tabs, both above and below the fuse, where a

clip could be attached; this configuration is the hallmark of an

"open" fuse block. Edwards clipped his meter below the fuse,

interposing it between the power source and the clip to protect

himself in case of a possible short circuit. After placing the

clip, Edwards took a reading of the voltage or the frequency

there before partially closing the cover to adjust the controls

until the meter indicated the appropriate levels. Warford

observed Edwards carrying out this procedure multiple times.

14. On January 15, 2004, Warford was aboard the vessel

attempting to run the generators in parallel to provide the

necessary power for charging the refrigeration system, which had

since been installed. One of the generators, however, kept

shutting down during this process, leading Warford to call

Edwards for advice. Edwards asked Warford whether Caterpillar

had adjusted the voltage regulators yet; in response, Warford

said that work had not yet been done. Edwards then told Warford

to follow the procedure they had used in successfully paralleling

the generators in December: start one generator, adjust it to

the required voltage and frequency, place it on-line (i.e., send its output to the switchboard), then repeat the process with the

other generators, setting them to the same voltage and frequency.

15. Warford began this procedure by shutting off the power

to the entire vessel. Then, with the aid of a flashlight, he

attached one of the alligator clips from his Fluke meter to the

fuse block associated with one of the generators before starting

it up, in order to get the voltage and frequency readings

necessary to adjust it by using the controls on the outside of

the panel door. After adjusting the first generator to the

correct levels, Warford turned off the power to the vessel and

repeated the same steps to adjust the second generator.

16. In the process of adjusting the third generator,

however, Warford placed the alligator clip of his meter across

the tabs of two adjacent fuses, creating a short circuit. The

clip had also been placed on the "high side" of the fuse, i.e.,

so that the fuse was not interposed between the power source and

the clip, resulting in an explosion and flash fire, rather than a

blown fuse. Warford suffered severe burns to his face and left

hand. The fire also destroyed the electrical panel.

17. In the investigation that followed, it was discovered,

upon removing the metal cover from generator no. 1, that the lead

wires attached to the neutral splice block had several inches of

their insulation burned off. (A splice block is a piece of metal

9 to which wires can be easily attached, using nuts and bolts, in

order to complete a connection.) One of the three bolts

attaching the cables to the block had become loose inside the

nut. The plaintiffs' expert witness, Frederick Osborne, and

Theriault's expert witness, Richard Martin, agreed that this was

evidence of a bad connection in the splice block, which resulted

in the heat that caused the burning discovered after the

accident; the condition was not caused by the accident. They

also agreed that the bad connection would not have revealed

itself in the operation of the generators prior to Warford's

attempt to place a full load on them on the day of the accident.

18. Osborne and Martin further agreed that the bad

connection could have contributed to the difficulty Warford was

having in synchronizing the generators on January 15. But, they

also agreed, the fact that the voltage regulators were from

different manufacturers (which Edwards had identified as a

potential problem while the vessel was still at Theriault's

shipyard in Nova Scotia) would not have contributed to any

difficulty in synchronizing the generators.

19. The evidence was in conflict, however, as to how

generator no. 1 came to have the loose connection in the first

place. It was undisputed that Theriault's work installing the

generators aboard the vessel would not have involved making any

10 connections to the neutral splice block, which simply "completes

the windings" internal to the generator. Indeed, during their

time aboard the vessel in Nova Scotia, neither Warford nor

Edwards ever saw anybody from Theriault working on the internal

wiring of the generators.

20. Furthermore, the yard supervisor, the project foreman,

and the electrician from Theriault who worked on converting the

vessel testified that the generators arrived at its yard with

their neutral splice blocks covered in electrical tape, and

denied having taped or otherwise manipulated the neutral splice

blocks themselves during the installation. Edwards agreed that,

in his experience. Caterpillar generators arrive from their

manufacturer with their internal connections already taped.

Osborne testified, however, that, in his experience. Caterpillar

generators come from the manufacturer without their internal

connections taped, putting the onus of checking and taping the

connections on the installer. Another employee of the shipowner

corroborated this view.

21. Osborne acknowledged that, if a generator does arrive

with its internal connections taped, an installer acts reasonably

in refraining from untaping them to check for tightness.

22. The neutral splice block in generator no. 1 showed

evidence of having been taped at some point prior to the fire

11 and, in fact, had been tied to an aluminum bracket that is not a

standard feature of Caterpillar generators. From this evidence,

the plaintiffs ask the court to infer that Theriault, contrary to

the testimony of its witnesses, must have been responsible for

taping the neutral splice block in generator no. 1.

23. The court declines to draw that inference. Jenkins

acknowledged in an e-mail to Theriault following the accident

that "all three gen[erators] were wired for 220 [volts] at the

factory and then converted to 480 [volts] somewhere between there

and your yard." There was no further evidence as to where that

work had been done or who had done it. Significantly, there was

no testimony or documentary evidence from Caterpillar,

Southworth-Milton, or Atlantic Tractor as to whether any of them

had been responsible for converting the generators to a higher

voltage, or even to corroborate the testimony from the

plaintiffs' witnesses that Caterpillar generators arrive from the

manufacturer without their internal connections taped.

24. Given the absence of any direct proof as to who taped

the neutral splice block in generator no. 1, the court finds the

most plausible inference to be that the taping was done by

whomever converted the generators to the higher voltage. That

work, unlike the work Theriault did in connecting the generators

to the vessel's electrical system, would seem likely to require

12 manipulating the neutral splice block inside the generators

(though this, too, is a matter of inference because there was no

testimony directly to that effect). In any event, though the

court did not consider Theriault's witnesses to be particularly

credible in testifying that the generators arrived at the

shipyard with their neutral connections taped, the court cannot

find, by a preponderance of the evidence, that it was Theriault

personnel who taped the neutral splice block in generator no. I.1

25. The switchboard that IPS designed and built for the

Isabelle Taylor lacked a number of features which, the plaintiffs

contend, made it defective or unreasonably dangerous and

contributed to Warford's mishap. First, the plaintiffs claim

that, instead of open fuse blocks, the switchboard should have

had either circuit breakers or "finger-safe" fuse blocks, which

would have prevented Warford from attaching his meter clip to two

different fuses. But the plaintiffs' expert witness, Osborne,

^here is also Theriault's practice of refraining from working inside the generators so as not to void their warranties, which it followed when it contacted Caterpillar after discovering the mislabeled wires in generator no. 2. See 5 6, supra. The mislabeled wires, incidentally, were in a different generator from the one where the bad connection was ultimately discovered; the parties agree that the mislabeling, which was corrected while the vessel was still in Nova Scotia, had nothing to do with the accident.

13 gave no testimony on the use of circuit breakers, as opposed to

fuses, in marine switchboards.

26. As to finger-safe fuse blocks, Osborne opined that "the

danger is too great" to use open fuse blocks, but could not

identify any standard that they violated or any marine

switchboard manufacturer who uses them. Though IPS's expert

witness, James Daley, acknowledged that finger-safe blocks are

safer, he explained that open fuse blocks are still the industry

standard because they provide the ease of access necessary to

find and replace blown fuses in a switchboard. Indeed, Osborne

acknowledged that finger-safe fuse blocks would have prevented

Warford from even using a meter to adjust the levels of the

generators, because that would have required holding the lead to

the fuse block, manipulating the meter, and manipulating the

controls on the outside of the door all at the same time, which

is impossible for one worker to do alone.

27. Second, the plaintiffs claimed that IPS should have

designed and built the switchboard with a plexiglass shield

covering the fuse holders. Osborne, again, did not identify any

standard that required a plexiglass shield in this context but,

even putting that problem aside, he acknowledged that Warford was

intentionally trying to touch the clip from his meter to the fuse

14 holders to perform his work.2 Thus, a plexiglass shield, like

the finger-safe fuse holders, might have prevented the accident,

but would also have hindered necessary access to the fuses.

Furthermore, Daley testified that no industry standard requires

the use of a plexiglass shield in this context.

28. Third, the plaintiffs claimed that the fuses should

have been placed closer to where the power entered the

switchboard to avoid an inadvertent short. As Osborne admitted,

however, this design would not have prevented the accident here.

Warford did not accidently contact a fuse holder while trying to

access a different component, but was purposely trying to touch a

fuse holder with the clip of his meter; the accident happened

when he touched the clip to two fuse holders at the same time.

29. Fourth, the plaintiffs claimed that warnings of high

voltage should have been placed on the switchboard or, relatedly,

that the one high-ampacity area inside--the tops of the fuse

holders--should have been identified as such. Osborne testified,

however, that "there's no way I can indicate that [the presence

of these warnings] would have changed anything in this particular

20sborne explained that holes can be placed in the shield to accommodate a probe from an electrical meter, but this configuration, like the finger-safe fuse blocks, would have made it impossible for Warford to use a meter to adjust the generators.

15 incident," given Warford's experience working with high-voltage

marine electrical panels. The court is also persuaded by Daley's

opinion that warning labels are not required on marine

switchboards because they are intended to be accessed only by

experienced personnel who are aware of the attendant dangers.

30. Following the accident, Edwards returned to Newington

to repair the switchboard. These repairs did not incorporate any

of the safety features--finger-safe fuse holders, a plexiglass

shield, a different configuration of the fuses in relation to the

power supply, or warning labels--that Osborne deemed lacking.

31. Meanwhile, a representative from Caterpillar was on

board working with the generators. Though he initially had

difficulty in getting them to share loads in parallel, he

succeeded once he had replaced the one dissimilar voltage

regulator with a model more like the other two. Still, none of

the expert witnesses who testified believed that the difference

in the regulators contributed to Warford's difficulty in getting

the generators to share loads on the day of the accident. Based

on this testimony, the court finds that the dissimilarity in the

regulators did not contribute to the accident.

32. After the accident, the Isabelle Taylor did not go

fishing until February 4, 2004. Had the accident not occurred,

it is possible--though hardly a given--that the vessel would have

16 gone fishing on January 17, 2004. The shipowner claims nearly

$202,600 in lost profits due to the accident. To compensate

Warford for his medical expenses and other injuries he suffered

from the accident, CNA, the shipowner's insurer, paid him nearly

$267,100. The defendants agree that this was a reasonable

settlement of his claims against the shipowner.

33. As part of this settlement, Warford executed a "General

Release, Indemnity Agreement, and Assignment." Through this

agreement, Warford released all of his claims against CNA, the

shipowner, and a number of affiliated entities, and assigned to

them "all of [his] rights and causes of actions against third

parties which are or may be responsible for [his] injuries . . .,

including but not limited to, [IPS] and Southworth-Milton."

Warford, the shipowner, and CNA (proceeding as Warford's

assignee, per the agreement, and as the shipowner's subrogee)

subsequently commenced this action against IPS and Theriault, but

not Southworth-Milton.

Rulings of Law

34. Before turning to the merits of the plaintiffs' various

theories of liability, the court must consider a threshold issue

raised repeatedly by the defendants. They argue that Warford, by

virtue of his release agreement with the other plaintiffs, did

17 not retain the right to proceed personally against the defendants

for damages in excess of what he received in the settlement.

This is correct, see 5 33, supra, but the point appears to be

academic, at least from the defendants' perspective. If Warford

did assign his claims for additional damages against them to CNA,

then CNA is the proper plaintiff; if he did not, then he is the

proper plaintiff. In either case, Warford and CNA are bothnamed

plaintiffs here, so at least one plaintiff has the right to

proceed against the defendants to recover for any damages Warford

sustained in excess of the settlement. Whether it is Warford or

CNA who keeps those damages (assuming any are recovered) under

their agreement would not seem to matter to the defendants.

35. The defendants essentially concede as much in their

revised requests for findings and rulings, where they state, "It

has been argued that Warford merely assigned his rights to [CNA];

he did not waive his rights entirely. This may be so; in any

case, CNA acquired all of Warford's rights." The defendants

argue that the identity of the proper plaintiff still matters,

though, because "CNA's complaint seeks to recover only the sums

that it paid on his behalf" in the settlement, to the exclusion

of any additional damages to which Warford might be entitled. On

this theory, CNA possesses Warford's right to recover those

damages, but CNA has not asserted that right in the complaint.

18 36. The complaint, however, specifically seeks to recover

on behalf of both CNA and Warford, or simply "Plaintiffs," for

"damages related to the personal injuries of Warford," or, even

more broadly, just "damages." In support of their more limited

reading, the defendants rely solely on an allegation that "CNA

paid Warford an amount to resolve his claim against [the

shipowner] .... In consideration of amounts received, Warford

assigned rights up to that amount to CNA" (emphasis added). But,

as the defendants recognize, this allegation is incorrect:

Warford assigned CNA "all of [his] rights and causes of actions

against third parties," including the right to recover damages in

excess of the settlement. Even assuming, despite this undisputed

fact, that the plaintiffs should be bound by the contrary

allegation in their complaint, it would follow only that Warford,

rather than CNA, has the right to proceed against the defendants

for those sums. Again, this distinction makes no difference to

the defendants, so there is no reason to hold the plaintiffs to

their mistaken allegation to the contrary.

37. The court rules, based on the unambiguous language of

the settlement agreement, that Warford assigned all of his rights

against the defendants to CNA, including his right to recover

damages in excess of what he got in the settlement, and that the

complaint pleads a claim for those damages on behalf of CNA.

19 With that formality out of the way, the court proceeds to

consider the merits of the plaintiffs' claims.

38. The plaintiffs have brought a number of claims against

the defendants: negligence (count I); breach of contract (count

II); breach of implied warranty, including the implied warranty

of workmanlike performance (counts III and V ) ; strict products

liability (count IV); breach of express warranty (count VI); and

indemnification and contribution (count VII). These claims, in

turn, arise out of two categories of wrongdoing: defects in the

generators and defects in the switchboard. First, the plaintiffs

fault the defendants for the condition of the generators on the

day of the accident, which, the plaintiffs allege, required

Warford to try to adjust the generators by using his manual Fluke

meter to take readings inside the switchboard, in turn causing

the accident. Second, the plaintiffs fault IPS for the design of

the switchboard. The court will consider these theories in turn.

I. Defects in the Generators

39. The plaintiffs claim that the generators' inability to

share an electrical load on the day of the accident was due to

either (a) the dissimilar voltage regulators or (b) the bad

connection in the neutral bus bar. This first alternative is

unsupported by the evidence. As the court has found, based on

20 the agreement of all the expert witnesses, see 5 31, supra, the

dissimilarity in the regulators did not contribute to the problem

Warford was having with the generators on the day of the

accident. Any wrongdoing by the defendants in the form of the

dissimilar regulators, then, did not cause the plaintiffs'

alleged injuries and therefore cannot support any of their

claims. See 1 Thomas J. Schoenbaum, Admiralty and Maritime Law

§ 5-3, at 188 (4th ed. 2004) ("Proof that the wrongful act caused

the damage is an essential element of a cause of action under the

general maritime tort law.").3

41. Unlike the dissimilar regulators, the bad connection in

the neutral bus bar in generator no. 1 could have caused the

problem Warford was experiencing on the day of the accident. See

5 18, supra. So the plaintiffs argue that the accident would not

have happened if the defendants had (a) inspected the connections

inside the generators, or (b) ensured that the generators would

properly share an electrical load, which, in turn, would have

revealed the bad connection. For the reasons explained infra,

neither of these theories has merit.

3Though the defendants rely extensively on New Hampshire law, federal maritime law provides the rules of decision in this case. See 1 Schoenbaum, supra, § 3-11, at 143.

21 42. The court has found that, when the generators arrived

at Theriault's shipyard, the neutral bus bar in generator no. 1

had already been taped, likely by whomever was responsible for

converting the generators from 220 volts to 480 volts. See 5 24,

supra. As Osborne acknowledged, then, the defendants acted

reasonably by installing the generator without untaping the

connection to check it. See 5 21, supra. The court rules that

the defendants were not negligent, nor did they breach the

implied warranty of workmanlike performance, by failing to

inspect the taped connection in the neutral bus bar in generator

no. 1. Theriault likewise fulfilled its express contractual duty

to "install" the generators,4 see 5 3, supra. "Where it has

performed its tasks as a skillful workman should, . . . the

[maritime] repair firm will not be held responsible for defects

attributable to faulty workmanship." Little Beaver Enters, v.

Humphreys Rvs., Inc., 719 F.2d 75, 78 (4th Cir. 1983) .

43. The defendants also did not breach any duty to ensure

that the generators would properly share an electrical load,

because the defendants had no such duty, either as matter of

contract or otherwise. The provisions of a maritime contract are

4The plaintiffs have not identified any provision of the shipowner's contract with IPS that even arguably required it to inspect the generator, or any "express warranty" by either defendant as to the quality of the generators.

22 given their plain meaning unless they are ambiguous. See, e.g..

Royal Ins. Co. of Am. v. Orient Overseas Container Line, Inc.,

514 F.3d 621, 634 (5th Cir. 1984). While, as the plaintiffs

emphasize, each defendants' contract required it to "convert the

vessel's switchboard to paralleling ability," see 5 4, supra,

this language does not obligate the defendants to ensure that the

generators themselves would operate in parallel--only that the

switchboard would enable them to do so. And, apart from its

allegedly unsafe design, see 25-29, the plaintiffs have not

identified any defect in the switchboard that would have

interfered with its function in paralleling the generators. That

defect, it is agreed, was in the generators, and their

functioning was not the defendants' responsibility under the

plain meaning of their contracts with the shipowner.

44. The absence of any express contractual commitment to

ensure that the generators would work in parallel strongly

suggests the absence of any implied duty toward that end, since

"the nature and extent of an implied warranty of workmanlike

service and any resulting indemnity depend upon the terms of the

contract which gave rise to that warranty." Maritime Overseas

Corp. v. N e . Petroleum Indus., Inc., 706 F.2d 349, 354 (1st Cir.

1983). To hold a defendant to an implicit obligation that

exceeds its express contractual duties, then, requires evidence

23 "that the parties intended [the defendant] should bear ultimate

responsibility for the . . . operation or that [the defendant]

was in a better position than [others] to prevent accidents

during that operation." Id. at 354-55. The evidence here is to

the contrary.

45. By all outward indications, the parties intended that

Caterpillar--rather than the defendants--remained responsible for

testing the generators under a full load to ensure that they

operated properly. Atlantic Tractor, in fact, specifically

informed the shipowner: that the start-up testing on the

generators (which, notably, was performed by Atlantic Tractor,

not the defendants) could not verify how they would work under a

full electrical load; that doing so would also require adjusting

the voltage regulators; and that a representative from

Caterpillar would be aboard the ship for sea trials to make those

adjustments. See 5 7, supra. Indeed, Atlantic Tractor

emphatically told the shipowner that IPS need not be involved in

this process. See id.

45. Moreover, as a practical matter, the defendants could

not have ensured that the generators shared loads properly,

because the problem caused by the loose connection in generator

no. 1 would not have manifested itself until a full load was

placed on the electrical system. See 5 17, supra. And the

24 refrigeration system--which was necessary to generate a full

load--was not installed until after the vessel had left

Theriault's shipyard and after Edwards had finished with the

switchboard.5 See 5 14, supra. This sequence of events confirms

the parties' understanding that Caterpillar, not the defendants,

was responsible for ensuring that the generators worked properly.

46. While federal maritime law recognizes the general rule

that a defendant is liable for breaching a duty voluntarily

assumed by affirmative conduct, see, e.g., Sagan v. United

States, 342 F.3d 493, 498 (6th Cir. 2003), the defendants did

not, through any conduct identified by the plaintiffs, so assume

the duty to ensure the proper operation of the generators. To

the contrary, Theriault's actions suggest that it relied on

Atlantic Tractor to perform this work, including the initial

start-up. See 6-7, supra. The fact that Theriault's yard

supervisor may have taken on the burden of coordinating the

arrival of the various components necessary for the conversion

project--while, it should be noted, maintaining that "actual

responsibility for delivery of all this iron is not on our

5Indeed, as the shipowner acknowledged in removing the vessel from the yard, Theriault's job was "complete" at that point, even though work remained on the electrical panel and refrigeration system. See 5 9, supra.

25 shoulders"--is insufficient to transform the company into a

"general contractor" bound to ensure the complete success of the

conversion project. As is clear by now, Theriault could not have

reasonably been expected to carry the task to completion, given

how much of it had been purposefully left to other parties, as a

matter of both contract and course of dealing, and clearly did

not intend to do so.

45. As for IPS, Edwards did indicate that "load sharing

[was] fine," even under the anticipated demands of the

refrigeration system, before he left the vessel in Newington in

December 2003. See 5 11, supra. And Warford testified that he

relied on this assurance in attempting to run the refrigeration

system off the generators on the day of his accident. The fact

remains, however, that the shipowner knew, at least since the

vessel left Nova Scotia, that the services of Atlantic Tractor

would be required to make the necessary adjustments to the

generators so they could operate properly under a full load, see

5 7, supra; Warford was also aware of that requirement, see

11, 14, supra. And Edwards himself had asked Southworth-Milton,

during the same period, to send a technician to set up the

voltage regulators. See 5 8, supra. The court rules that IPS

did not voluntarily assume any duty to ensure that the generators

worked correctly under a full load.

26 46. The plaintiffs also claim that the defendants failed to

warn them "not to attempt to operate the generators" or "to

investigate the reason of their irregularity," as Warford was

doing at the time of the accident.6 But the defendants "had no

duty to warn the shipowner of hazards of which the shipowner was

aware or could reasonably have been expected to be aware." Canal

Barge Co. v. Torco Oil Co., 220 F.3d 370, 376-77 (5th Cir. 2000) .

Here, the shipowner knew, because Atlantic Tractor told it, that

the generators had yet to be tested under the demands of the

refrigeration system, see 5 7, supra, so it should have come as

no surprise that they did not work properly when Warford

attempted to place that system on-line on the day of the

accident. Warford was likewise on notice that Caterpillar's

participation was necessary to ensure that the generators

paralleled correctly under a full load. See 11, 14, supra.

So the defendants had no duty to warn the plaintiffs of a risk

they already appreciated: that the generators might not work

6Insofar as this argument is intended to suggest that the defendants should have warned Warford about the dangers of opening the electrical panel, it fails because those dangers were obvious, see 5 29, supra, and there is generally no duty under maritime law to warn of obvious dangers. See, e.g., Jackson v. Egyptian Navigation Co., 364 F.3d 113, 117-18 (3d Cir. 2004) .

27 properly under the demands of the refrigeration system until

Caterpillar made the necessary adjustments.

47. Furthermore, even if the defendants did have a duty to

ensure the functioning of the generators under a full load, and

breached it, that breach was not the cause of the plaintiffs'

injuries. Maritime law recognizes the doctrine of superseding

cause to relieve a defendant of liability, even though its

actions substantially contributed to the plaintiff's injury,

where "the injury was actually brought about by a later cause of

independent origin that was not foreseeable," including the

plaintiff's own behavior. Exxon Co., U.S.A. v. Sofec, Inc., 517

U.S. 830, 837 (1996) .7 It is undisputed that the accident would

not have occurred had Warford not placed the alligator clip from

7A s the Court explained in Exxon, the concept of superseding cause is distinct from the concept of comparative fault, even where the superseding cause takes the form of the plaintiff's own negligent actions. 517 U.S. at 837-38. The court's ruling that Warford's actions were the superseding cause of the plaintiff's injuries, then, does not require it to resolve the parties' dispute over whether the shipowner's comparative fault can bar a claim for breach of the implied warranty of workmanlike service, as opposed to a claim for negligence. Compare Curcuru v. Rose's Oil Serv., Inc., 846 N.E.2d 401, 413 (Mass. A p p . C t . 2006) (holding that comparative negligence does not bar warranty claim under maritime law) with Knight v. Alaska Trawl Fisheries, Inc., 154 F.3d 1042, 1046 (9th Cir. 1998) (holding to the contrary). Again, causation is an essential element of a breach of warranty claim under maritime law, 1 Schoenbaum, supra, § 5-8, at 224, and cannot be shown when it was the plaintiff's own conduct that provided a superseding cause of his injury, id. § 5-3, at 192.

28 his meter across the terminals of two different fuses, or if he

had placed the clip on the protected side of the fuses rather

than the unprotected "high" side. See 5 16, supra.

48. Even if it was the defendants' wrongdoing that caused

Warford to try to parallel the generators on the day of the

accident, the way he went about that was the actual cause of the

accident. And the plaintiffs have not suggested--nor can the

court find--that Warford's disregard of the fundamentals of

electrical circuitry on that day was foreseeable to the

defendants, particularly given his long history of working with

maritime electrical systems,8 see 5 5, supra. The court rules

that Warford's actions were the superseding cause of the

plaintiffs' injuries, even if the defendants were at fault in

failing to ensure the proper operation of the generators.

49. Finally, as a matter of law, the defendants cannot be

held liable for the defects in the generators under theories of

strict products liability or breach of implied warranties of

merchantability or fitness for a particular purpose. Though

8Warford testified at trial that, in attempting to parallel the generators on the day of the accident, he simply followed the procedures he had seen Edwards carrying out or the directions Edwards gave over the telephone. But Warford did not claim that Edwards showed or told him how to place the alligator clip and, even if he had, there is no way that an experienced electrician would have showed or told him to do it across two different fuses, on the unprotected side.

29 maritime law incorporates the doctrine of strict products

liability, E. River Steamship Corp. v. Transamerica Delaval,

Inc., 476 U.S. 858, 865 (1986), that liability attaches only to

"[o]ne who sells any product," Restatement (Second) of Torts

§ 402A (1965).9 Caterpillar and its dealers, rather than the

defendants, were the "sellers" of the generators; they were

delivered to Theriault's shipyard for installation aboard the

vessel. And one who merely installs a defective product is not

subject to strict liability under § 402A. See, e.g.. Winters v.

Fru-Con Inc., 498 F.3d 734, 745 (7th Cir. 2007); Counts v. MK-

Ferquson C o ., 862 F.2d 1338, 1340-41 (8th Cir. 1988); Malloy v.

Dotv Conveyor, 820 F. Supp. 217, 219-222 (E.D. Pa. 1993); 1 Louis

R. Frumer & Melvin I. Friedman, Products Liability § 5.13[2], at

5-120 — 5-122 (1960 & 2008 supp.).

50. Similarly, while maritime law incorporates the Uniform

Commercial Code, including Article 2, see Southworth Mach. Co. v.

F/V Corev Pride, 994 F.2d 37, 40 n.3 (1st Cir. 1993), those

provisions— including the implied warranties of merchantability

and fitness for a particular purpose--do not apply to the

liability has since been expanded to one "who sells or distributes" the product. Restatement (Third) of Torts: Products Liability § 1 (1998), but, as the authorities cited infra make clear, that category also excludes those outside the chain of distribution who merely install the product, like the defendants.

30 defendants' installation of the generators. "Article 2 of the

U.C.C. applies to 'transactions in goods.' It does not govern

agreements to provide services," including installation. Merritt

Locran, Inc. v. Fleming Cos. (In re Merritt Locran, Inc.), 901 F.2d

349, 361 (3d Cir. 1990); see also, e.g., Malloy, 820 F. Supp. at

222; In re Trailer & Plumbing Supplies, 133 N.H. 432, 437-38

(1990). The defendants are not liable for the defects in the

generators under any theory asserted by the plaintiffs.10

II. Defects in the Switchboard

51. The plaintiffs assert a number of claims against the

defendants based on the alleged defects in the design of the

switchboard. See 5 38, supra. To prevail on any of these

claims, of course, the plaintiffs must prove that the switchboard

10CNA asserts claims for indemnification and contribution based on its settlement, as the shipowner's insurer, of Warford's claim against it. But, as the shipowner's subrogee, CNA is entitled to indemnification only if the shipowner (1) had a contractual right of indemnification or (2) was liable to Warford (i) vicariously, for the defendants' torts or (ii) as a seller of a product supplied by the defendants. Restatement (Third) of Torts: Apportionment of Liability § 22(a) (2000). None of those conditions is satisfied here. (CNA might also be entitled to indemnification for the defendants' breach of the implied warranty of workmanlike performance,see Rvan Stevedoring Co. v. Pan-Atl. S.S. Corp., 350 U.S. 124, 132-35 (1955), but no such breach has been proven.) CNA is not entitled to contribution because, as discussed at length, it has not proven the defendants' liability. See Restatement (Third) of Torts: Apportionment of Liability § 2 3 cmt. j.

31 was, in fact, defective in some way that contributed to their

injuries. See 1 Schoenbaum, supra, § 5-6, at 208. They have not

carried that burden.

52. Again, the plaintiffs allege four defects in the

switchboard: (a) the use of open, instead of "finger-safe," fuse

blocks, (b) the absence of a plexiglass shield over the fuse

blocks, (c) the placement of the fuses less than the shortest

possible distance from the power source, and (d) the lack of

warnings outside or inside the panel. But Osborne conceded, and

the court finds, that neither (c) nor (d)--assuming, dubitante,

that they were defects at all--contributed in any way to the

accident. See 27-28, supra.

53. As to the open fuse blocks and thelack of a plexiglass

shield, the court finds that these were not defects. To prevail

on any claim based on a defective product, "the plaintiff must,

in every case, in every jurisdiction, show the product was

defective. It is not enough for the plaintiff to show that a

better, safer, or different design would have prevented his or

her injury." 1 Frumer & Friedman, supra, § 8.01[5], at 8-20

(quotation marks, emphases, and footnotes omitted). Thus, even

though Osborne and Daley more or less agreedthat the finger-safe

fuse blocks and plexiglass shield would have made the switchboard

32 "safer," see 25-26, supra, it does not follow that their

absence made the switchboard defective.

54. A product "is defective in design when the foreseeable

risks of harm posed by the product could have been reduced or

avoided by the adoption of a reasonable alternative design."

Restatement (Third) of Torts: Products Liability § 2(b) (1998).

The evidence overwhelmingly indicates neither finger-safe fuse

blocks nor a plexiglass shield covering the fuse blocks to be a

reasonable alternative design in a switchboard on a commercial

vessel. Osborne could identify neither any industry standard

that required these features nor any manufacturer who uses them.

See 55 25-26, supra. Under maritime products liability

principles, this does not necessarily doom the plaintiffs'

claims, see Frantz v. Brunswick Corp., 866 F. Supp. 527, 534

(S.D. Ala. 1994), but it does suggest that the features are not

part of a reasonable design. Indeed, Daley explained (and

Osborne acknowledged) that the use of finger-safe fuse blocks or

a shield makes it more difficult to take readings from the panel

or even to change fuses. See 55 26-27, supra. These tasks are

essential to the continued safe operation of a vessel and are

regularly performed by experienced personnel like Warford.

Finally, it is telling that, even when IPS rebuilt the

33 switchboard after the accident, neither finger-safe blocks nor a

shield were incorporated. See 5 29.

55. In the face of this evidence, the plaintiffs offered

only Osborne's conclusory statements that it was not "prudent and

workmanlike"--a phrase he later acknowledged to be essentially

subjective--to design the panel without the finger-safe blocks or

the shield. The court found this testimony unconvincing. The

court finds that these features do not embody a reasonable

alternative design and, consequently, that their omission from

the switchboard did not amount to the defect necessary to support

any of the plaintiffs' claims.

Conclusion

Based on the foregoing, the court rules in the defendants'

favor on all the plaintiffs' claims. The clerk shall enter

judgment accordingly and close the case.

SO ORDERED.

Josrfl Untted .tted States District Judge Dated: October 21, 2008 cc: Christine Friedman, Esq. William H. Welte, Esq. Peter G. Callaghan, Esq. Gregory P. Hansel, Esq. Lee Stephen MacPhee, Esq. Michael Kaplan, Esq. Daniel P. Luker, Esq.