     Case: 12-30378       Document: 00512100428         Page: 1     Date Filed: 01/03/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          January 3, 2013

                                       No. 12-30378                        Lyle W. Cayce
                                                                                Clerk

SMITH MARITIME, INCORPORATED

                                                  Plaintiff
v.

L/B KAITLYN EYMARD; ET AL

                                                  Defendants


ASSOCIATED GAS & OIL COMPANY, LIMITED,

                                                  Counter-Claimant - Appellant
v.

TRAM SHIPYARDS, INCORPORATED

                                                  Counter Defendant - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                                  (10-CV-1871)


Before DAVIS, JONES and SMITH, Circuit Judges.
PER CURIAM:*


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-30378

      In this dispute between the owner of two liftboats, Associated Gas & Oil
Company, Limited (“Associated”), and Tram Shipyards, Incorporated (“Tram”),
a shipyard which performed work on the liftboats, the issue is whether the
economic loss rule of East River Steamship Corp. v. Transamerica Delaval, Inc.,
476 U.S. 858 (1986), precludes claims by the vessel owner Associated for
economic loss resulting from the negligence of Tram. We find that East River
and its progeny clearly apply to these facts, barring recovery to Associated under
a products liability or other tort theory and limiting its recovery to its
contractual remedies.
                                       I.
      On or about February 16, 2010, Associated purchased two self-elevating
liftboats, the L/B KAITLYN EYMARD (“KAITLYN”) and L/B NICOLE EYMARD
(“NICOLE”), from Offshore Marine, Inc. (“OMI”), pursuant to an Asset Purchase
Agreement. Under the Asset Purchase Agreement, OMI agreed to provide
certain spare parts, and to provide and install additional living quarters and
accessories on the two vessels. Since OMI does not own a shipyard, and thus
could not install the additional living quarters and accessories on the liftboats
itself, OMI used its sister corporation, Tram Shipyards, Inc. (“Tram”), to
purchase the materials and perform the installation of the additional living
quarters and accessories. In the course of installing the additional living
quarters on the NICOLE, Tram cut, extended, and re-welded the crane boom
cradle stanchion of the hydraulic pedestal crane mounted aboard the NICOLE.
      Associated modified these liftboats to perform work in Nigeria under a
contract Associated had recently won. This required Associated to ship the
vessels from Louisiana to Nigeria. As the flotilla transporting the liftboats to
Nigeria encountered rough seas, the stanchion snapped at the site of the weld,
causing the crane boom on the NICOLE to swing wildly and crash into the
additional living quarters, causing damage. As a result of this damage, the

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                                  No. 12-30378

flotilla had to be diverted to St. Thomas, British Virgin Islands, for evaluation
of the damage. After recommencing the voyage, further rough seas exacerbated
the damage, and the flotilla diverted to Trinidad and ultimately returned to
Amelia, Louisiana for repairs, where the vessels were located at the time of the
filing of the instant suit.
      Associated alleged in its Counterclaim against Tram that the damage from
the swinging crane, the resulting diversions from the planned route for
evaluation of the damage, and the ultimate failure of the liftboats to reach
Nigeria to perform the work for which Associated purchased the liftboats, are all
a direct result of the negligence of Tram in (1) unilaterally deciding to cut and
re-weld the crane boom cradle stanchion aboard the NICOLE; (2) re-welding the
crane boom cradle stanchion with such inferior workmanship that the weld could
not withstand the stresses of mere rough seas; and (3) failing to have the weld
inspected or certified to ensure its structural soundness, integrity, and ability
to survive rough sea conditions. Furthermore, the delays during, and ultimate
failure of, the transport of the vessels to Nigeria, as directly caused by the
negligence of Tram, caused Associated to suffer a crippling loss of profits because
the liftboats were not performing the work for which they were purchased and
were not generating income for Associated during the lengthy repair process in
Louisiana.
      After other parties in this suit settled, Tram filed a motion for summary
judgment claiming that despite any factual dispute, the economic loss rule of
East River precluded Associated from recovering economic losses against Tram.
The district court granted Tram’s motion and dismissed Associated’s
counterclaim. Associated appeals.
                                        II.
      The disposition of this case depends on whether the facts require
application of the rule announced by the Supreme Court in East River. In East

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                                  No. 12-30378

River, a shipbuilder contracted with the defendant Delaval to design,
manufacture and supervise the installation of turbines in four supertankers it
was building. 476 U.S. at 859. After the ships were put into service under a
charter to the plaintiffs, the turbines on all four ships malfunctioned due to
design and manufacturing defects. Only the turbines were damaged as a result
of the defects. Id. at 860-61. The Supreme Court held that a manufacturer in
a commercial relationship has no duty under either a negligence or strict
products-liability theory to prevent a product from injuring itself. Id. at 871.
Thus the charterer could not recover for damage to the turbines or resulting
economic losses from Delaval.
      East River has been extended to claims brought against a provider of
professional services (construction supervision) provided to a vessel
manufacturer, Employers Ins. of Wausau v. Suwannee River Spa Lines, Inc., 866
F.2d 752 (5th Cir. 1989), and a repairer of a vessel, Nathaniel Shipping, Inc. v.
General Elect. Co., 920 F.2d 1256 (5th Cir. 1991)(Nathaniel Shipping I).       In
Wausau, plaintiff chemical company entered into a contract with a naval
architectural firm and a ship manufacturer for the construction of a vessel to be
used to ship its chemicals. 866 F.2d at 756. On its second voyage, the vessel’s
tug section broke loose from the barge section and sank. Id. The plaintiff filed
suit alleging that the vessel was unseaworthy on delivery. Id. at 757. This court
precluded “recovery in maritime tort for purely economic loss stemming from the
negligent performance of a contract for professional services where those
services are rendered as part of the construction of a vessel.” Id. at 755.
Plaintiffs were therefore limited to their contractual remedies. Id.
      In Nathaniel Shipping I, the plaintiff shipowner Nathaniel Shipping
contracted with a shipyard, Louisiana Gulf Shipyards (LGS) to replace a
damaged thrust block. 920 F.2d at 1258. LGS contracted with defendant
General Electric to drill holes for the new thrust block. Id. Nathaniel Shipping’s

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suit alleged that General Electric negligently drilled the holes and sought
economic damages allegedly caused by the negligence. Id. Even though the
shipowner was not in contractual privity with General Electric, who provided
repair services rather than construction or manufacture of a vessel, this court
held that the East River economic loss rule precluded the shipowner’s recovery
against General Electric. Id. at 1264-65. In Nathaniel Shipping, Inc. v. General
Elec. Co., 932 F.2d 366 (5th Cir. 1991)(Nathaniel Shipping II) (on petition for
rehearing), this court declined to find a distinction between services for the
manufacture of a new vessel and services related to the repair of an existing
vessel. “Such a distinction would be inconsistent with our reasoning in Wausau.
The public policy concerns underpinning tort duties are not present here, and
the parties are capable of defining satisfactory performance and allocating the
risk of defective performance in their contract.” Id. at 368, n.3.
      Associated argues that this case does not fall within the rule of East River
and the other cases discussed above because it involves, not a vessel’s
manufacture or repair, but the modification of a vessel. We see this as a
distinction without a difference insofar as the applicability of the East River rule
is concerned. In the Asset Purchase Agreement with OMI, Associated purchased
two vessels with living quarters installed. Associated took the Purchased Assets
(which is defined as the Vessels and the Living Quarters (Additional Equipment)
“as is, where is”). Associated’s complaint, like those in East River and the other
cases described above, is that it did not receive the benefit of its bargain because
the quality of the product did not meet its expectations. As the Supreme Court
stated in East River, “Damage to a product itself it most naturally understood
as a warranty claim. Such damage means simply that the product has not met
the customer’s expectations, or, in other words, that the customer has received
‘insufficient product value.’” 476 U.S. at 872. Such claims are best governed by
contract law and the law of warranty - not tort.

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                                       No. 12-30378

      Associated also argues that the living quarters that were added to the
liftboats and damaged by Tram’s alleged negligence are “other property” so the
vessel did not damage ‘itself” and its claims are not subject to the East River
rule. This argument requires us to define “other property” for this purpose. In
Shipco 2295, Inc. v. Avondale Shipyards, Inc., the plaintiff brought tort claims
against the manufacturer of several vessels for alleged design defects in the
propellers and hull brackets and brought claims against the supplier of the
vessels’ steering systems for alleged defects. 825 F.2d 925, 926 (5th Cir. 1987).
The plaintiffs argued that defects in certain components of each vessel caused
damage to unrelated components in the same vessel. Id. at 928. They argued
that the resulting damage was damage to “other property” and that East River
recognizes a purchaser’s right to recover economic losses resulting from damage
to the product in tort when the defect in the product causes damage to other
property. Id. To determine “what is the product?” this court looked to the object
of the contract or bargain that governs the rights of the parties. Id. This court
found that East River barred plaintiff’s claims against the manufacturer and
against the supplier because the “object of the contract” was the completed vessel
and not the component parts of the vessel. Id.
      Associated argues that the living quarters are “other property” because the
purchase from OMI set a separate price for that component. The Asset Purchase
Agreement in this case does set separate prices for the vessel and the added
living quarters.1 However, the Asset Purchase Agreement also combines the


      1
          The relevant provisions of the contract follow:

              WHEREAS, Seller desires to sell to Buyer, and Buyer desires to acquire
      from Seller, the Vessels as defined herein, for a total purchase price for the
      Vessels of Thirty-Five Million Two Hundred Thousand and No/100 United
      States Dollars ($35,200,000.00 USD) on the terms and conditions specified
      herein;


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                                     No. 12-30378

Vessels and other components including the Living Quarters / Additional
Equipment as the “Purchased Assets.”

      1.1    Purchase and Sale of Assets, At the Closing, Seller will sell,
             convey, transfer, assign, and deliver to Buyer (i) the Vessels
             together with their engines, tackle, winches, cranes, fuel on
             board, cordage, general outfit, electronic and navigation
             equipment, radio installations, appurtenances, appliances,
             inventory, spare parts, stores, tools and provisions on board
             each of the Vessels; (ii) all Permits (to the extent transferable)
             relating to the Vessels transferred; (iii) all business records
             relating exclusively to the Vessels (the “Records”); (iv) any
             technical or regulatory documentation already aboard the
             Vessels, including classification certificates, loadline
             certificates, radio licenses, operating manuals, vessel logs and
             preventative maintenance manuals (collectively, the “Vessel
             Documentation”); and (v) all drawings and intellectual
             property related to each of the Vessels (the “Intellectual
             Property”). The assets described in the foregoing clauses (i)
             through (v) are hereinafter collectively referred to, together
             with the Additional Equipment, as the “Purchased
             Assets.” (emphasis added)

The Asset Purchase Agreement defines the “Purchased Assets”, which are the
object of the contract as subject to the warranty. In para. 3.4, the Purchased
Assets are conveyed “as is, where is.” Accordingly, the Living Quarters are not
“other property” for purposes of this analysis and Associated cannot avoid
application of the rule from East River.




             WHEREAS, In addition to the Vessels, Buyer has agreed to purchase
      from Seller additional equipment, specifically Living Quarters and Accessories
      as detailed on the ProForma Invoice attached hereto as Exhibit “A” and
      incorporated herein by reference (hereinafter “Additional Equipment”), for
      an additional Seven Hundred Twenty Seven Thousand Nine Hundred Twenty
      Seven and No/100 United States Dollars ($727,927.00);


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                                  No. 12-30378

                                      III.
      The crane boom cradle stanchion and the living quarters that were
damaged were integral parts of the vessel as it was sold to Associated. The
economic losses Associated suffered as a result of the damage are not recoverable
under tort theories from Tram. Under East River, the plaintiff is relegated to its
rights under the contract. The district court properly dismissed Associated’s
claims on summary judgment. AFFIRMED.




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