Woods Hole Oceanographic Institution v. ATS Specialized, Inc.

United States District Court

District of Massachusetts

)

Woods Hole Oceanographic )

Institution, )

)

Plaintiff, )

)

v. ) Civil Action No.

) 17-12301-NMG

ATS Specialized, Inc., et al., )

)

Defendants. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises from the substantial damage done to an

experimental, deep sea submarine during its transport between

Woods Hole, Massachusetts and Australia. It didn’t get very

far.

In or about May, 2017, plaintiff Woods Hole Oceanographic

Institution (“WHOI” or “plaintiff”), the owner of the submarine,

executed a settlement agreement with Eagle Underwriting Group,

Inc. (“Eagle”) and its underwriters (collectively “the insurance

companies”) whereby the insurance companies agreed to pay WHOI

$3.9 million and WHOI agreed to assign (subrogate) any claims

arising out of the damage to the insurance companies to the

extent of that payment. Thereafter, WHOI brought several claims

sounding in contract and tort against the multiple defendants

allegedly involved in the transportation of the submarine and,

in January, 2021, this Court named the insurance companies as

co-plaintiffs.

Pending before the Court are more than 15 motions for

summary judgment and a plethora of other motions filed by the

parties.

I. Background

A. The Facts

The facts of this case have been broadly recited in prior

Memoranda of this Court and Reports and Recommendation of

Magistrate Judge Jennifer C. Boal, see, e.g., Docket Nos. 91,

238, 239, 420 & 444, but relevant here is the following:

In or before 2015, WHOI and the Australian National

Maritime Museum (“the Museum”) executed an agreement (“the Loan

Agreement”) whereby WHOI was to loan its submarine, the Deepsea

Challenger (“the DSC”), to the Museum for two years. The

agreement provided that the Museum was responsible for, inter

alia, arranging the multimodal transportation of the vessel

between Massachusetts and Australia and insuring it during that

transport for $5 million, the amount disclosed in the Loan

Agreement as the value of the DSC. The parties also agreed to

indemnify each other against all “actions, claims, suits,

demands, liabilities, losses, damages and costs” relating to the

Loan Agreement.

To perform its obligations under the Loan Agreement, the

Museum retained Ridgeway International Australia Limited

(“Ridgeway Australia”) to arrange the transportation and obtain

insurance coverage for the trip. Ridgeway Australia, in-turn,

engaged Ridgeway International USA, Inc. (“Ridgeway USA”) to

coordinate and supervise both and the Museum subsequently

provided Ridgeway USA a power of attorney to perform those

duties on the Museum’s behalf. The Museum also received a

donation from Wallenius Wilhelmsen Logistics (“Wallenius”), an

ocean carrier, to cover the ocean portion of the trip.

With respect to the inland portion of the transport,

Ridgeway USA contracted with ATS Specialized (“ATS”) to carry

the submarine via tractor-trailer (“the Trailer”) from Woods

Hole, Massachusetts to the port of Baltimore, Maryland, where it

was to be loaded onto the Wallenius vessel and shipped to

Australia. Ridgeway USA also arranged for Guy Tombs Ltd.

(“GTL”) to secure a $5 million cargo insurance policy covering

the entire transportation of the DSC.

i. The Insurance Policy

Just prior to departure, GTL obtained a $6.5 million Single

Shipment Policy (“the Policy”) from Eagle’s underwriters which

represents a $1.5 million increase from the amount requested and

from the disclosed value of the DSC as listed in the Loan

Agreement. The Policy, which is apparently governed by English

law, named GTL as an insured, WHOI as the loss payee and the

Museum as the consignee of the DSC. Neither Ridgeway USA nor

the Museum were expressly named as insureds under the Policy but

the Museum paid the Policy premium and the named insured, i.e.

GTL, is an entity owned by the same individual who owns 65% of

Ridgeway USA, namely, Mr. Guy Tombs. Furthermore, the Policy

contained an “Insured Clause” providing that

Eagle Underwriting Group Inc. in consideration of premium

at the rate(s) hereinafter stated does insure on behalf of

and as Agents for the Company(ies) (hereinafter referred to

as the Company) set forth in the Declaration Page and/or

affiliated and/or associated and/or subsidiary companies

and/or for whom the Insured receives instructions or have a

responsibility to arrange insurance.

Thus, Ridgeway USA and the Museum contend that they are covered

by the Policy. They proffer several affidavits and other

evidence in support of that position, including affidavits of

Robert Smaza (“Smaza”), the Vice-President of an insurance

brokerage firm, and Becky Lynn Hodge (“Hodge”), the Director of

Ridgeway USA, and an expert report by Peter MacDonald Eggers

(“Eggers”), a purported expert in English insurance law.

Plaintiffs disagree and have moved to strike the two affidavits

and a supplemental expert report of Eggers.

ii. The Transport and Fire

On July 7, 2015, approximately two weeks prior to the

shipment, an ATS driver took the subject Trailer to a

TravelCenters of America (“TCA”) in Whitestown, Indiana,

complaining of an air leak. There, a TCA service technician

performed an annual Department of Transportation (“DOT”)

inspection, repaired the slack adjusters on the Trailer’s rear

axle and attempted to address the driver’s complaint of an air

leak. The service technician examined the Trailer’s brakes and

other components and, although he failed to identify the air

leak, he ultimately verified that each component met the

requirements to allow the Trailer to pass the DOT inspection.

Accordingly, the Trailer was deemed safe and appropriate for

transporting cargo.

On or about July 22, 2015, ATS took possession of the DSC,

loaded it onto the Trailer and began the trip to Baltimore.

That same day, Ridgeway USA forwarded to ATS and WHOI a Truck

Bill of Lading which was to be used for informational purposes

only and which provided that the DSC was to be delivered by ATS

to Baltimore, Maryland the following day. The bill of lading

contained no terms, conditions or provisions concerning

limitation of liability or choice of law. ATS contends that it

also issued its own bill of lading (“the ATS Bill”) that day,

although the other parties disagree and submit that the ATS Bill

was not produced until several days after the transport. The

ATS Bill notes Baltimore as the destination and purports to

limit ATS’ liability for any loss or damage to $1.00 per pound

of cargo weight.

Approximately one hour into the trip, the Trailer

experienced a single tire blow-out in its front axle.

Terminated defendant Service Tire Truck Center (“STTC”) was

called to service the flat tire and sent one of its tire

technicians to do the job. When the tire technician arrived at

the Trailer, he removed the front left tires, cleaned and

inspected the exterior of the front-axle brake drum for clogs

and cracks per usual and affixed the replacement tire. A few

hours later, the Trailer was parked overnight at another TCA

facility in Rhode Island. Just after its departure the next

day, however, the left rear wheel well of the Trailer caught

fire. The fire spread to the submarine and caused substantial

damage to it.

The parties have designated multiple experts to opine on

the origin and cause of the fire. All parties acknowledge that

the fire was caused by some component of the subject Trailer’s

brake system and many attribute it to a small air leak at or

near the left brake chamber of the Trailer’s rear axle. The

experts dispute, however, which specific mechanism ultimately

caused the conflagration.

B. The Procedural History

Following the fire, WHOI made a claim under the Policy and

sent a notice of such to Ridgeway USA and ATS. Ridgeway USA

responded that it was entitled to the benefit of the Policy but

has yet to collect thereunder. On or about May 3, 2017, WHOI

entered into a Settlement Agreement and Mutual Release (“the

Settlement Agreement”) with Eagle and its underwriters whereby

the insurance companies agreed to pay WHOI $3.9 million for the

damage to the DSC. None of the defendants were included in the

settlement discussions nor the ultimate agreement.

Pursuant to the Settlement Agreement, WHOI assigned all

subrogated rights to the insurance companies to the extent of

the payments made by them. The agreement also acknowledged that

WHOI may have losses not covered by the Policy and damages in

excess of $3.9 million. It, thus, permitted WHOI to pursue

claims for its uninsured losses “as it sees fit”.

Two weeks later, Anderson Trucking Service, Inc.

(“Anderson”), a company affiliated with ATS, filed a complaint

for declaratory judgment in the United States District Court for

the District of Connecticut. See Anderson Trucking Servs., Inc.

v. Eagle Underwriting Group, Inc., et al., No. 3:17-cv-000817

(D. Conn.). Anderson named WHOI, the Museum, Ridgeway USA and

Eagle as defendants, seeking a declaration that 1) it is not

liable for any damage to the DSC or, in the alternative, 2) any

liability should be limited. That case was dismissed without

prejudice as to most defendants in August, 2018, for lack of

personal jurisdiction and voluntarily dismissed as to the

remaining defendants in December, 2020.

In the meantime, in November, 2017, WHOI brought this

action on its own behalf and as agent, trustee, assignee and/or

subrogee of all other interested parties who were damaged as a

result of the loss. WHOI sued ATS, the Museum, Ridgeway USA,

TCA and other defendants for, inter alia, breach of contract,

breach of bailment obligations, negligence and liability under

the Carmack Amendment, 49 U.S.C. § 14706. Over the course of

nearly four years, multiple answers, counter-claims, cross-

claims, third-party claims and motions have also been filed in

this case. Several defendants have been dismissed and, in

general, all remaining parties deny liability for the damage and

posit numerous affirmative defenses.

In January, 2021, this Court accepted and adopted a Report

and Recommendation of Magistrate Judge Boal recommending that

this Court join Eagle and the insurance companies as co-

plaintiffs in this lawsuit. The magistrate judge explained that

WHOI remains a real party in interest in this case because it

alleges uninsured losses beyond the $3.9 million payment made by

the insurance companies but that Eagle and its underwriters are

likewise real parties in interest because they have paid at

least part of the loss incurred by WHOI and have a right to

subrogation. Also in January, 2021, this Court entered summary

judgment in favor of STTC because nothing in the record

indicated that the tire change performed by STTC contributed to

the fire.

Since then, more than 10 summary judgment motions and

several motions to strike have been filed by various parties

which have been fully briefed and remain pending.

II. Plaintiffs’ Motions to Strike

As an initial matter, Eagle and its underwriters have moved

to strike the affidavits of Smaza and Hodge which have been

submitted in support of the summary judgment motions of Ridgeway

USA and the Museum. The plaintiffs contend that this Court

should refrain from considering those affidavits on summary

judgment because they contain hearsay statements and

impermissible expert opinion evidence and the defendants failed

to attach to the affidavits certain exhibits cited by the

affiants. Defendants respond that the affidavits are based

exclusively on the affiants’ personal observations, experience

and knowledge and plaintiffs have not been prejudiced by any

inadvertent omission of exhibits by defendants because the

omitted documents have been filed with other submissions.

This Court agrees with defendants and will, therefore, deny

plaintiffs’ motions to strike the affidavits of Hodge and Smaza.

See Fed. R. Civ. P. 56(e) (permitting courts to consider on

summary judgment affidavits that are “made on personal

knowledge, [] set forth such facts as would be admissible in

evidence, and [] show affirmatively that the affiant is

competent to testify to the matters stated therein.”); Bennett

v. Saint-Gobain Corp., 453 F. Supp. 2d 314, 324 n.22 (D. Mass.

2006) (“[A]ffidavits . . . are generally not admissible at trial

but may be considered at the summary judgment stage.”).

Turning to the motion of Eagle and its underwriters to

strike as untimely the supplemental expert report of Eggers,

this Court will also deny that motion. Defendants gave timely

notice of the application of English law, timely disclosed

Eggers’ initial expert report in August, 2020, and, more than 30

days before trial, supplemented that report in response to

criticisms raised by Eagle’s counter-motion for summary judgment

indicating that the initial report was incomplete. See Fed. R.

Civ. P. 26(a)(3)(B); 26(e). Furthermore, Eagle has identified

no specific prejudice that it will suffer if the supplemental

report is considered by this Court.

In any event, the supplemental report was submitted to help

this Court define the contours of English insurance law and Fed.

R. Civ. P. 44.1 permits courts to consider any relevant material

or source in determining foreign law, including expert

testimony. See BCCI Holdings (Luxembourg), Societe Anonyme v.

Khalil, 184 F.R.D. 3, 9 (D.D.C. 1990) (denying defendant’s

motion to strike the expert report of plaintiff’s English law

expert despite plaintiff’s failure to comply with Rule 26

because plaintiff had given notice of English law pursuant to

Rule 44.1). At this juncture, the Court finds no reason to

impose the onerous sanction of striking Eggers’ supplemental

expert report. See Brodbeck v. Massachusetts Dep’t of

Corrections, No. 18-cv-10855, 2021 WL 3131601, at *3 (D. Mass.

July 23, 2021) (“Motions to strike are generally disfavored in

practice.” (quotations and citations omitted)).

III. Objection to a Ruling of Magistrate Judge

Also pending before the Court are the objections by

defendant ATS and plaintiffs to a ruling of Magistrate Judge

Boal on TCA’s motion to preclude testimony of expert witness

Samuel “Duke” Drinkard. For the reasons that follow, this Court

will sustain the objection to the extent Magistrate Judge Boal

excluded all of Drinkard’s testimony but, otherwise, overrule

the objection and affirm the magistrate judge’s ruling.

In March, 2021, TCA moved to preclude the testimony of ATS

expert witnesses Stephen Harris (“Harris”) and Sammuel “Duke”

Dinkard (“Drinkard”). Magistrate Judge Boal heard oral argument

on those motions in May, 2021, and, soon thereafter, entered an

order denying the motion to preclude the testimony of Harris but

allowing the motion to preclude the testimony of Drinkard. ATS

and plaintiffs filed timely objections to that order as to

Drinkard in June, 2021.

Drinkard opines that the fire was caused by a leak in the

Trailer’s push-pull valve which ultimately caused the service

brakes on the Trailer’s rear axle to drag. In coming to that

conclusion, he did not initially inspect the Trailer but,

instead, reviewed copies of work orders, deposition testimony,

photographs taken during the inspection of the Trailer by other

experts and detailed schematics of the air brake system from the

Trailer’s manual. He was, then, deposed in November, 2020, and

TCA issued rebuttal expert reports in December, 2020. Only

after TCA filed its motions to preclude his testimony and for

summary judgment against WHOI and the Museum did Drinkard

conduct a “hands-on” testing of an exemplar Trailer. His

“supplemental” expert report of that analysis was disclosed in

April, 2021, which Magistrate Judge Boal found to be untimely

for failing to qualify as a supplemental disclosure under Fed.

R. Civ. P. 26(e). Thereafter, she concluded that Drinkard’s

initial opinion was unreliable because it was rendered before he

inspected the exemplar Trailer. Plaintiffs and ATS object to

both conclusions.

If a party timely objects to the non-dispositive rulings of

a magistrate judge on pretrial matters, the district judge must

modify or set aside any part of the disputed order that is

“clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a);

28 U.S.C. § 636(b)(1)(A). As another session of this Court has

found,

[a] respect for this standard is important, given the

pivotal role that magistrate judges play in overseeing the

conduct of the sort of complex pretrial discovery typified

by this case.

Gargiulo v. Baystate Health Inc., 279 F.R.D. 62, 64 (D. Mass.

2012).

The “clearly erroneous” standard requires the district

judge to accept the factual findings and conclusions of the

magistrate judge unless, after reviewing the entire record, the

district judge has a “strong, unyielding belief that a mistake

has been made”. Green v. Cosby, 160 F. Supp. 3d 431, 433 (D.

Mass. 2016 (citing Phinney v. Wentworth Douglas Hosp., 199 F.3d

1, 4 (1st Cir. 1999)). Meanwhile, under the “contrary to law”

requirement, the district judge reviews pure questions of law de

novo, see PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st

Cir. 2010), and factual findings for clear error, Phinney, 199

F.3d at 4. Mixed questions of law and fact invoke a sliding

scale of review pursuant to which

[t]he more fact intensive the question, the more

deferential the level of review (though never more

deferential than the clear error standard); the more law

intensive the question, the less deferential the level of

review.

In re IDC Clambakes, Inc., 727 F.3d 58, 64 (1st Cir. 2013)

(internal quotation marks omitted).

Here, the Court agrees with Magistrate Judge Boal that

Drinkard’s April, 2021, report should be excluded as untimely

because it fails to qualify as a supplemental disclosure under

Fed. R. Civ. P. 26(e)(1)(A) and, rather, constitutes a new

analysis conducted in order to “bolster” his opinion. See In re

Zofran (Ondansetron) Products Liability Litig., No. 15-md-2657,

2019 WL 5423907, at *3 (D. Mass. Oct. 23, 2019). Accordingly,

the “supplemental” disclosure and reference thereto will be

excluded.

As to the magistrate judge’s conclusion that Drinkard’s

expert opinion is insufficiently reliable under Daubert,

however, the Court disagrees. In reaching her conclusion,

Magistrate Judge Boal cited only the fact that Drinkard neither

inspected nor tested the subject Trailer or any of its

components. Missing from her analysis, however, is any mention

of Drinkard’s experience in truck maintenance and operation or

the sources and materials Drinkard did review which include work

orders, deposition testimony, photographs taken during the

inspection of the Trailer by other experts and detailed

schematics of the air brake system from the Trailer’s manual.

Because the First Circuit Court of Appeals has held that an

expert need not actually test a machine to render a reliable

opinion about that machine, cf. Quilez-Velar v. Ox Bodies, Inc.,

823 F.3d 712, 718–19 (1st Cir. 2016), this Court will reject the

ruling of the magistrate judge precluding Dinkard’s testimony in

its entirety.

In any event, TCA can challenge at trial the reliability of

Drinkard’s testimony through

vigorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof

[which] are the traditional and more appropriate means of

attacking shaky but admissible evidence.

See Daubert v. Merrell Dow Parm., Inc., 509 U.S. 579, 596

(1993).

IV. Motions for Summary Judgment

A. Legal Standard

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,

895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving

party to show, through the pleadings, discovery and affidavits,

“that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a).

A fact is material if it “might affect the outcome of the

suit under the governing law . . .” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

If the moving party satisfies its burden, the burden shifts

to the nonmoving party to set forth specific facts showing that

there is a genuine, triable issue. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986). The Court must view the entire record in

the light most favorable to the non-moving party and make all

reasonable inferences in that party's favor. O'Connor v.

Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is

appropriate if, after viewing the record in the non-moving

party's favor, the Court determines that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.

B. Application

1. The Value of the Submarine

Three of the remaining defendants have moved, by summary

judgment, to preclude WHOI from claiming that the value of the

DSC is more than $5 million. As reason therefor, the defendants

contend that, prior to the fire, WHOI repeatedly represented to

them and others that the DSC is worth that amount and WHOI

should, therefore, be estopped from now arguing for a higher

value. This Court agrees.

To succeed on a claim of promissory estoppel under

Massachusetts law, a plaintiff must show that

(1) a promisor makes a promise which he should reasonably

expect to induce action or forbearance of a definite and

substantial character on the part of the promisee, (2) the

promise does induce such action or forbearance, and

(3) injustice can be avoided only by enforcement of the

promise.

Rogatkin ex rel. Rogatkin v. Raleigh Am., Inc., 69 F. Supp. 3d

294, 301 (D. Mass. 2014) (quoting Neuhoff v. Marvin Lumber &

Cedar Co., 370 F.3d 197, 203 (1st Cir. 2004)). In this case,

the Court finds that injustice can be avoided only by enforcing

WHOI’s representation that the DSC is worth $5 million because,

as discussed below, the record shows the Museum, Ridgeway USA

and ATS each relied on that representation and would have taken

additional measures to limit their liability had they known the

DSC was worth more.

i. The Museum

With respect to the Museum, WHOI executed a Loan Agreement

with that defendant in which WHOI specifically stated in the

contract that the DSC’s value was “$USD5,000,000.00”. WHOI

asked the Museum to obtain cargo insurance for that amount and,

while negotiating the agreement, WHOI did not represent that the

submarine was worth anything other than $5 million. See Rev-Lyn

Contracting Co., 760 F. Supp. 2d at 168 (citing Tidewater Marine

Activities, Inc. v. American Towing Co., 437 F.2d 124 (5th Cir.

1970) (accepting a valuation of a vessel, in part, because it

was “corroborated by the independent negotiations between

plaintiff and [a third party] regarding the charter of the barge

when the parties stipulated an agreed value . . . for insurance

purposes”)).

In reliance thereon, the Museum arranged for Ridgeway USA

to obtain a $5 million insurance policy. When Ridgeway USA

secured a $6.5 million insurance policy, the Museum paid the

premium and WHOI accepted the Policy without complaint.

Finally, when the DSC caught fire, WHOI negotiated a settlement

with Eagle and its underwriters, to the exclusion of the Museum,

awarding WHOI $3.9 million under the Policy. In light of the

foregoing, it would be unjust to hold the Museum liable for up

to $60 million, the amount WHOI only now claims, after filing

this lawsuit, the DSC is worth. That is because it would put

the defendant in a worse position by having negotiated and paid

for the Policy than had it not done so now that WHOI has sued

the Museum seeking a recovery well-above the Policy limit.

Furthermore, because WHOI has already received $3.9 million

under the Policy and apparently expended only $1.25 million to

restore the DSC, awarding plaintiff a dramatically higher amount

would constitute a windfall at the defendants’ considerable

expense.

ii. Ridgeway USA

Because Ridgeway USA acted as the Museum’s agent pursuant

to a written power of attorney in arranging for the shipment and

insurance coverage of the DSC and it joins the Museum’s motion

for summary judgment to the extent it seeks an order that, inter

alia, the value of the DSC is no more than $5 million, this

Court concludes that, for the same reasons, WHOI is estopped

from claiming against Ridgeway USA that the DSC is worth more

than $5 million. Indeed, the only information about the DSC’s

value that Ridgeway USA had came from the representations made

by WHOI. See Chambers & Assoc. v. Trans World Airlines, 533 F.

Supp. 426, 429 (S.D.N.Y. 1982) (“It is only just that the loss

should fall on the one who with knowledge of the value involved,

chose to take the chance.”). Ridgeway relied on those

representations when it directed GTL to obtain a $5 million

insurance policy to cover the value of the submarine which has

already inured to WHOI’s benefit.

To the extent plaintiffs argue that Ridgeway USA has waived

any estoppel-based affirmative defense because it failed to

raise such a defense in its initial pleadings, the Court is

underwhelmed. Notwithstanding Ridgeway USA’s failure to plead

the defense in its answer, plaintiffs in this case have not been

prejudiced by the omission. Agri-Mark, Inc. v. Niro, Inc., 214

F. Supp. 2d 33, 43 (D. Mass. 2002) (relaxing the strictures of

Rule 8(c) because “no prejudice has resulted from its absence in

the pleadings and fairness dictates that waiver ought not be

imposed”). Other defendants pled the defense in their answers

and the argument was raised before this Court and all the

parties at a scheduling conference more than two years ago, in

June, 2019. Thus, plaintiffs certainly had “notice of the

defense” and, therefore had “a chance to develop evidence and

offer arguments to controvert [it]”. Knapp Shoes, Inc. v.

Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st Cir. 1994).

iii. ATS Specialized

Finally, as to ATS, the trucking company explains that it

contracted with Ridgeway USA to transport the DSC from Woods

Hole, Massachusetts to Baltimore, Maryland for the sum of

$1,600. In discussing the contract, Hodge, a representative of

Ridgeway USA, informed ATS that the shipment would need to be

insured for $5 million, to which ATS responded that it could not

insure the submarine for that amount. Thereafter, Hodge

notified ATS that Ridgeway USA would obtain the cargo insurance

for the value of the DSC, i.e. $5 million.

ATS contends that its decision to transport the DSC was

dependent on its understanding that the vessel was worth no more

than $5 million. First, ATS asserts, and WHOI does not dispute,

that it would not have undertaken the shipment had Ridgeway USA

not obtained the $5 million cargo insurance policy and/or if the

vessel was worth more than that. Indeed, ATS claims that, based

on the purported value of the DSC, it reasonably understood that

even if its standard limitation of liability did not apply, its

liability would not exceed that amount. Cf. 49 U.S.C. §

14706(c)(1)(A) (“[L]iability of the carrier for such property

[may be] limited to a value established by written or electronic

declaration of the shipper”). Finally, ATS proclaims that it

would have charged more than a mere $1,600 in freight charges

had the company known that it could face liability exceeding $45

million as WHOI now claims. See Schweitzer Aircraft Corp. v.

Landstar Ranger, Inc., 114 F. Supp. 2d 199, 203 (W.D.N.Y. 2000)

(noting that it was unreasonable for a shipper to assume that a

motor carrier would take on unlimited liability in exchange for

a few thousand dollars in shipping charges).

iv. Conclusion

Accordingly, unless superseding cause is later shown,

plaintiffs are estopped from arguing hereafter that the DSC is

worth more than $5 million. In any event, it would amount to

pure speculation on the part of a jury to determine that the

value of the equipment in question was anything other than $5

million. See Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264

(1946) (“[E]ven where the defendant by his own wrong has

prevented a more precise computation, the jury may not render a

verdict based on speculation or guesswork.”). First, there is

no recorded fair market value for the vessel because it is an

experimental submarine that was gifted to WHOI in 2013. Rev-Lyn

Contracting Co. v. Patriot Marine, LLC, 760 F. Supp. 2d 162, 168

(D. Mass. 2010) (“Evidence of value other than contemporary

sales can be used only when it is shown that a vessel’s market

value cannot be reasonably established.”). Second, although

WHOI submits expert reports opining that the value of the vessel

was upwards of $60 million pre-fire, in rendering that opinion,

the experts admit that “little precedence can be cited which

would indicate [an] appropriate value” for the vessel. Finally,

in contrast with those reports, the record shows that WHOI

ultimately spent only $1.25 million to repair the DSC and its

General Counsel believed that, prior to the fire, the vessel was

losing value daily, was “over-insured” at $6.5 million and was

worth no more than $5 million.

To the extent the Museum, Ridgeway USA and ATS also seek to

limit the entirety of their potential liability to $1.1 million,

i.e. $5 million minus the $3.9 million already paid by the

insurance companies, however, their motion will be denied

because there remains genuine issues of material fact as to the

total damages suffered by WHOI and to the insurer plaintiffs’

right to subrogation.

2. ATS Specialized, Inc.

ATS has also moved for summary judgment against WHOI, the

Museum and Ridgeway USA, requesting that judgment be entered in

its favor as to all claims and cross-claims asserted against it.

i. Preemption

a. The Carriage of Goods Over Sea Act

The first argument of ATS is that the claims against it

must be dismissed because its liability is governed by the

Carriage of Goods Over Sea Act (“COGSA”), 46 U.S.C. § 30701, et

seq., which applies a one-year statute of limitations. Because

WHOI filed this lawsuit more than two years after the fire, ATS

maintains that WHOI’s claims against it are time-barred.

COGSA governs “contract[s] for carriage of goods between a

foreign port and a port of the United States”. Greenpack of

Puerto Rico, Inc. v. Am. President Lines, 684 F.3d 20, 23 (1st

Cir. 2012). On its terms, the statute covers only “the interval

when the cargo is at sea” and thus,

[w]ithout more, damage that occur[s] on the dock during the

land portion of [a] shipment’s journey . . . would escape

COGSA’s statute of limitations.

Id.

By clear and express stipulation in a through bill of

lading or waybill, however, parties to a shipping contract may

agree to extend COGSA’s terms, defenses and limitations to an

entire, multimodal shipment. Norfolk Southern R.R. Co. v. Kirby,

543 U.S. 14, 29 (2004) (“COGSA permits [the parties] to extend

the default rule to the entire period in which [the goods] would

be under [the carrier’s] responsibility, including the period of

the inland transport.”). Only upon such an agreement will COGSA

cover “both the ocean and inland portions of the transport”. See

Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89,

94 (2010).

In this case, ATS contends that COGSA governs its inland

transport of the DSC because it was hired to deliver the DSC to

Wallenius as part of a single, through shipment and Wallenius’

standard waybill (which never issued) includes a provision

expressly extending COGSA to all modes of transportation

utilized during the through shipment. This Court finds that

argument unavailing. Essentially, Wallenius never issued any

waybill because the submarine caught fire before it arrived at

the Port of Baltimore. Nor did it or Ridgeway USA issue any

other document containing contractual language expressly

extending the application of COGSA to ATS. Absent such a

contract, COGSA is inapplicable to the inland transport of the

DSC by ATS.

The Court is also unpersuaded by the argument of ATS that

Wallenius’ unissued, standard ocean waybill governs this

dispute. Although courts have concluded that unissued bills of

lading may be enforceable in certain circumstances, those

circumstances are absent here. Specifically, other courts have

held that parties may be bound by the terms of an unissued

standard bill of lading or waybill

where a shipper has common business experience with

carriers such that it should know a carrier will issue a

custom bill of lading . . . [and the] shipper has knowledge

as to the contents of a carrier’s standard bill of lading.

OOO Garant-S v. Empire United Lines Co., No. 11-cv-1324, 2013 WL

1338822, at *3 (E.D.N.Y. Mar. 29, 2013). Here, however, ATS has

proffered no evidence showing that the parties had any prior

dealings with Wallenius and/or any other reason to know the

contents of its standard waybill. For that reason, the parties

are not bound by the unissued bill’s terms.

In any event, the record demonstrates that the carriage of

the DSC was not intended to be a single, through shipment. See

Reider v. Thompson, 339 U.S. 113, 117 (1950) (“If the various

parties dealing with this shipment separated the carriage into

distinct portions by their contracts, it is not for courts

judicially to meld the portions into something they are not.”).

In fact, ATS issued its own domestic bill of lading which made

no mention of COGSA and covered only the land portion of the

shipment. Furthermore, that portion of the transport was

arranged and paid for by Ridgeway USA while the ocean transport

was donated by Wallenius to the Museum. See Custom Rubber Corp

v. ATS Specialized, Inc., 633 F. Supp. 2d 495, 504-05 (N.D. Ohio

2009) (noting that separate bills of lading, invoices and

arrangements suggest that a certain transport of goods is not a

through shipment). Given those facts, no reasonable jury could

find that the land leg of the shipment was anything other than a

separate and distinct transport falling outside of COGSA’s

scope.

b. The Carmack Amendment

ATS contends, in the alternative, that its liability falls

within the scope of the Carmack Amendment to the Interstate

Commerce Act, 49 U.S.C. § 14706 (“the Carmack Amendment” or “the

Amendment”), which governs the liability of carriers for lost or

damaged goods and preempts state law claims relating to the

same. See Rini v. United Van Lines, Inc., 104 F.3d 502, 503 (1st

Cir. 1997). A carrier can be “a motor carrier, a water carrier,

and a freight forwarder”. § 13102. Because it is undisputed

that ATS was operating as a “motor carrier” pursuant to an

interstate shipment at the time of the fire, the Court agrees

that its liability, if any, will be determined by traditional

Carmack Amendment principles. See § 13501; see also § 13102

(defining motor carrier as the “person providing motor vehicle

transportation for compensation”).

The purpose of the Carmack Amendment is

to establish uniform federal guidelines designed in part to

remove the uncertainty surrounding a carrier’s liability

when damage occurs to a shipper’s interstate shipment.

Rini, 104 F.3d at 507 (citations omitted). It generally

preempts state common law or statutory causes of action premised

upon the liability of an interstate motor carrier for damages or

loss to goods being transported via interstate commerce. Sokhos

v. Mayflower Transit, Inc., 691 F. Supp. 1578, 1581 (D. Mass.

1988). In other words, the Carmack Amendment preempts all state

laws that “in any way enlarge the responsibility of the carrier

for loss or at all affect the ground [or measure] of recovery”.

Rini, 104 F.3d at 506; see also Noble v. Wheaton Van Lines, No.

09-cv-10564, 2010 WL 3245421, at *6 (D. Mass. Aug. 17, 2010)

(“With limited exceptions, the Carmack Amendment provides the

exclusive cause of action against a carrier for loss or damage

to goods that occurred as a result of interstate transport.”

(citation omitted)).

Thus, any state law claim that imposes liability on a

carrier based on 1) the damage or loss of goods, 2) the claims

process or 3) the payment of claims will be preempted by the

Amendment. It does not, however, preempt state law claims based

on “activities [by a carrier] . . . not undertaken in the course

of transporting goods”. Mesta v. Allied Van Lines Inter., Inc.,

695 F. Supp. 63, 65 (D. Mass. 1988).

Because the Carmack Amendment preempts all state law claims

that enlarge the responsibility or liability of a carrier with

respect to a damaged shipment, the claims of WHOI for negligence

and breach of bailment and the cross-claims of the Museum for

indemnification and contribution are preempted. See Rini, 104

F.3d at 506; see also 5K Logistics, Inc. v. Daily Exp., Inc.,

659 F.3d 331, 337 (4th Cir. 2011) (“The Carmack Amendment

clearly preempts any state statutory or common law claim for

indemnification”). So too are the Chapter 93A claim and cross-

claim in this case because the ATS conduct complained of

consists solely of its actions taken during the claims process

as they relate to the loss to the DSC. See Rini, 104 F.3d at 506

(“Preempted state law claims, therefore, include all liability

stemming from . . . the claims process.”). In particular, the

underlying alleged unfair conduct of which the Museum and WHOI

complain is ATS’s effort to limit its liability by relying on

the terms and conditions of bills of lading that were apparently

non-existent at the time of the fire and/or issued only after

the fire.

With respect to Ridgeway USA, however, its ability to bring

cross-claims against ATS for indemnification and contribution

pursuant to the Carmack Amendment depends on its classification

as either a “freight forwarder” or a “broker” under the statute

which remains subject to dispute.1 See 49 U.S.C. § 14706(b)

(entitling the carrier (e.g. freight forwarder) issuing the bill

of lading “to recover from the carrier over whose line or route

the loss or injury occurred”); 5K Logistics, 659 F.3d at 337

(holding that only carriers, but not brokers, can seek

indemnification under the Amendment); see also JAS Forwarding

(USA), Inc. v. Owens Truckmen, Inc., No. 17-cv-03589, 2017 WL

5054715, at *6 (E.D.N.Y. Nov. 1, 2017) (“[T]he difference

between a carrier and a broker is often blurry, and it is

apparent from the case law that the carrier/broker inquiry is

inherently fact-intensive and not well suited to summary

judgment.” (internal marks and citation omitted)). Indeed, the

issue is the subject of Ridgeway USA’s motion for summary

judgment against WHOI which remains pending. See Docket No. 486.

Accordingly, at this juncture, ATS is not entitled to summary

judgment as to Ridgeway USA’s cross-claims for indemnification

and contribution.2

1 Because Ridgeway USA concedes that it cannot support its cross-

claim against ATS for spoliation of evidence under Massachusetts

law, that cross-claim will be dismissed from this action.

2 If Ridgeway USA is deemed a freight forwarder under the Carmack

Amendment, it would not be precluded from pursuing that claim

under the Massachusetts’ door-closing statute because it has

raised the indemnification claim to defend itself in these

proceedings, as permitted by M.G.L. c. 156D, § 15.02(e).

ii. Filing Requirements

ATS further asserts that it is entitled to judgment as to

WHOI’s claim under the Carmack Amendment on the ground that WHOI

failed to satisfy the filing requirements set forth in 49 C.F.R.

§ 370.3. Under the Carmack Amendment, a carrier can limit the

period within which a shipper must properly file a claim against

the carrier for cargo damage. See 49 U.S.C. § 14706(e)(1). To

properly file a claim, a shipper must comply with the minimum

filing requirements set forth in Interstate Commerce Commission

regulation 49 C.F.R. § 370.3(b) which requires a shipper to

provide the carrier with a written or electronic communication

that, inter alia, makes a “claim for the payment of a specified

or determinable amount of money”. A claim for a specified

amount must demand an exact dollar value and be related to the

shipper’s actual damage. See Bowman v. Mayflower Transit, LLC,

914 F. Supp. 2d 47, 50 (D. Mass. 2012).

ATS contends that WHOI failed to file a timely claim under

the Carmack Amendment because, although plaintiff provided it

with a written claim within the time specified in ATS’ bill of

lading, that claim failed to disclose a “specified or

determinable amount of money”. Specifically, in WHOI’s claim,

it sought from ATS approximately $8 million. Because WHOI now

claims damages “vastly exceeding that figure”, ATS asserts that

WHOI’s initial claim has fallen out of compliance with the

requirements set forth in § 370.3. WHOI disagrees and urges

this Court to deny ATS’ motion.

This Court concludes that WHOI’s initial demand of

approximately $8 million satisfies the filing requirements set

forth in 49 C.F.R. § 370.3(b) because it was based upon the

estimated cost to repair the damage to the DSC that WHOI had in

its possession at the time it filed its claim. In fact, WHOI

attached to its claim a document showing a post-fire repair

estimate prepared by Edge Innovations that disclosed predicted

repair costs of approximately $8 million. That WHOI has since

made claims for damages well-above that amount is irrelevant.

See Delphas Sys., Inc. v. Mayflower Transit, Inc., 54 F. Supp.

2d 60, 65 (D. Mass. 1999) (“The right to amend a complaint to

reflect a different claim for damages is wholly separate from

the right to bring a suit when a claim sufficient to allow

settlement [under § 370.3] was not made in a timely fashion.”).

iii. Liability

With respect to its liability under the Carmack Amendment,

ATS contends that it either has none because WHOI has failed to

establish a claim thereunder or that it has successfully limited

its liability in its bill of lading.

In order to establish a prima facie case under the Carmack

Amendment, a plaintiff must prove 1) delivery to the carrier in

good condition, 2) arrival in damaged condition and 3) the

amount of damages caused by the loss. Missouri Pacific R.R. Co.

v. Elmore & Stahl, 377 U.S. 134, 137–38 (1964). Thereupon, the

burden of proof shifts to the carrier to show

both that it was free from negligence and that the damage

to the cargo was due to one of the excepted causes

relieving the carrier of liability.

Id. at 138.

The Carmack Amendment imposes liability on the carrier for

“actual loss or injury to the property” unless the carrier

limited its liability pursuant to 49 U.S.C. § 14706(c)(1)(A).

See id. (“[L]iability of the carrier for such property [may be]

limited to a value established by written or electronic

declaration of the shipper”). To limit liability, a carrier

must 1) maintain an approved tariff, 2) issue a bill of lading

prior to shipment and 3) give the shipper a reasonable

opportunity to choose between levels of liability, provided that

4) “the shipper is a substantial commercial enterprise capable

of understanding the agreements it signed”. Hollingsworth & Vose

Co. v. A-P-A Transp. Corp., 158 F.3d 617, 621 (1st Cir. 1998).

Here, with respect to WHOI’s prima facie case, ATS

challenges only the third factor, namely, that WHOI failed to

meet its burden to establish the amount of damages. ATS

contends, specifically, that WHOI has submitted no proof of the

value of the DSC in its post-fire and post-repair condition and,

therefore, cannot prove the amount of its damages. Because this

Court, just now, has estopped WHOI from arguing that the DSC is

worth more than $5 million, however, it will afford WHOI an

opportunity to respond to that ruling with a new assessment of

its total damages.

Turning to whether ATS properly limited its damages by

virtue of its bill of lading, it is undisputed that ATS

maintained an approved tariff. The parties disagree, however,

whether ATS issued its bill of lading before or after the fire

and, therefore, whether it afforded WHOI, the Museum and/or

Ridgeway USA a “fair opportunity” to “opt for more coverage in

exchange for a higher rate”. Hollingsworth & Vose Co., 158 F.3d

at 621 (internal quotations omitted). Because that is a fact-

intensive inquiry that remains heavily contested, summary

judgment will not enter on this matter.

3. TravelCenters of America

i. Against WHOI

TCA moves for summary judgment against WHOI on its

negligence claim, contending that the plaintiff has failed to

proffer evidence showing that TCA breached its duty of care

and/or caused the fire. As reason therefor, TCA asserts that

none of the experts can determine conclusively whether the

condition causing the fire existed in the subject Trailer at the

time TCA serviced and inspected the vehicle. In support, TCA

cites to the prior Memorandum and Order entered by this Court

dismissing STTC as a party from this lawsuit. See Docket No.

444. In dismissing STTC, this Court explained that WHOI was

unable to raise the causal connection between the STTC tire

change and the fire beyond mere speculation because the record

showed that WHOI’s experts 1) are unsure when the condition

causing the fire arose and whether it was present at the time of

the tire change (which took place two weeks after the TCA

service) and 2) attribute the fire to an air leak in the rear-

axle brake chamber, an area completely separate and distinct

from where STTC’s tire technician replaced the flat tire.

WHOI responds that, inter alia, the actions and testimony

of the TCA service technician demonstrate (at the very least) a

genuine issue of material fact that TCA caused the fire because,

1) less than three weeks before the fire, the Trailer was sent

for TCA service with a complaint of an air leak, 2) the TCA

service technician was unable to identify any such air leak and

3) WHOI’s experts opine that the cause of the fire was an air

leak at or near the rear axle which is the exact location the

TCA service technician inspected and serviced. Furthermore,

WHOI contends that a reasonable jury could find that TCA’s

service technician breached the applicable standard of care

because he admitted in his deposition testimony that he failed

to follow proper procedure to identify the complained of-air

leak.

Liability for negligence requires proof that the defendant

1) owed a legal duty to the plaintiff, 2) which the defendant

breached, thereby 3) causing 4) injury to the plaintiff. Davis

v. Westwood Group, 652 N.E. 2d 567, 569 (Mass. 1995). Proof of

causation requires a demonstration not merely of cause in fact

but also of proximate or legal cause, i.e. that the plaintiff’s

injury was “within the reasonably foreseeable risk of harm

created by defendant’s negligent conduct”. Staelens v. Dobert,

318 F.3d 77, 79 (1st Cir. 2003) (citations omitted).

Here, the Court agrees with WHOI that, viewing the record

in its favor, a reasonable jury could find that the TCA service

technician breached his standard of care and, as a result,

caused the fire. Indeed, it is apparently undisputed that 1) an

air leak was reported in the Trailer when it arrived at TCA on

July 7, 2015, 2) the TCA technician failed to identify the air

leak or use standard procedures in attempting to do so and 3) an

air leak contributed to the fire that arose less than three

weeks later. Thus, the Court will not enter summary judgment in

favor of TCA with respect to WHOI’s negligence claim. See Jupin

v. Kask, 849 N.E.2d 829, 835 (Mass. 2006) (“We generally

consider . . . whether a defendant exercised reasonable care,

the extent of the damage caused, and whether the defendant’s

breach and the damage were causally related [] to be the special

province of the jury.”).

ii. Against the Museum

TCA also moves for summary judgment against the Museum with

respect to the latter’s cross-claim for indemnification. WHOI

asserts two claims against the Museum: breach of contract (Count

XII) and breach of bailment obligations (Count XIII). The

Museum, in-turn, has filed a cross-claim against all co-

defendants for “indemnity and indemnification” in the event any

liability is imposed on the Museum for any loss or damage to the

DSC. TCA contends that summary judgment must enter in its favor

with respect to that cross-claim because there is no

contractual, agency or other particularized relationship between

the two parties as required for indemnification under

Massachusetts law. As such, TCA argues that the Museum has no

cognizable basis for its indemnity claim against the cross-

defendant.

The Museum responds that no special relationship is

necessary for its cross-claim to succeed. It concedes that it

is not seeking from TCA contractual indemnification but contends

that it can establish a right to tort-based indemnification in

connection with WHOI’s breach of bailment claim. First, the

Museum asserts that, in a Report and Recommendation which this

Court adopted, Magistrate Judge Boal acknowledged that breach of

bailment claims may be brought in contract and/or tort, thereby

permitting contract- and tort-based indemnification. Second,

the Museum maintains that its tortious indemnification cross-

claim does not require proof of a pre-existing relationship

between the parties because the claim arises under Connecticut

(rather than Massachusetts) law which does not require proof of

a pre-existing relationship between an indemnitee and an

indemnitor.

TCA rejoins that 1) since the Report and Recommendation

entered, WHOI has clarified that its claims against the Museum

are contract based, 2) the Museum thus brings against TCA only a

claim for contractual indemnity which fails due to a lack of

contractual relationship between the parties and, in any event,

3) the Museum has waived any choice-of-law argument because,

prior to the instant opposition, the parties and the Court have

applied Massachusetts law. Indeed, this is the first pleading

in which the Museum has argued that Connecticut law should apply

to any of its cross-claims.

A right to indemnification may arise under three theories,

namely, 1) an express agreement, 2) a contractual right implied

from the nature of the relationship between the parties and 3) a

common law tort-based right. See Araujo v. Woods Hole, Martha’s

Vineyard, Nantucket Steamship Auth., 693 F.2d 1, 2 (1st Cir.

1982); see also Clark v. Castaldi, No. cv0750079215, 2008 WL

803637, at *2 (Super. Ct. Conn. Mar. 4, 2008) (recognizing two

kinds of indemnification under Connecticut law: contractual and

tortious).

As against TCA, this Court concludes that the Museum’s

cross-claim for indemnification must be supported by the second

theory, a contractual right, because all of WHOI’s claims

against the Museum are contract-based. See Warsahw v. QBE Ins.

Corp., 2012 U.S. Dist. LEXIS 118507, at *19 (D. Mass. Aug. 22,

2012) (“[T]he Court is aware of [no case] in which a common law

right to indemnity has been recognized in a breach of contract

case.”); Clark, 2008 WL 803637, at *2 (“Tortious indemnification

is an action that arises [only] between two tortfeasors.”).

Indeed, in January, 2021, WHOI filed a pleading expressly

stating that

all of the Plaintiff’s claims against the [Museum] are

contract based – breach of contract and breach of bailment.

The Museum recognizes that fact in its motion for summary

judgment against WHOI. See Docket No. 476-1 (“WHOI has expressly

stated that this cause of action[, i.e. breach of bailment,] is

a contract-based cause of action”). Although a breach of

bailment claim may, generally, sound in both contract and tort,

WHOI’s breach of bailment claim against the Museum in this case

is clearly contract-based.

Accordingly, because no contractual relationship exists

between the two parties, and the Museum concededly is not

pursuing a contract-based indemnification cross-claim against

TCA, summary judgment will enter in favor of TCA. See Kelly v.

Dimeo, Inc., 581 N.E.2d 1316, 1317 (Mass. Appt. Ct. 1991)

(“Under Massachusetts law, a contract-based right to

indemnification exists only if there is a binding contract

between indemnitor and indemnitee.”); see also Danbury Bldgs.,

Inc. v. Union Carbide Corp., 963 F. Supp. 2d 96 (D. Conn. 2013)

(“Under Connecticut law, to state a contract-based

indemnification claim, the claimant must allege either an

express or implied contractual right to indemnification.”

(internal marks omitted)). The Museum’s indemnification cross-

claim against TCA will, therefore, be dismissed.

4. Insurance Coverage

Both Ridgeway USA and the Museum contend that they qualify

as “insureds” under the Policy and are entitled to its benefits

and protection from claims in subrogation. Plaintiffs disagree

and urge this Court to deny the defendants’ request to declare

them so because, inter alia, reasonable jurors could disagree as

to whether GTL intended for Ridgeway USA and/or the Museum to be

covered by the Policy and whether either defendant has a

cognizable insurable interest under it.

As a threshold matter, this Court concludes that English

law properly governs the Policy because the Policy expressly

provides that “[t]his insurance is subject to English law and

practice” and no party has presented any other law which should

govern. When determining the contours of foreign law, federal

courts have wide discretion pursuant to Fed. R. Civ. P. 44.1. A

court “may consider any relevant material or source” and is

permitted, but not required, to conduct its own research. Fed.

R. Civ. P. 44.1; Mackley v. Sullivan & Liapakis, P.C., No. 98-

cv-8460, 2001 U.S. Dist. LEXIS 21723, at *10–11 (S.D.N.Y. Dec.

27, 2001). It can also direct the parties to brief a particular

question with respect to the relevant foreign law and/or demand

a more “complete presentation [of that law] by counsel”. See

Mackley, 2001 U.S. Dist. LEXIS 21723, at *11.

To help this Court discern the contours of English

insurance law, the Museum and Ridgeway USA have proffered the

opinion of expert Peter MacDonald Eggers (“Mr. Eggers”), a

barrister and Queen’s Counsel in England. Plaintiffs have

proffered no expert in rebuttal. According to Mr. Eggers,

English law dictates that a party may become an insured under an

insurance policy in one of three ways, namely,

1) where the party is named as an insured in the policy;

2) where the party comes within a descriptive class of

insureds; or

3) where the named insured enters into the insurance

contract on behalf of the party (whether as a disclosed or

undisclosed principal), even if the named insured also

enters into the contract on its own behalf.

A party can fall within the second or third categories if, at

the conclusion of the insurance contract, it is determined that

the named insured 1) was authorized to enter into the insurance

contract on behalf of and 2) intended to place the insurance for

the benefit of that party. See National Oilwell (UK) Ltd. v.

Davy Offshore Ltd. [1993] 2 Lloyd’s Rep. 582, 596–97.

Moreover, pursuant to section 6(1) of the Marine Insurance

Act 1906 (“the Act”), an insured party is entitled to the

benefits of an insurance policy only if it has an insurable

interest at the time of the loss. Section 5 of that Act defines

an insurable interest as an interest in a marine adventure which

includes:

any legal or equitable relation to the adventure or to any

insurable property at risk therein, in consequence of which

he may benefit by the safety or due arrival of insurable

property, or may be prejudiced by its loss, or by damage

thereto, or by the detention thereof, or may incur

liability in respect thereof.

Even if this Court were to rely on the legal principles

outlined by the English law expert proffered by the Museum and

Ridgeway USA, this Court finds that there remains genuine issues

of material fact as to whether either party is an insured under

the Policy. Specifically, the parties dispute whether GTL

intended for the Museum and Ridgeway USA to be deemed insureds

under the Policy. Cf. Sawyer v. United States, 76 F. Supp. 3d

353, 359 (1st Cir. 2015) (explaining that the resolution of

ambiguity in a contract turns on the parties’ intent which “is a

question of fact for a jury”).

Ridgeway USA and the Museum have proffered affidavits of

the individuals involved in purchasing the Policy stating that

they “expected” both to be covered thereunder. Curiously,

although Margo Blanco, the General Manager of GTL, now states

that expectation, when negotiating for the Policy, she never

asked that either Ridgeway USA or the Museum be named as

insureds. Rather, she instructed only that GTL be named as the

insured, WHOI as the shipper and the Museum as consignee.

Furthermore, contrary to Becky Hodge’s statement in her

affidavit that she, too, expected both parties to be covered by

the Policy, she testified in her deposition that she did not

expect that the Policy would name the Museum as an insured and

believed, instead, that WHOI was the named insured. Finally, in

yet another deposition, a representative of Eagle testified

that, at the time its underwriters issued the Policy, he “didn’t

know Ridgeway existed”.

Evidently, the determination of whether Ridgeway USA and

the Museum are covered by the policy turns on intent which

requires an evaluation of the weight and credibility of the

testimony and evidence in connection with the intent of the

named insured, i.e. GTL. Because that evaluation is uniquely

within the province of the trier of fact, summary judgment as to

whether the Museum and Ridgeway USA are insureds under the

subject Policy is unwarranted at this juncture. See McConaghy v.

Sequa Corp., 294 F. Supp. 2d 151, 161 (D.R.I. 2003) (“A judge

deciding [a summary judgment] motion should not invade the

province of the trier of fact by weighing the evidence or making

credibility determinations.”).

ORDER

For the foregoing reasons,

- The motion of Ridgeway International USA, Inc. (“Ridgeway

USA”) for “partial” summary judgment against Eagle

Underwriting Group, Inc. and its underwriters (Docket

Nos. 423) is DENIED;

- The motion of TravelCenters of America (“TCA”) for

summary judgment on the indemnification cross-claim of

the Australian National Maritime Museum (“the Museum”)

(Docket No. 445) is ALLOWED;

- The motion of ATS Specialized, Inc. (“ATS”) for summary

judgment on all causes of action of plaintiff Woods Hole

Oceanographic Institution (Docket No. 450) is,

o with respect to Counts II, III & IV, ALLOWED; but

o otherwise, DENIED;

- The motion of ATS for “partial” summary judgment on

limitation of liability (Docket No. 453) is,

o to the extent ATS seeks to estop WHOI from claiming

that the submarine is worth more than $5 million,

ALLOWED; but

o otherwise, DENIED;

- The motion of ATS for summary judgment on Ridgeway USA’s

cross-claims (Docket No. 455) is,

o with respect to the third cross-claim for spoliation

of evidence, ALLOWED; but

o otherwise, DENIED;

- The motion of ATS for summary judgment on cross-claims of

the Museum (Docket No. 457) is ALLOWED;

- The motion of the Museum for “partial” summary judgment

(part, but not all, of Docket No. 476), in which Ridgeway

USA joins (Docket No. 525) is,

o to the extent the Museum seeks an order estopping

WHOI from arguing that the subject submarine is

worth more than $5 million, ALLOWED;

o to the extent it seeks to limit all damages to $1.1

million, DENIED; but

o otherwise, held under advisement;

- The motion of the Museum for “partial” summary judgment

that subrogated claims cannot be pursued against it

(Docket No. 481), in which Ridgeway USA joins (Docket No.

522) is, DENIED;

- The motion of TCA for summary judgment on plaintiffs’

claim against it (Docket No. 495) is DENIED;

- The motions of Eagle Underwriting Group, Inc., et al. to

strike (Docket Nos. 556, 557, 558, 559 & 650) are DENIED;

- The objections of ATS (Docket No. 661) and Eagle

Underwriting Group, Inc., et al. (Docket No. 662) to the

ruling of Magistrate Judge Jennifer C. Boal precluding

the testimony of Samuel “Duke” Drinkard (part, but not

all, of Docket No. 648) are,

o with respect to the preclusion of the expert’s

testimony in its entirety, SUSTAINED, but

o otherwise, OVERRULED;

To the extent the parties seek attorneys’ fees, this Court

finds those requests premature and, at this juncture, they are

DENIED without prejudice. See Formulatrix, Inc. v. Rigaku

Automation, Inc., 344 F. Supp. 3d 410, 432 (D. Mass. 2018)

(“[T]his court awaits the final adjudication on the merits

before it will entertain requests for attorneys’ fees.”

(internal citation omitted)).

All other motions are held under advisement.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated August 20, 2021