United States District Court, S.D. Florida
OMNIBUS ORDER ON MOTIONS FOR SUMMARY
G. COOKE United States District Judge
an admiralty action stemming from the partial submersion of a
yacht at a boatyard on the Miami River. Plaintiff Kol
B'Seder, Inc. (“Kol B'Seder”) brings suit
against Defendant Certain Underwriters at Lloyd's of
London subscribing to Certificate No. 154766 under Contract
No. B0621MASRSWV15BND (“Underwriters”) alleging
breach of insurance contract, and against Defendant
Glass-Tech Corporation (“Glass-Tech”) alleging
breach of contract, breach of warranty of workmanlike
performance, and negligence. (ECF No. 76 ¶ 1). I have
jurisdiction under 28 U.S.C. § 1333.
are (1) Certain Underwriters' Motion for Final Summary
Judgment (ECF No. 66), and (2) Glass-Tech's Motion for
Summary Judgment Against Plaintiff & Motion for Summary
Judgment Against Counter-Defendant (ECF No. 69). For the
reasons that follow, I grant the Motions.
B'Seder bought the M/Y Sababa, a now
eighteen-year-old motor yacht, in 2002. (ECF No. 76 ¶ 2;
ECF No. 53-1 at 15, 17). It did so planning eventually to
offer charters to and from the Bahamas. (ECF No. 53-1 at
43-45). In the years following the purchase, Kol
B'Seder's principal owner, Noreen Sablotsky, docked
the yacht at her waterfront home (Id. at 62-63) and
operated it in and around Biscayne Bay, the Miami River and,
occasionally, the Bahamas. (Id. at 16). During the
period relevant to this lawsuit, Kol B'Seder insured the
vessel through Underwriters. (ECF No. 79-1).
to the Sababa's partial submersion, Sablotsky
did not know how often a vessel should undergo routine
maintenance or be hauled out of the water for
repairs.(Id. at 170-74). But she claims
that someone checked the Sababa's engines and
bilge systems weekly (Id. at 19, 116, 119), and that
a scuba diver cleaned the yacht's hull
monthly. (Id. at 33). Despite those
efforts, the passage of time was not kind to the
Sababa. In 2008, she had engine trouble that took
two years to fix. (Id. at 39). Also in 2008, the
vessel required work on its rudder. (Id. at 132-34;
ECF No. 68-2 at 16-18). In 2012, the vessel again had engine
problems that required extensive repair work. (ECF No. 53-1
at 41, 135-40). It had repairs to its hull in April 2013
(Id. at 34-43; 135-40),  and in August 2015,
Sablotsky's diver told his boss the yacht needed a
haul-out. (ECF No. 68-4 at 17-18, 38).
in March 2016, Sablotsky claims the Sababa touched
bottom in a channel leading to Biscayne Bay. (Id. at
63). Sablotsky says she did not feel an impact sufficient to
suspect damage, and surmised that the vessel's propellers
had simply kicked up mud. (Id. at 23-26, 63, 69,
71-72). She therefore did not stop to determine whether
touching bottom affected the integrity of the hull.
(Id. at 70-71). She also did not inform Underwriters
of the incident. (ECF No. 66 ¶¶ 28, 30).
testified that by that point, the Sababa had
mechanical problems nearly every time she took it out. (ECF
No. 53-1 at 43-47, 144-46). “Something kept - kept
going wrong” (Id. at 45), “it just was
never ending.” (Id. at 144-46). In her view,
the vessel was not seaworthy to travel in the open seas:
“And the boat, if you look at the - was seaworthy to
the point of getting - I got insurance and it was safe in
that it wasn't going to sink. But it was - it wasn't
seaworthy to go anywhere, to the Bahamas. So I had a long
list of things to do.” (Id. at 43).
wanted the Sababa ready for trips to the Bahamas
(Id. at 81-82), so she finally arranged to take it
to Glass-Tech for a haul-out. (Id. 85-86). On April
29, 2016, a Friday, Sablotsky left the dock at her home and
piloted the vessel to Glass-Tech's boatyard.
(Id. at 153-58). On the way, she sent Glass-Tech
owner Nelson Fernandez a text message asking if it was
“[s]till ok to bring boat today?” (ECF No. 71-1
at 1). Fernandez texted back that she could “bring it
over.” (Id.). She asked, “can we be
there at like 1:30?” (Id.). Fernandez
responded, “Yes. That's fine. I may not be able to
haul till Monday. But it will at least be there and so we can
haul it Monday. So bring it over when u
Sababa arrived at the boatyard early that afternoon.
(ECF No. 68-2 at 67-68). Sablotsky pulled alongside another
vessel already tied to the dock (Id. at 158), and
two boatyard employees caught and tied her lines to the other
vessel. (Id. at 158-62). Sablotsky confirmed the
work she wanted performed, gathered her belongings, and left.
own admission, Sablotsky did not:
• Advise Glass-Tech that the Sababa had not
been hauled out for bottom maintenance in more than three
years (Id. at 84-85);
• Advise Glass-Tech of the poor condition of the vessel
• Advise Glass-Tech that she believed the vessel had run
aground a month earlier (Id.);
• Instruct anyone at the boatyard to plug the vessel
into shore power (Id.); or
• Plug the vessel into shore power herself.
Fernandez had anticipated, Glass-Tech did not end up hauling
the Sababa out on April 29, 2016. (ECF No. 76 ¶
10). Two days later, on Sunday, a boatyard security guard
discovered the vessel partially submerged. (ECF No. 68-2 at
30). Glass-Tech informed Sablotsky (ECF No. 53-1 at 91, 164
& Ex. O at 89), lifted the vessel out of the water, and
took measures to preserve her equipment and machinery.
(Id. at 180). At that point, Sablotsky told
Fernandez via text message that the yacht “may have hit
the bottom on the way out of the canal” a month before,
that it “basically felt like it just touched the
bottom, ” and that she just “kept going.”
(ECF No. 71-1 at 19).
B'Seder filed an insurance claim with Underwriters that
day. (ECF No. 53-1 at 92; ECF No. 71-1 at 10). Agnes
Henderson of York Risk Services Group (“York”),
the Underwriters' Third Party Administrator, handled the
claim. (ECF 51-1 at 4.). Henderson called Sablotsky to find
out if there had been an incident leading to the
Sababa's partial submersion, and Sablotsky told
her that she did not remember grounding the vessel.
(Id. at 14). Sablotsky later said the same thing to
York's surveyor, Stuart Hutchinson. (ECF No. 68-3 at
20-21; ECF No. 68-6 at 1).
surveyed the vessel on May 3, 2016. (ECF No. 68-6). He
concluded, inter alia, the following:
Firstly, the design and installation of external rudder logs
This is not an uncommon failure.
It is my professional opinion that the external rudder and
rudder log have been subjected to hydraulic forces over time,
which contributed to or caused the tabbing holding the
starboard rudder log to progressively fracture. Fastener
penetrations and plumbing penetrations contributed to the
transom becoming overly saturated.
Some of the repairs performed in 2008 failed, when the rudder
log came adrift and moved aft causing transferred fatigue to
tabbing on the inside rudder shelf.
It is my professional opinion that water had been ingressing
the bilges in the engine space for some time thru the
starboard rudder log and penetrations for the trim tab
The bilge pumps have in the past dewatered the vessel because
the vessel was plugged into shore power and the battery bank