E-Alert Case Updates

Trial Court interpreted proper maritime law correctly, and properly excluded damage summary

Sail Zambezi, Ltd. v. Maryland State Highway Administration
--- A.3d --- (April 30, 2014) (not yet published)
by Gregory S. Emrick, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/cosa/2014/1888s12.pdf

Sail Zambezi, Ltd.’s sole asset was a 60 foot Oyster boat that was captained by Guy Kalron. On October 16, 2010, the owner of Sail Zambezi took his wife and a friend out for a day of sailing. During the trip, the boat passed the Spa Creek Bridge, and after several hours of sailing returned to the bridge. Sail Zambezi waited in the harbor until the next scheduled opening when the bridge tender opened it to allow the waiting boats through. After the downstream boats had passed the bridge, the Sail Zambezi followed another boat under the bridge. While the other boat was able to clear the bridge, the bridge tender closed the bridge while the Sail Zambezi was still in the closure path, causing damage to the oyster boat. The bridge tender indicated he had never seen the Sail Zambezi on any of the mirrors or monitors, and the boat had never signaled that it was there, as required by federal regulation.

Sail Zambezi filed suit for the damages to the boat, against the Maryland State Highway Association (“SHA”), who was responsible for the operation of the drawbridge. SHA filed a third-party complaint against Kalron as the captain of the boat for failing to signal properly. During the trial, two issues arose that lead to appellate review. First, the parties disputed the interpretation of the regulations contained in 33 C.F.R. § 117.19-21 governing procedures surrounding boat operator’s obligations at drawbridges. Sail Zambezi argued that the regulation exempted the Spa Creek Bridge from the requirement applied to the other bridges in the State, by not requiring the boat to signal that it intended to pass the bridge, since the regulation provided for definitive times that the bridge would open. SHA argued there was no exemption and the boat was required to signal a request to open the bridge, regardless of the times indicated. The Trial Court issued a jury instruction based on SHA’s interpretation.

Secondly, the Court addressed the issue of the admissibility of Sail Zambezi’s evidence of damages. Sail Zambezi stated that it intended to prove its damages by moving the invoices for its repairs into evidence, and entering a spreadsheet that summarized the invoices that was prepared by Kalron, both as business records. SHA opposed the admission, arguing that the invoices were not business records because they were created by another company and received by Sail Zambezi. The spreadsheet was also inadmissible because it was based on the inadmissible invoices, and was not itself a business record because it was created for litigation. While the Court permitted Sail Zambezi to use the summary to refresh Kalron’s memory on the stand, the documents were not admitted into evidence. The jury returned a verdict finding both Sail Zambezi and SHA comparatively negligent under Maritime Law, apportioning 85 percent fault to Sail Zambezi and 15 percent to SHA. However, the jury also concluded that no dollar damages had been proven. Sail Zambezi appealed.

The Court of Special Appeals noted that the determination of the federal regulation was a question of law reviewed de novo. In finding that SHA’s position was correct, the Court noted the plain language of the statute did not exempt the Spa Creek Bridge from the requirement that a boat signal to pass, but merely set predetermined opening times for the bridge. Further, it noted that holding otherwise would create havoc with the boats and road traffic attempting to cross the bridge, as it would be impossible to tell whether a boat was going to go through the bridge, or merely wait in the harbor.

The Court then addressed the evidentiary matter and noted that since Sail Zambezi had not availed themselves of the procedures in MD. CODE ANN., CTS. & JUD. PROC. § 10-105, they were obligated to present testimony sufficient to authenticate the spreadsheet as a business record, and expert testimony explaining the reasonableness of the expenses. The Court noted that it would have been improper to admit the spreadsheet, which was based on inadmissible invoices, as a business record. Further, it did not have the presumption of trustworthiness because it was created by Kalron for the sole purpose of the litigation. The Court of Special Appeals held that the trial court was correct in his holdings and affirmed the judgment.