INT'L MARINE RESEARCH v. SANDERS MARINE TOW, Et Al Complaint

Case 0:05-cv-61364-KAM Document 1 Entered on FLSD Docket 08/16/2005 Page 1 of 27
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORID A
IN ADMIRALT Y
INTERNATIONAL MARINE
RESEARCH INSTITUTE, INC .,
A Florida Not For Profit Charity, CiV4ARRA
Plaintiff, :7 7
vs .
SANDERS MARINE TOWING, INC . d/b/a

FT . PIERCE TOWBOAT U .S. ,
LARRY ALLEN BALANCHETT,
MCCULLEY MARINE SERVICES, INC .,
INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA ; ROYAL MARINE
INSURANCE GROUP, INC ., in personam ;
and, M/V Phoenix, a 1989 29' motor vessel,
her engines , tackle, accessories, and
appurtenances , in rem,
Defendants .
VERIFIED COMPLAIN T
Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE, INC . (hereinafter
"IMRI"), by and through its undersigned counsel and sues Defendants , SANDERS MARINE
TOWING, INC . d/b/a FT . PIERCE TOWBOAT U .S . (hereinafter "SANDERS"), LARRY
ALLEN BALANCHETT ( hereinafter "BALANCHETT"), MCCULLEY MARINE SERVICES,
INC . (hereinafter "MCCULLY"), INDEMNITY INSURANCE COMPANY OF NORTH
AMERICA ( hereinafter "INAMAR") ; ROYAL MARINE INSURANCE GROUP, INC .
(hereinafter "ROYAL") in personam ; and the M/V Phoenix, a 1989 29' motor vessel , in rem and
alleges :
GENERAL ALLEGATION S
1 . This is a cause of admiralty and maritime jurisdiction within the meaning of Rule
9(h) of the Federal Rules of Civil Procedure and is within the subject matter jurisdiction of this
Court pursuant to Title 28 U .S .C. § 1333 . More particularly, this suit concerns casualties to a
vessel owned by Plaintiff, IMRI, and asserts alternative claims against the Defendants for breach
of the implied warranty of suitable towing vessel, breach of the implied warranty of workmanlike
performance, negligent towing, negligent salvage, and breach of a marine insurance contract .
2 . In addition, this suit involves an in rem claim against the motor vessel named
Phoenix under Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims of
the Federal Rules of Civil Procedure .
3 . This suit also contains claims for breach of oral contract to procure marine
insurance, negligent failure to procure marine insurance, breach of fiduciary duty to procure and
maintain marine insurance, and misrepresentation about marine insurance coverage . To the
extent that the aforementioned claims do not fall within this Court's original jurisdiction,
Plaintiff invokes this Court's supplemental jurisdiction pursuant to Title 28 U .S.C. § 1367 .
4. At all times material to this suit, Plaintiff IMRI is a Florida non-profit corporation
with a principal place of business in Broward County, Florida where it engages in receiving
donated property for use in the non-profit corporation's activities .
5 . At all times material to this suit, Plaintiff IMRI is a qualified Internal Revenue
Service 501 C(3) charity and was and is the owner of a 1981 39' motor vessel named Nikki, which
bears hull identification number FLZY2255G98I I .
6 . At all times material to this suit, Defendant SANDERS was and is a Florida
corporation with its principle place of business at 1100 Ponce De Leon Circle, W 109, Vero
Beach , Florida, 32960 .
7 . At all times material to this suit , Defendant SANDERS was and is engaged in the
marine salvage and towing business .
8 . At all times material to this suit, Defendant SANDERS was and is the owner,
operator and/or cha rterer of the tow boat named Phoenix , which is a 1989 29' motor vessel that
provided negligent towing and /or salvage se rvices to the Plaintiffs vessel Nikki as desc ribed
more fully below .
9 . At all times mate rial to this suit, in rem Defendant Phoenix was and is involved in
providing negligent towing and/or salvage serv ices to the Plaintiff's vessel Nikki. Upon
information and belief, in rein Defendant Phoenix will be within the Southe rn District of Florida
during the pendency of this lawsuit and is subject to se rvice of process in this ju risdiction .
10 . At all times material to this suit, Defendant BALANCHETT was and is over 18
years old and a resident of St . Lucie County, Florida.
11 . At all times material to this suit, Defendant BALANCHETT was and is an
employee of Defendant SANDERS and the captain of the tow boat named Phoenix .
12 . At all times mate rial to this suit , Defendant BALANCHETT acted within the
course and scope of his employment with Defendant SANDERS .
13 . At all times material to this suit, Defendant SANDERS is vicariously liable for the
acts and/or omissions of Defendant BALANCHETT .
14 . At all times mate ri al to this suit, Defendant MCCULLEY was and is a Florida
corporation with its principal place of business at 2309 N . Old Dixie Highway, Fo rt Pierce,
Flo ri da 34946 .
15 . At all times material to this suit , Defendant MCCULLEY was and is engaged in the
marine salvage and towing business .
16. At all times material to this suit, Defendant INAMAR was and is a Pennsylvania
corporation with its principal place of business at Two Liberty Place, 1601 Chestnut Street,
Philadelphia, Pennsylvania 19103 .
17. At all times material to this suit, Defendant INAMAR was and is engaged in the
business of underwriting marine insurance and authorized to do business in the State of Florida .
18. At all times material to this suit, Defendant INAMAR issued Policy No . HU
N00895957 002 to provide hull and P & I coverage to Plaintiff's vessel Nikki during the period
of September 19, 2004 through September 19, 2005 . Plaintiff was not given a copy of the Policy
in effect at the time of the subject loss but believes Defendant INAMAR has one in its
possession .
19. At all times material to this suit, Defendant ROYAL was and is a Florida
corporation with its principal place of business at 8300 Executive Center Drive, Suite 102,
Miami, Florida 33166 .
20. At all times material to this suit, Defendant ROYAL was and is an insurance agent
and/or broker engaged in procuring marine insurance for customers such as Plaintiff IMRI .
21 . At all times material to this suit, Defendant ROYAL acted as Plaintiff IMRI'S
insurance agent and/or broker and was responsible for procuring and maintaining hull insurance
on Plaintiff IMRI'S vessels, including, but not limited to, the Nikki.
22. On December 22, 2004, the Nikki departed the Fort Pierce Inlet, heading south
toward a final destination of Fort Lauderdale, Florida .
23. The Nikki 's progress in the rough sea was slow and her Captain, David W . Nicoll,
decided to return to the Fort Pierce Inlet and proceed south to Ft . Lauderdale via the Intracoastal
Waterway .
24. As the vessel Nikki was turning back toward the Fort Pierce Inlet, she was hit by a
rogue wave in the aft area of the vessel and took on a substantial amount of water .
25 . The rogue wave caused the Nikki 's engine to shut down and Captain Nicoll
attempted to de-water the vessel . However, the de-watering process failed when the bilge pumps
stopped working after a period of time .
26 . Captain Nicoll called the U .S. Coast Guard for help and the Coast Guard called
Defendant SANDERS and requested it render commercial towing assistance to the Nikki.
Defendant SANDERS did not inform the Coast Guard or Captain Nicoll on board the Nikki that
it was not readily available to send a vessel and crew out to assist the Nikki or that it would take
many hours before it could respond to the call for help .
27 . At approximately 6 :00 a.m., December 23, 2004 after the Nikki was left drifting at
the mercy of the sea for approximately nine (9) hours, Defendant SANDERS finally arrived on
the scene with its vessel Phoenix under the command of Defendant, BALANCHETT .
28 . For approximately one hour after the Phoenix arrived on scene, Defendant
BALANCHETT questioned Captain Nicoll about Nikki 's condition prior to sending over a line to
take the Nikki under tow .
29 . During this time, Captain Nicoll informed Defendants SANDERS and
BALANCHETT that the Nikki was swamped by a big wave ; that the Nikki had a large amount of
water in its bilge ; and that its bilge pumps were inoperable, which precluded the Nikki from de-
watering itself so it could restart its engine .
30. Defendants SANDERS and BALANCHETT knew that the Nikki's bilge pump s
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were inoperable and that she had experienced flooding and still contained large amounts of sea
water in her bilge prior to towing the Nikki to Fort Pierce Inlet .
31 . While Defendant BALANCHETT indicated he would send over a pump to de-water
the Nikki prior to undertaking the tow, he did not do so . Upon information and belief,
Defendants SANDERS and BALANCHETT did not put a pump on the Nikki to de-water it
because either the portable pump was inoperative, out of fuel, or Defendants SANDERS and
BALANCHETT were in fear of losing the tow should the Nikki be de-watered and able to
proceed under her own power .
32. At approximately 7 :00 a.m ., Defendants SANDERS and BALANCHETT decided
to commence the tow of the Nikki without de-watering her .
33. Defendants SANDERS and BALANCHETT chose to use a polypropylene line to
tow the Nikki.
34. During the tow toward the Fort Pierce Inlet, Defendants SANDERS and
BALANCHETT'S inadequate line broke on numerous occasions, which delayed the Nikki 's tow
toward safety by several hours .
35 . During the tow, Captain Nicoll was informed by Defendant BALANCHETT that he
was up all night responding to another call for assistance before responding to the Nikki's request
for tow service .
36. As the Phoenix was approaching the Fort Pierce Inlet, Captain Nicoll radioed
Defendant BALANCHETT and inquired whether BALANCHETT wished to shorten the tow line
before the vessels got into the Inlet .
37. Defendant BALANCHETT said he was not interested in shortening the tow line an d
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proceeded with the Nikki in tow towards the Fo rt Pierce Inlet with an inappropriate long tow line,
a towed vessel with a large amount of sea water in her bilge, and at an excessive rate of speed .
38. While approaching the Fort Pierce Inlet, the vessel Nikki encountered rough seas
and waves that struck Nikki's stern qua rter, thereby shifting water inside the vessel that allowed
more water to enter the vessel and ultimately caused the Nikki to capsize .
39. After capsizing the Nikki, Defendants BALANCHETT and SANDERS requested
immediate assistance from Defendant MCCULLEY to salvage and /or tow the vessel Nikki to
safety.
40. Defendant MCCULLEY arrived on the scene and it and Defendants SANDERS
and BALANCHETT commenced rendering salvage assistance to the Nikki .
41 . Defendants, SANDERS, BALANCHETT, and MCCULLY assumed care, custody
and control of the Nikki while attempting to provide salvage assistance to her .
42. Defendants, SANDERS, BALANCHETT, and MCCULLY failed to properly man
the salvage operation . Specifically, the Defendants failed to quickly and efficiently right the
vessel, de-water the vessel, pickle the engines and take necessary steps to save the vessel Nikki or
preclude additional damages by the virtue of allowing the vessel to continue in her submerged
state in the navigable waters in and around Fort Pierce, Florida .
43 . Furthermore, the vessel Nikki, upon information and belief, sustained additional
damages as a result of the vessel being towed upside down in a capsized manner and not properly
righted in a timely and reasonable manner by the Defendants SANDERS, BALANCHETT and
MCCULLY .
44 . Plaintiff, IMRI, has performed or satisfied all conditions precedent to filing th e
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subject suit .
45 . Plaintiff, IMRI, was required to retain the law firm of Stroup & Martin, P .A . to
prosecute this suit on its behalf and is obligated to pay reasonable attorney's fees and costs for
Stroup & Martin 's services.
COUNT I
PLAINTIFF IMRI'S CLAIM AGAINST INPERSONAM DEFENDANTS
SANDERS AND BALANCHETT AND IN REM DEFENDANT Phoenix FOR BREACH
OF THE IMPLIED WARRANTY OF SUITABLE TOWING VESSE L
46 . Plaintiff, IMRI, re-alleges Paragraphs 1, 2, 4 through 13, 22 through 39, 44 and 45
of the Verified Complaint as if fully set forth herein .
47 . General maritime law applies to towing contracts for vessels .
48 . Under the general maritime law, towers impliedly warrant that :
a . Their towing vessel is adequately powered, equipped and efficient to
perform the subject tow ;
b . Reasonable skill, energy, diligence and care will be exercised in
performing the tow ; and ,
c . The towing vessel's crew, tackle and equipment are equal to the work to
be accomplished in weather and circumstances reasonably to be expected .
49 . Defendants SANDERS, BALANCHETT and Phoenix impliedly warranted to
Plaintiff IMRI that :
a. The Phoenix was adequately powered, equipped, and efficient to perform
the subject tow ;
b . Reasonable skill, energy, diligence and care would be exercised i n
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performing the subject tow ; and ,
c. The Phoenix's crew, tackle and equipment were equal to the work to be
accomplished in the weather and circumstances that were reasonably to be
expected .
50 . Defendants SANDERS, BALANCHETT and Phoenix breached their implied
warranty of suitable towing vessel by :
a. Failing to timely respond to the Nikki 's request for assistance ;
b. Failing to de-water the Nikki before towing it to Ft . Pierce Inlet ;
c . Failing to use proper equipment to tow the Nikki;
d . Failing to sho rten the tow line and/ or reduce speed while towing the Nikki
into the Ft . Pierce Inlet ;
e . Failing to use proper seamanship in towing the Nikki ; and/or,
f. Failing to timely call for additional assistance and/or equipment to tow the
Nikki to Ft . Pierce Inlet .
51 . Plaintiff IMRI'S vessel Nikki was rendered a constructive total loss as a result of
Defendants SANDERS, BALANCHETT and Phoenix 's breach of their implied warranty of
suitable towing vessel .
52 . Defendants SANDERS, BALANCHETT and Phoenix 's breach of their implied
warranty of suitable towing vessel directly and proximately caused damages to Plaintiff IMRI,
which damages consist of either the market value of the Nikki or the reasonable cost of repairs for
the vessel ; sue and labor expenses ; loss of use of the Nikki; haul-out and/or storage charges for
the Nikki after the subject casualty ; su rveyor ' s expenses ; prejudgment interest ; and other los s
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related expenses .
WHEREFORE, Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE,
INC ., demands the Honorable Court to do the following :
a) That process be issued against the M/V Phoenix ;
b) That all persons having a claim or interest therein may be cited to appear and
answer the aforementioned matter ;
c) That upon proper notice and hearing, judgment be entered in favor of Plaintiff IMRI
and against the in rem Defendant Phoenix and the in personam Defendants SANDERS and
BALANCHETT for the amount of damages identified in Paragraph 52 above ;
d) That the Court order the Phoenix sold at a U .S. Marshal's auction for purposes of
satisfying part of Plaintiff s judgment ; and ,
e) Order such other and further relief as this Court deems just and proper .
COUNT II
PLAINTIFF IMRI 'S CLAIM AGAINST IN PERSONAM DEFENDANTS
SANDERS AND BALANCHETT FOR BREACH OF THE IMPLIED WARRANTY OF
WORKMANLIKE PERFORMANC E
53. Plaintiff, IMRI, re-alleges Paragraphs 1, 2, 4 through 13, 22 through 39, 44 and 45
of the Verified Complaint as if fully set forth herein .
54 . General maritime law applies to service contracts for vessels .
55 . Under the general maritime law, marine contractors impliedly warrant that their
services to vessels will be performed in a workmanlike manner .
56. Defendants SANDERS and BALANCHETT impliedly warranted that they would
perform their towing and/or salvage services to Plaintiff IMRI'S vessel named Nikki in a
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workmanlike manner.
57 . Defendants SANDERS and BALANCHETT breached their implied warranty of
workmanlike performance by :
a . Failing to timely respond to the Nikki's request for assistance ;
b . Failing to de-water the Nikki before towing it to Ft . Pierce Inlet ;
c . Failing to use proper equipment to tow the Nikki ;
d. Failing to shorten the tow line and/or reduce speed while towing the Nikki
C. Failing to use proper seamanship in towing the Nikki; and/or,
58 . Plaintiff IMRI'S vessel Nikki was rendered a constructive total loss as a result of
Defendants SANDERS and BALANCHETT'S breach of their implied warranty of workmanlike
performance.
59 . Defendants SANDERS and BALANCHETT'S breach of their implied warranty of
workmanlike performance directly and proximately caused damages to Plaintiff IMRI, which
damages consist of either the market value of the Nikki or the reasonable cost of repairs for the
vessel ; sue and labor expenses ; loss of use of the Nikki ; haul-out and/or storage charges for the
Nikki after the subject casualty ; surveyor's expenses ; prejudgment interest ; and other loss related
expenses.
WHEREFORE, Plaintiff INTERNATIONAL MARINE RESEARCH INSTITUTE, INC.,
demands the Honorable Court enter a judgment in its favor against Defendants SANDER S
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MARINE TOWING, INC . d/b/a FT. PIERCE TOWBOAT U .S . and LARRY ALLEN
BALANCHETT and award Plaintiff compensato ry and consequential damages, expenses,
prejudgment interest , costs and such further relief the Cou rt deems proper.
COUNT II I
PLAINTIFF IMRI 'S NEGLIGENT TOWING CLAIM AGAINST IN PERSONAM
DEFENDANTS SANDERS AND BALANCHETT AND IN REM DEFENDANT Phoenix
60 . Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 1, 2, 4 through
13, 22 through 39, 44 and 45 of the Verified Complaint as if fully set forth herein .
61 . Defendants SANDERS, BALANCHETT and Phoenix owed a duty to use
reasonable care under the circumstances to tow the vessel Nikki in a safe and competent manner .
62 . Defendants, SANDERS, BALANCHETT and Phoenix breached their duty to use
reasonable care in towing the Nikki by the following acts or omissions :
a. Failing to timely respond to the Nikki 's request for assistance ;
b . Failing to de-water the Nikki before towing it to Ft . Pierce Inlet;
c . Failing to use proper equipment to tow the Nikki;
d . Failing to shorten the tow line and/or reduce speed while towing the Nikki
e . Failing to use proper seamanship in towing the Nikki ; and/or,
63. Plaintiff IMRI'S vessel Nikki was rendered a constructive total loss as a result of
Defendants SANDERS, BALANCHETT'S and Phoenix's breach of their reasonable duties of
care in towing the Nikki .
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64 . Defendants SANDERS, BALANCHETT and Phoenix's breach of their reasonable
duties of care in towing the Nikki directly and proximately caused damages to Plaintiff IMRI,
which damages consist of either the market value of the Nikki or the reasonable cost of repairs for
the vessel ; sue and labor expenses ; loss of use of the Nikki ; haul-out and/or storage charges for
the Nikki after the subject casualty ; surveyor's expenses ; prejudgment interest ; and other loss
related expenses .
INC., demands the Honorable Court to do the following :
a) That process be issued against the M/V Phoenix ;
b) That all persons having a claim or interest therein may be cited to appear and
answer the aforementioned matter ;
c) That upon proper notice and hearing, judgment be entered in favor of Plaintiff IMRI
and against the in rem Defendant Phoenix and the in person am Defendants SANDERS and
BALANCHETT for the amount of damages identified in Paragraph 64 above ;
d) That the Court order the Phoenix sold at a U .S. Marshal's auction for purposes of
satisfying part of Plaintiff's judgment ; and,
e) Order such other and further relief as this Court deems just and proper .
COUNT I V
PLAINTIFF IMRI 'S NEGLIGENT SALVAGE CLAIM AGAINS T
IN PERSONAM DEFENDANTS SANDERS, BALANCHETT AND MCCULL Y
65 . Plaintiff, IMRI, re-alleges Paragraphs 1, 2, 4 through 15, 22 through 45 of the
Verified Complaint as if fully set forth herein .
66 . After the vessel Nikki capsized on December 23, 2004, Defendants, SANDERS ,
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BALANCHETT, and MCCULLEY owed a reasonable duty of care to salvage the Nikki without
causing more damages to the vessel .
67 . Defendants SANDERS, BALANCHETT, and MCCULLEY breached their
reasonable duty of care to salvage the Nikki without causing more damages by :
a . Failing to take action to de-water the Nikki and right her before continuing
to tow her into Ft . Pierce Inlet ;
b . Towing the Nikki into Ft . Pierce Inlet while she was still capsized and
upside down in the water ; and ,
c . Failing to pickle the Nikki 's engine(s) and generator set and failing to take
other action to preserve and protect the Nikki once it was in port.
68 . Defendants SANDERS, BALANCHETT, and MCCULLEY' S acts and/or
omissions as outlined in this Complaint amount to gross negligence on their part .
69. Plaintiff IMRI'S vessel Nikki was rendered a constructive total loss as a result of
Defendants SANDERS, BALANCHETT and MCCULLY 'S breach of their reasonable duties of
care and/or gross negligence in salvaging the Nikki.
70. Defendants SANDERS, BALANCHETT and MCCULLY' S breach of their
reasonable duties of care and gross negligence in salvaging the Nikki directly and proximately
caused additional damages to Plaintiff IMRI, which damages consist of either the market value of
the Nikki or the reasonable cost of repairs for the vessel ; sue and labor expenses ; loss of use of
the Nikki ; haul-out and/or storage charges for the Nikki after the subject casualty ; su rv eyor's
expenses ; prejudgment interest ; and other loss related expenses .
71 . As detailed herein above, Defendants , SANDERS, BALANCHETT and
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MCCULLY' S gross negligence in their conduct in the salvage operation resulted in additional
damage to the Nikki. Further, Defendants , SANDERS, BALANCHETT and MCCULLY
damaged the Nikki beyond the scope of anticipated damages which the vessel sustained as a
result of the capsizing .
INC ., demands judgment , jointly and severally, against the Defendants , SANDERS,
BALANCHETT and MCCULLY, for damages as a result of their negligent salvage, prejudgment
interest, costs and for such other and fu rther relief as this Court deems just and proper.
COUNT V
PLAINTIFF IMRI'S BREACH OF CONTRACT CLAIM
AGAINST DEFENDANT INAMA R
72 . Plaintiff, IMRI, re-alleges Paragraphs 1, 4 through 18 and 22 through 45 of the
Verified Complaint as if fully set forth herein .
73 . Defendant INAMAR insured the Nikki under Policy No . HU N00895957 002
during the period of September 19, 2004 through September 19, 2005 .
74 . The casualties involving the Nikki as described herein were covered under th e
Policy .
75 . The Nikki was rendered a constructive total loss as a result of one or more of the
casualties described herein .
76 . The damages sustained by the Nikki as described herein were insured under Policy
No. HU N00895957 002 .
77 . Plaintiff IMRI gave prompt notice of the aforementioned casualties to Defendant
INAMAR.
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78 . Plaintiff IMRI submitted a claim to Defendant INAMAR for the constructive total
loss of the Nikki, sue and labor expenses and other covered expenses .
79 . Defendant INAMAR was obligated to pay Plaintiff IMRI for the constructive total
loss of the Nikki, sue and labor expenses and other insured expenses under the terms of Policy
No. HU N00895957 002 .
80 . Defendant INAMAR breached Policy No . HU N00895957 002 by refusing to pay
Plaintiff IMRI'S claims arising from the aforementioned casualties .
81 . Defendant INAMAR'S breach of the subject Policy directly and proximately
caused damages to Plaintiff IMRI .
82 . Plaintiff IMRI is entitled to recover its attorney's fees from Defendant INAMAR
for breach of the subject Policy pursuant to Florida Statute § 627 .428
83 . Plaintiff IMRI'S damages arising from Defendant INAMAR'S breach of the
subject Policy include the insured agreed value of the Nikki, sue and labor expenses, storage
expenses, surveyor's expenses, other loss related expenses, prejudgment interest, and attorney's
fees .
INC ., demands the Honorable Court enter a judgment in its favor against the Defendant,
INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, and award Plaintiff
compensato ry and consequential damages, prejudgment interest, atto rn ey's fees pursuant to
Flo ri da Statute § 627 .428, costs and for such other and fu rther relief as this Court deems just and
proper.
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COUNT V I
PLAINTIFF IMRI'S BREACH OF ORAL CONTRACT CLAIM
AGAINST DEFENDANT ROYAL FOR FAILING TO PROCURE AND MAINTAIN
INSURANCE COVERAGE FOR THE M/V Nikk i
84 . Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 3 through 45 of
the Verified Complaint as if fully set forth herein .
85 . At all times material hereto, Defendant ROYAL held itself out to the public as
being an expert in procuring marine insurance for customers' needs .
86 . Plaintiff IMRI used Defendant ROYAL as its insurance agent and/or broker to
procure insurance coverage for its vessels for several years prior to December 2004 .
87. During the years leading up to December 2004, Defendant ROYAL developed a
special insurance agency relationship with Plaintiff IMRI, which encompassed ROYAL inquiring
about IMRI'S activities, advising IMRI about its insurance needs and obtaining coverage to
insure IMRI'S risks .
88. Prior to the casualties to the M/V Nikki in December 2004, Plaintiff IMRI orally
contracted with Defendant ROYAL to procure hull insurance for vessels donated to the Plaintiff .
89. Defendant ROYAL advised Plaintiff IMRI that it procured Policy No . H U
N00895957 002 from Defendant INAMAR and that the Nikki was insured under said Policy .
90. Prior to the aforementioned casualties to the Nikki, Plaintiff IMRI informed
Defendant ROYAL that it was relocating the vessel from St . Augustine to Ft . Lauderdale,
Florida .
91 . Defendant ROYAL advised Plaintiff IMRI that it had notified Defendant INAMAR
about the proposed change in the Nikki 's location from St . Augustine to Ft . Lauderdale and tha t
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the vessel would be insured during and after its relocation to Ft . Lauderdale .
92 . Defendant INAMAR denied Plaintiff IMRI'S claims for the constructive total loss
of the Nikki, sue and labor expenses, storage charges and other losses covered under the subject
Policy.
93 . While Plaintiff IMRI contends the casualties sustained by the Nikki are covered
under the subject Policy and that Defendant INAMAR has breached said contract by failing to
pay IMRI' S claims, if the Court finds that the Policy does not cover the relevant losses, then
Defendant ROYAL breached the oral contract to procure and maintain insurance coverage for the
Nikki.
94. While Plaintiff IMRI contends the casualties sustained by the Nikki are covered
pay IMRl'S claims, if the Court finds that the Policy does not cover the relevant losses, then
Defendant ROYAL'S breach of oral contract to procure and maintain insurance coverage for the
Nikki directly and proximately caused damages to Plaintiff IMRI .
95 . Plaintiff IMRI'S damages arising from Defendant ROYAL'S breach of oral
contract include, but are not limited to, the loss of the insured value of the Nikki, sue and labor
expenses, storage expenses, surveyor's fees, prejudgment interest on the amounts that should
have been timely paid under the relevant Policy, attorney's fees in having to file suit against
Defendant INAMAR to try and collect under the Policy, and costs .
96 . Under Florida law, Plaintiff IMRI is entitled to recover all damages causally arising
from Defendant ROYAL'S breach of oral contract and therefore Plaintiff IMRI is entitled to
recover those attorney's fees that it must expend in suing Defendant INAMAR to try and enforc e
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the marine insurance contract.
INC ., demands the Honorable Court enter a judgment in its favor against the Defendant, ROYAL
MARINE INSURANCE GROUP, INC ., and award Plaintiff compensatory and consequential
damages, prejudgment interest, attorney's fees, costs and for such other and further relief as this
Court deems just and proper .
COUNT VI I
PLAINTIFF IMRI 'S CLAIM AGAINST DEFENDANT ROYAL FOR NEGLIGENT
FAILURE TO PROCURE AND MAINTAIN INSURANCE COVERAG E
97. Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 3 through 45, 85
through 87 and 89 through 92 of the Verified Complaint as if fully set forth herein .
98 . Plaintiff IMRI requested Defendant ROYAL to procure and maintain insurance
coverage for its vessels, including the Nikki for the time period of September 19, 2004 through
September 19, 2005 .
99. At all times material hereto, Defendant ROYAL did not inform Plaintiff IMRI that
it could not obtain the coverage requested for Plaintiff's vessels .
100 . Defendant ROYAL owed a duty to Plaintiff IMRI to use reasonable care to procure
and maintain a policy of insurance for Plaintiffs vessels, which insurance was suitable in all
respects for Plaintiff's needs and covered the donated vessels, such as the Nikki, while in
Plaintiff's ownership .
pay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, the n
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Defendant ROYAL breached its duty to Plaintiff IMRI to use reasonable care in procuring and
maintaining marine insurance coverage for Plaintiffs vessels, including the Nikki.
pay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, then
Defendant ROYAL'S negligent failure to procure and maintain insurance coverage for the Nikki
directly and proximately caused damages to Plaintiff IMRI .
103 . Plaintiff IMRI'S damages arising from Defendant ROYAL'S negligent failure to
procure and maintain insurance coverage for the Nikki include, but are not limited to, the loss of
the insured value of the Nikki, sue and labor expenses, storage expenses, surveyor's fees,
prejudgment interest on the amounts that should have been timely paid under the relevant Policy,
attorney's fees in having to file suit against Defendant INAMAR to try and collect under the
Policy, and costs .
104 . Under Florida law, Plaintiff IMRI is entitled to recover all damages causally
arising from Defendant ROYAL'S negligence and therefore Plaintiff IMRI is entitled to recover
those attorney's fees that it must expend in suing Defendant INAMAR to try and enforce the
marine insurance contract .
INC., demands the Honorable Court enter a judgment in its favor against the Defendant, ROYAL
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COUNT VII I
PLAINTIFF IMRI 'S CLAIM AGAINST DEFENDANT ROYAL FOR BREACH OF
FIDUCIARY DUT Y
105 . Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 3 through 45,
85 through 87 and 89 through 92 of the Verified Complaint as if fully set forth herein .
106 . Plaintiff IMRI placed trust and confidence in Defendant ROYAL because of the
nature of the agent-client relationship and their belief that Defendant ROYAL held superior
knowledge, skill and judgment about insurance matters, including, but not limited to, the type of
policy that would satisfy Plaintiff's request for coverage for its vessels, including the Nikki .
107 . At all times material hereto, Defendant ROYAL had a fiduciary duty to Plaintiff
IMRI because of the inherent trust and confidence that the Plaintiff had in Defendant ROYAL as
its insurance agent and/or broker.
108 . At all times material hereto, Defendant ROYAL'S fiduciary duties owed to
Plaintiff consisted of:
a. To procure and maintain proper insurance coverage for the Nikki;
b. To fully and completely explain the material terms and conditions of the
insurance coverage to Plaintiff;
c. Not to mislead the Plaintiff about the nature and scope of its insurance
coverage for the Nikki; and,
d. Advise Plaintiff if Defendant ROYAL was unable to procure the
appropriate coverage .
under the subject Policy and that Defendant INAMAR has breached said contract by failing t o
-21-
pay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, the
Defendant ROYAL breached its fiduciary duties to Plaintiff IMRI by either failing to procure and
maintain the appropriate insurance coverage for the Nikki, failing to fully and completely explain
the material terms and conditions of the insurance coverage to Plaintiff IMRI, misleading
Plaintiff about the nature and scope of its insurance coverage and/or failing to advise Plaintiff
that it had not been able to procure the appropriate coverage for the Plaintiff and its vessel Nikki .
Defendant ROYAL'S breach of its fiduciary duties directly and proximately caused Plaintiff
IMRI to suffer damages including, but not limited to, the loss of the insured value of the Nikki,
sue and labor expenses, storage expenses, surveyor's fees, prejudgment interest on the amounts
that should have been timely paid under the relevant Policy, attorney's fees in having to file suit
against Defendant INAMAR to try and collect under the Policy, and costs .
arising from Defendant ROYAL'S breach of fiduciary duty and therefore Plaintiff IMRI is
entitled to recover those attorney's fees that it must expend in suing Defendant INAMAR to try
and enforce the marine insurance contract .
damages, prejudgment interest, attorney's fees, costs and for such other and further relief as thi s
-22-
COUNT I X
PLAINTIFF IMRI 'S CLAIM AGAINST DEFENDANT ROYAL FOR
MISREPRESENTAION ABOUT INSURANCE COVERAG E
112 . Plaintiff, IMRI, re-alleges the allegations contained in Paragraphs 3 through 45,
85 through 87, 89 through 92 and 106 of the Verified Complaint as if fully set forth herein .
113 . As a professional insurance agent and/or broker, Defendant ROYAL owed a duty
to use reasonable care not to falsely represent to Plaintiff IMRI the scope of insurance coverage
on the Nikki.
pay IMRI'S claims, if the Court finds that the Policy does not cover the relevant losses, then
Defendant ROYAL breached its duty by misrepresented the scope and nature of insurance
coverage for the Nikki to Plaintiff IMRI .
Defendant ROYAL'S misrepresentations about the scope and nature of coverage for the Nikki
directly and proximately caused Plaintiff IMRI to suffer damages including, but not limited to,
the loss of the insured value of the Nikki, sue and labor expenses, storage expenses, surveyor's
fees, prejudgment interest on the amounts that should have been timely paid under the relevant
Policy, attorney's fees in having to file suit against Defendant INAMAR to try and collect under
the Policy, and costs .
-23-
arising from Defendant ROYAL'S misrepresentations and therefore Plaintiff IMRI is entitled to
recover those attorney's fees that it must expend in suing Defendant INAMAR to try and enforce
the marine insurance contract .
DATED : August a, 2005 .
STROUP & MARTIN, P .A.

Attorneys for Plaintiff
119 Southeast 12`h Stree t
Fort Lauderdale, Florida 33316
(954) 462-8808 ; Fax 462-027 8
By :
JAMES W . STR
Fla Bar No . 0842117
FARRIS J . MARTIN, III
Fla Bar No . 0879916
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORID A
IN ADMIRALT Y
CASE NO. :
INTERNATIONAL MARINE
RESEARCH INSTITUTE, INC .,
A Florida Not For Profit Charity,
Plaintiff,
vs.
SANDERS MARINE TOWING, INC . d/b/a

FT . PIERCE TOWBOAT U .S.,
LARRY ALLEN BALANCHETT,
McCULLEY MARINE SERVICES, INC .
INDEMNITY INSURANCE COMPANY
OF NORTH AMERICA ; ROYAL MARINE
INSURANCE GROUP, INC ., in personanz ;
and, M/V Phoenix, a 1989 29' motor vessel,
her engines , tackle, accessories, and
appurtenances , in reni ,
Defendants .
VERIFICATIO N
STATE OF FLORIDA )
) SS
COUNTY OF BROWARD )
I, JAMES SCOTT, being duly swo rn deposes and states :
1 . I am a Consultant for INTERNATIONAL MARINE RESEARCH INSTITUTE,
INC., the Plaintiff herein .
2. I have read the foregoing Veri fied Complaint and know the contents thereof and
the same is true to the best of my own knowledge .

3 . The reason that I make this Verification is that INTERNATIONAL MARINE
RESEARCH INSTITUTE, INC . is a Florida not-for-profit charity and I an its Consultant .
4 . The sources of my information and the grounds of my belief as to all matters
stated in the Verified Complaint are based upon reports made to me by employees and the
records of the corporation for which I have been authorized to make these representations .
INTERNATIONAL MARINE RESEARCH

INSTITUTE, INC .
Trv
SWORN TO AND SUBSCRIBED BEFORE ME, the undersigned authority, on this
X
day of August , 2005, by JAMES SCOTT , a Consultant to INTERNATIONAL MARIN E
RESEARCH INSTITUTE, INC ., who is personally known to me and who did take an oath .
.-J-Aa_F E. So RKLE Y
Notary Public (printed )
My Commission Expires : S
~}`01~4E, JANE E BARKLE Y

.} !. MY COMMISSION I DO4311l,~
km' EXPIRES : May2k2WO
(407) 396-0 153 Florld . Nobly Sw%iftmp
JS 4 4
(Rev . 12/96)
CIVIL COVER SHEET
The JS-44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required
by law, except as provided by local rules of court . This form . approved by the Judicial Conference of the United States in September 1974, is required icr the use
of the Clerk of Court for the purpose of initiating the civil docket sheet (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM . )
1 . (a) PLAINTIFFS DEFENDANT S

In+erna-k onat rh( a r,'ne I
Sanders N(ari 4e, T o n Znc
Rese a rch tns+it&c , S n e ., b /ar F+ . P erce. TO oat U. s .
a Florl da. not --For-pro f akael t L rr olden (•~3J a C41 , ~!
(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIF F COUNTY OF
~!4e r- I C
REST N C E fii 1 1 c LISTED ~ • .40-
(EXCEPT IN U S PLAINTFF CASES) C 0 V n U .S PLAINTIFF C-*5ES ONL C )p
N1AT!(-~r,l rnCGC I rCF TNrt r' * 1 ATrmisi n H F
$+
2 , .fin Jg'-01'f r! J O
INV LVED = LillOi P
(C) ATTORNEYS (FIRMNAME ADDRESS AND I LE HONE NUMBER) A ORNEYS IF KNOWNj 4
S+roo~ ~► d rte ,
t l 9 cS E ~a c t , e ~~`{ \
4. L1l ~J• FL 333/ (P 08 ~i
(d) CIRCLE COUNTY WHERE ACTION AROSE : DADE, MONROE , PALM BEACH, MARTIN, ST. LUCIE, INDIAN RIVER . OKEECHOBEE HIGI1l4DS
[')
H . BASIS OF JURISDICTION iPLACE AN X IN ONE BOX ONLY( III . CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN X M ONE BOX FOR PLAINTIFF
(For Diversity Cases Only) AND ONE BOX FOR DEFENDANT I
PTF DEF PTA DE F
❑ 1 US . Government Federal Questio n Citizen of This State ❑ 1 ❑ 1 Incorporated or Principal Place 4
Plaintiff ( U .S . Government Not a Party ) of Business In This Stat e
❑ 2 U .S . Government ❑ 4 Diversity Citizen of Another State El 2 El 2 Incorporated and Principal Place ❑ 5 ❑ 5

Defendant (Indicate Citizenship of Pa rtie s of Business In Another State
r li
In em III )
Citizen or Subject of a El 3 ❑3 Foreign Nation ❑ 6 ❑ 6
t6
7) K Foreign Country
IV. ORIGIN (PLACE AN "X" IN ONE BOX ONLY) Appeal to District
Transferred fro m Judge from
Original ❑ 2 Removed from El 3 Remanded from [1 4 Reinstated or ❑ 5 another district ❑ 6 Multidistrict ❑ 7 Magistrate
Proceeding State Court Appellate Court Reopened (specify ) Litigation Judgmen t
V. NATURE OF SUIT (PLACE AN "X" IN ONE BOX ONLY)

A CONTRAC T A TORT S , FORFEITURE/PENALT Y A BANKRUPTC Y A OTHER STATUTE S
❑ 110 Insurance PERSONAL INJURY PERSONAL INJURY BID 610 Agricultur e ❑ 422 Appeal 28 USC 15 8 ❑ 400 state Reapportionment
X120 Marin e ❑ 310 Airplan e ❑ 362 Personal Injury - BD 620 Other Food & Drug E] 410 Antitrust
❑ 130 Miller Ac t ❑ 315 Airplane Product Med Malpractice BE] 625 Drug Related Seizure ❑ 423 Withdrawal E] 430 Banks and Banking
❑ 140 Negotiable Insnumen t Liability ❑ 365 Personal injury of Property 21 1ISC 881 28 USC 15 7 BE] 4S0 Commerce / ICC Rates/etc
O 150 Recovery of Overpaymen t [1 320 Assault Libel & Product Liability BE] 630 Liquor Law s E) 460 Depo rt atio n
& Enforcement of Judgment Slander ❑ 368 Asbestos Personal B0 640 R R & Truck
A PROPERTY RIGHT S El 470 Racketeer Influenced and
1-1 151 Medicare Act O 330 Federal Employers injury Product Liaoilit y BE] 650 Airline Regs Corrupt Organizations
Liability El 820 Copyrights
BE 152 Recovery of Defaulted BE] 660 Occupationa l E] 810 Selective Service
Student Loan s PERSONAL PROPERTY Safety Hearth ❑ 830 Paten t
El 340 Marin e E] 850 Securities Commodities/
cI Velerars ❑ 840 Trademar k Exohanpe
El 345 Marine Fro rucl 5 370 Other Frau d BSi 690 Cntre i
B 71 153 Fecovery of 0-21 pa, rrlent Liabi l IL' ❑ 371 Truth in Lendinq ' 875 Customer Cnauena e
of Veterans Benefit s El 350 Motor Vehi-le El 380 Other Personal A LABOR B SOCIAL SECURIT Y 72 USC 341 0
❑ 160 Stockholders SuitS C 355 Motor vehicle Froperty Damage E3 891 Agricultural Act s
E 190 Inc, OCunliac i ;Ldicr Liacoit . 385 b i . open ; Damage 710 r L .11 Ia-fadl 0 861 -,]A ' -,95tf
0 892 Economic Slacrili/arian Act
G 195 C ,•"!lac! Fr_.J„ct Liu L 0 360 Cin'r F .rs .~:'rral Ini,i r °roduci Liabrlit, Al l El 862 Blare- unc ,i2L . C) 893 En:onmenlal Ivlatter s
720 Sao , . "1 . t'ei.ari, i O 863 DIWC DMN.r C 894 Ere nrg, Allocation Act
A REAL PROPERTY A CIVIL RIGH TS PRISONER PET ITI ONS 5 864 SS Z Title XVi 0 895 Freedom o f
730 -aLr .r r 4 J oet ., : n. ricl T 865 Pc-a )5io :. . infnrma' on Ac !
5 210 _an :I Cmd 'mnaua' 441 V :_.Irrn l B,= 510 Mearcn r: vaate7 & DICE- inure - :: 1 T 900 Aopeal of Fee Determination
BD 220 Foreclosur e E] 442 Emplcymenl Sentenc e index Equal Access to justice
❑ 230 Rent Lease & Ee_trni -;] 443 Housing HABEAS CORPUS .
r-. 740 iad,.a, I-ati i, Ai: r FEDE R AL TAX SUITS
B u 530 Genera ! 71 950 Constitutionality o f
U 240 Tons to Land A--commr;Jalrv:.n5,
A ❑ 535 Dear' Penar y Cl 790 Other Labor Lrtioaoo n AD 870 Taxes Si S Pla,n!rff
State Statute s
❑ 245 Ton Product Liability ❑ 444 Welfar e
B ❑ 540 Mandamus & Other 1 or Defendant ) [:1 890 Other Statuto ry Actions
❑ 290 A ll Other Rear Prope rty E] 440 Othe ; Civil Rights B ❑ 550 Civil Right s ACI 791 Empl Ret Inc A ❑ 871 IRS - Third Party A OR B
BE] 555 Prison Condition Security Act
26 USC 760 9
VI . CAUSE OF ACTION (CITE THE U S CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE BRIEF STATEMENT OF CAUSE
DO NOT CITE JURISDICTIONAL STATUTES UNLESS DIVERSITY )
LENGTH OF TRIAL
vi days estimated (for both sides to try entire case)
VII . REQUESTED IN DEMAND $ CHECK YES only if demanded in complaint :

CHECK IF THIS IS A CLASS ACTION
`
COMPLAINT: ❑ UNDER F.R .C .P 23
d
un eifrM ae JURY DEMAND : ❑ YES ACRO
VIII . RELATED CASE ( S) (See instructions )

JUDGE DOCKET NUMBER
IF ANY

INT'L MARINE RESEARCH v. SANDERS MARINE TOW, Et Al Complaint

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Case 0:05-cv-61364-KAM Document 1 Entered on FLSD Docket 08/16/2005 Page 1 of 27

UNITED STATES DISTRICT COURT

SANDERS MARINE TOWING, INC . d/b/a

Plaintiff, INTERNATIONAL MARINE RESEARCH INSTITUTE, INC . (hereinafter

TOWING, INC . d/b/a FT . PIERCE TOWBOAT U .S . (hereinafter "SANDERS"), LARRY

ALLEN BALANCHETT ( hereinafter "BALANCHETT"), MCCULLEY MARINE SERVICES,

INC . (hereinafter "MCCULLY"), INDEMNITY INSURANCE COMPANY OF NORTH

AMERICA ( hereinafter "INAMAR") ; ROYAL MARINE INSURANCE GROUP, INC .

the Federal Rules of Civil Procedure .

donated property for use in the non-profit corporation's activities .

bears hull identification number FLZY2255G98I I .

Beach , Florida, 32960 .

marine salvage and towing business .

more fully below .

years old and a resident of St . Lucie County, Florida.

11 . At all times material to this suit, Defendant BALANCHETT was and is an

course and scope of his employment with Defendant SANDERS .

acts and/or omissions of Defendant BALANCHETT .

marine salvage and towing business .

Philadelphia, Pennsylvania 19103 .

Miami, Florida 33166 .

toward a final destination of Fort Lauderdale, Florida .

stopped working after a period of time .

many hours before it could respond to the call for help .

take the Nikki under tow .

29 . During this time, Captain Nicoll informed Defendants SANDERS and

watering itself so it could restart its engine .

31 . While Defendant BALANCHETT indicated he would send over a pump to de-water

proceed under her own power .

32. At approximately 7 :00 a.m ., Defendants SANDERS and BALANCHETT decided

to commence the tow of the Nikki without de-watering her .

33. Defendants SANDERS and BALANCHETT chose to use a polypropylene line to

tow the Nikki.

toward safety by several hours .

for tow service .

before the vessels got into the Inlet .

and BALANCHETT commenced rendering salvage assistance to the Nikki .

41 . Defendants, SANDERS, BALANCHETT, and MCCULLY assumed care, custody

42. Defendants, SANDERS, BALANCHETT, and MCCULLY failed to properly man

state in the navigable waters in and around Fort Pierce, Florida .

44 . Plaintiff, IMRI, has performed or satisfied all conditions precedent to filing th e

Stroup & Martin 's services.

46 . Plaintiff, IMRI, re-alleges Paragraphs 1, 2, 4 through 13, 22 through 39, 44 and 45

of the Verified Complaint as if fully set forth herein .

47 . General maritime law applies to towing contracts for vessels .

48 . Under the general maritime law, towers impliedly warrant that :

a . Their towing vessel is adequately powered, equipped and efficient to

perform the subject tow ;

b . Reasonable skill, energy, diligence and care will be exercised in

performing the tow ; and ,

be accomplished in weather and circumstances reasonably to be expected .

49 . Defendants SANDERS, BALANCHETT and Phoenix impliedly warranted to

Plaintiff IMRI that :

a. The Phoenix was adequately powered, equipped, and efficient to perform

the subject tow ;

b . Reasonable skill, energy, diligence and care would be exercised i n

performing the subject tow ; and ,

accomplished in the weather and circumstances that were reasonably to be

50 . Defendants SANDERS, BALANCHETT and Phoenix breached their implied

warranty of suitable towing vessel by :

a. Failing to timely respond to the Nikki 's request for assistance ;

b. Failing to de-water the Nikki before towing it to Ft . Pierce Inlet ;

c . Failing to use proper equipment to tow the Nikki;