Sharp v. Hylas Yachts, LLC

United States Court of Appeals
For the First Circuit

Nos. 16-1917, 16-1923

NELSON R. SHARP; DESTINY YACHTS, LLC,

Plaintiffs-Appellees/Cross-Appellants,

v.

HYLAS YACHTS, LLC,

Defendant-Appellant/Cross-Appellee,

GMT COMPOSITES, INC.; FORESPAR PRODUCTS CORP.,

Third Party Defendants-Appellees,

MASTERVOLT, INC.,

Third Party Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Jennifer C. Boal, U.S. Magistrate Judge]

Before

Lynch, Kayatta, and Barron,
Circuit Judges.

Jeffrey S. Baker, with whom Baker and Associates, Daniel P.
Tarlow, and Copani, Tarlow & Cranney, LLC were on brief, for
defendant-appellant.
Robert E. Collins, with whom Clinton & Muzyka PC was on brief,
for third-party defendant-appellee GMT Composites, Inc.
Stefan L. Jouret, with whom Jouret LLC, Warren D. Hutchison,
and LeClair Ryan PC, were on brief, for plaintiffs-appellees.
September 22, 2017
 KAYATTA, Circuit Judge. Following an eleven-day jury

trial and verdict, the district court entered judgment against

Hylas Yachts, LLC and in favor of plaintiffs Nelson Sharp and his

LLC, Destiny Yachts, in the amount of $663,774 plus interest and

costs, on account of numerous defects in a brand-new yacht that

Hylas custom built and sold to plaintiffs. Both sides appeal.

For the following reasons, neither side persuades us to upset the

judgment.

I. Background

To frame the principal issues raised on this appeal

(Hylas's challenges to the verdict and plaintiffs' challenge to

the judgment as a matter of law entered on one of its claims), we

summarize the relevant evidence as a reasonable factfinder might

have viewed it most favorably to plaintiffs. See Atl. & Gulf

Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962);

Acevedo-Garcia v. Monroig, 351 F.3d 547, 565 (1st Cir. 2003).

Our summary begins in June of 2009, when Sharp and Hylas

signed a contract for the purchase and sale of a new seventy-foot

yacht, to be named "Destiny," for $1.99 million. A semiretired

mechanical engineer with a background in hydraulics, Sharp had

owned a boat before—two years prior, he had purchased a fifty-

four-foot sailboat from another company—but never a vessel as big

as the one he planned to buy from Hylas, a luxury yacht seller in

Marblehead, Massachusetts.

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 The purchase agreement between Sharp and Hylas included

detailed provisions devoted to the yacht's commissioning, the

delivery and closing, and assorted warranties. The agreement

provided that the yacht would be commissioned in Ft. Lauderdale,

Florida, and commissioning would "include all work necessary to

install all equipment . . . and place same in good and proper

operating condition." The agreement also included a warranty

provision in which Hylas guaranteed that the yacht delivered to

Sharp would be "of excellent quality, of good workmanship and

materials, seaworthy and suitable for its intended use of extended

ocean cruising." Hylas agreed "for a period of three (3) years

after Delivery, to either fix any warranty defects by the factory

or reimburse [Sharp] for the cost incurred in fixing it." And

Hylas agreed to indemnify Sharp from claims brought by Hylas's

subcontractors and suppliers, and to pay attorneys' fees incurred

by Sharp in handling such claims.

To build the yacht, Hylas contracted with a number of

vendors who supplied, installed, and serviced certain components

of the yacht. GMT Composites, Inc. supplied the boom (a "long

spar used to extend the foot of the sail") and all boom-related

components, including the boom-furling system, part of the

gooseneck assembly, the mandrel, and the pawl assembly. Forespar

Products Corp., another vendor, supplied the mast, the plates

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connecting the mast to the gooseneck assembly, and other parts of

the gooseneck assembly.

Sharp made a substantial down payment to Hylas on

July 12, 2010, from his personal bank account. The remaining

balance was paid at closing from a bank account held by Destiny

Yachts, LLC, a limited liability company Sharp set up. When Sharp

closed on and took possession of the yacht on December 4, 2010, he

did so on Destiny Yachts' behalf as its sole member. From that

point forward, Destiny Yachts owned Destiny in full.

After taking possession of the yacht, Sharp sailed from

Ft. Lauderdale toward St. Thomas in the Caribbean on December 4.

About four or five hours into the maiden journey, Sharp noticed a

hydraulic fitting leaking. He turned the boat around and a Hylas

employee in Ft. Lauderdale met him the following morning and

tightened the fitting. Within a day and a half of Sharp's second

departure from Ft. Lauderdale, though, the fitting began to leak

again. A more "massive failure" occurred a few days later when

the boom came loose, the furling motor connections and hydraulic

lines broke, and hydraulic oil spilled on Destiny's deck. When

Destiny arrived in St. Thomas, Hylas and GMT arranged for a local

rigging company called Island Rigging to repair the boom and the

hydraulics.

Between January 4, 2011, and February 26, 2011, Destiny

sailed through the Caribbean to Grenada. The yacht had numerous

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other problems during its journey, including hydraulic system

malfunctions, malfunctions of the electronic throttle, a broken

generator, failing battery chargers, and toilet malfunctions.

Sharp corresponded repeatedly with Hylas and GMT, expressing his

dissatisfaction with the services Hylas was rendering and

frustration with the continuing problems his crew was

experiencing. Sharp later recalled spending several weeks in

Grenada trying to repair the hydraulic system, which continued to

fail, and the charging system, which by this point "was almost

non-existent." When Sharp could not get these systems repaired,

he decided to return to Ft. Lauderdale so that Hylas could effect

repairs before Destiny would continue on to the Mediterranean.

On April 7, 2011, the yacht left Grenada for

Ft. Lauderdale. During the trip, the clevis pin fell out of the

boom, causing the boom to completely fall off the mast. Sharp

eventually put in at Ft. Lauderdale to undergo repairs. Hylas

sent the hydraulic system manufacturer to replace the controls for

the hydraulic system, and sent the charging system manufacturers

to replace the charging system. A GMT technician repaired the

damage done when the boom fell.

Problems continued to arise. They included boom-

fitting, mandrel, foot-track, and hydraulic oil issues. Destiny

eventually docked in Newport, Rhode Island, where it underwent

eight days of repairs. Graham Robertson, who joined the crew as

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Destiny's captain in June 2011, recalled that GMT performed all of

the repairs; nobody from Hylas was involved.

On June 23, 2011, Destiny left Rhode Island for the

Mediterranean. Sharp received an email from Hylas's vice

president, Kyle Jachney, the day before the yacht departed, stating

that Jachney planned to come see the yacht and conduct sea trials.

Destiny departed before Jachney made it, however. While the yacht

was sailing across the Atlantic, Robertson noticed that in addition

to emerging problems with the mandrel foot track and the sail

feeder, the bolts in the boom fitting connecting the boom to the

mast appeared to be loosening. Destiny could not be sailed, and

had to travel using a motor to get to the Azores for repairs;

nobody there could fix it, so it made its way unrepaired to Palma

de Mallorca.

On June 27, 2011, Sharp forwarded to Jachney an email he

had received from Robertson describing all of these problems, and

Sharp asked Jachney to "provide your insights and suggested course

of action." Roughly two weeks later, Sharp, who had at this point

made his way to Palma de Mallorca to tend to Destiny, emailed

Jachney again to state that he had received no response to his

email request, and that he and Destiny's crew were going to

"proceed[] to the best of [their] ability to effect a fix that

will still salvage part of the Summer in the Mediterranean." Sharp

indicated that he would be forced to conduct repair work and he

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expected Hylas to reimburse him for the work and the value of the

lost use of the yacht. He also reminded Jachney that Hylas did

not ever provide Destiny's hydraulic system schematics despite

Sharp's request for them in early May 2011.

Taking the advice of mechanics who said some of the parts

connecting the boom and mast were undersized, Sharp had the mast

connection rebuilt and increased the size of the clevis. Still,

subsequent emails he sent to Jachney and David Schwartz, the

president of GMT, alerted Hylas and GMT that Destiny continued to

experience problems with loosening screws and bolts in the boom

along with continual hydraulic leaks.

On July 31, 2011, Destiny left Palma de Mallorca and

experienced more problems, this time with the pawl (the component

used to raise and lower the sail). After stopping for more repairs

in Sardinia, Destiny resumed its journey through the Mediterranean

on August 5, 2011.

On October 13, 2011, plaintiffs sued Hylas, alleging

breach of contract, breach of warranties, negligence,

misrepresentation, and violations of Massachusetts General Laws

chapter 93A. Hylas impleaded GMT and Forespar, and GMT leveled

fourth-party contract claims against plaintiffs based on a bill it

issued that was allegedly never paid.

As Destiny headed back across the Atlantic in November

2011, more screws in the boom-to-mast connection broke or loosened.

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Robertson noticed that bolts in the gooseneck were shearing; he

instructed the crew to check them twice a day, and at least one

bolt required tightening at each check. The pawl assembly again

had problems, as did the bolts in the gooseneck assembly, so the

yacht sailed the last few days into the Carribean under reduced

sail. After the yacht made its way to Newport, Rhode Island from

Ft. Lauderdale in June 2012, Sharp eventually had the boom replaced

in early September 2012. No further significant problems ensued.

The case went to trial in July 2015. Plaintiffs claimed

damages of $1,019,066, consisting of $320,000 in lost charter

revenue, $364,514 in depreciation during the 8-1/2 months when

Destiny could not be used, $140,789 to replace the gooseneck and

boom, and assorted lesser amounts for other repairs, travel, lost

time, and marina and diversion expenses.

The jury signed a special verdict form in which they

found that Hylas's breach of contract and breaches of implied and

express warranties rendered it liable to Sharp in the amount of

$663,774. The jury also found that GMT breached its contract with

Hylas and breached an express warranty and implied warranties of

merchantability and workmanlike conduct, and that at least one of

these breaches proximately caused harm to Hylas. But the jury

found that Hylas was entitled to no damages from GMT, the liability

findings notwithstanding. The jury found against Hylas on all of

its contract claims against Forespar, and found that plaintiffs

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did not breach a contract with GMT or become unjustly enriched by

failing to pay an unpaid bill. A few months later, the magistrate

judge found against plaintiffs on their chapter 93A claims.

Hylas's post-trial motions were denied, and Hylas and plaintiffs

both appealed.

II. Discussion

Hylas complains that the jury verdict holding it liable

to Sharp for a substantial sum was necessarily inconsistent with

the jury's verdict that GMT, the boom supplier, breached

contractual commitments and warranties given to Hylas, yet owed

Hylas no damages. Hylas also argues that the district court

improperly dismissed its indemnification claim against GMT, and

that the verdict was tainted by erroneous instructions, improperly

admitted evidence, and a failure to hold Sharp accountable for the

spoliation of evidence. Plaintiffs, in turn, press on cross appeal

the contention that they were entitled as a matter of law to

multiple damages and attorneys' fees under Massachusetts state

law. Mass. Gen. Laws ch. 93A, § 11. As we will explain, none of

these arguments persuade us.

A. Damages evidence

Hylas claims that the trial court abused its discretion

in allowing plaintiffs to put into evidence and claim as damages

the $320,000 in alleged lost charter revenues and the roughly

$536,000 in depreciation, crew salaries and expenses, fuel costs,

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marina charges, and Sharp's own time and expense. In maritime

law, such amounts are sometimes referred to as "demurrage" or

"detention damages." Hylas's argument is that Destiny was a

pleasure craft owned for personal use, not a commercial charter,

hence detention damages are not recoverable in this breach of

contract action.

Hylas rests this argument on the Supreme Court's

decision in The Conqueror, 166 U.S. 110 (1897), a case in which

the Court found that the owner of a pleasure yacht could not

recover damages for loss of pleasure use. Id. at 133. The Court

observed that "the loss of profits or of the use of a vessel

pending repairs, or other detention, arising from a collision or

other maritime tort, and commonly spoken of as 'demurrage,' is a

proper element of damage," but only "when profits have actually

been, or may be reasonably supposed to have been, lost, and the

amount of such profits is proven with reasonable certainty." Id.

at 125. With no evidence that the yacht owner had any interest in

engaging the vessel in "profitable commerce," the Court found that

such proof was lacking. Id. at 133.

The Conqueror arose under markedly different

circumstances: It disposed of an action alleging a maritime tort

under admiralty law, not contract claims possibly governed by

Massachusetts law. Hylas does not expressly argue that federal

maritime law applies, nor do plaintiffs argue that it does not.

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Notably, however, the parties did not object to the district

court's instruction to the jury that plaintiffs are not entitled

to any damages based on "any loss of use . . . for recreational

purposes," because "[m]ere inconvenience arising from an inability

to use the vessel for purposes of pleasure is not recoverable."

They also agreed to the district court's instruction that lost

profits and lost charter revenues could be recovered if proven

"with a reasonable degree of certainty." These instructions

suggest that the parties implicitly agreed to the application of

The Conqueror's framework in this case. We therefore assume,

without deciding, that The Conqueror applies fully to plaintiffs'

claims; hence, Sharp cannot recover damages for lost pleasure use

of a pleasure vessel.

Observing that plaintiffs did not produce brochures,

hire a broker, or otherwise make any effort to charter Destiny at

any point during the several months they claimed losses prior to

filing suit, Hylas argues that it was inappropriate for the jury

to consider evidence of the damages plaintiffs allegedly incurred

in lost profits and use of Destiny pending repairs.1 The

1Specifically, Hylas takes issue with Trial Exhibit 38, a
summary of Sharp's calculations of the damages he sought against
Hylas, which was admitted over objection during Sharp's testimony
at trial. Because we find that it was not an abuse of discretion
for the magistrate judge to allow Sharp's testimony and evidence
concerning detention and demurrage damages, we need not address
plaintiffs' argument that Hylas failed to preserve its objection
by not repeating its objection at the time Exhibit 38 was finally

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Conqueror's holding, however, is not so broad. While it does

provide that the owner of a pleasure craft may not recover based

on the loss of pleasure use that occurs when a vessel needs

repairs, it does not purport to bar the owner of a multipurpose

vessel from recovering damages attributable to lost business use.

See Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 864–65 (9th

Cir. 2011) (distinguishing The Conqueror and affirming an award of

business-related and nonspeculative loss-of-use damages). The

Conqueror did not reach so broadly because the record was devoid

of any testimony "tending to show that [the vessel owner] bought

[the vessel] for hire, or would have leased [the vessel] if he had

been able to do so." 166 U.S. at 133–34. Circuit courts have, in

turn, adopted a rule allowing owners of multipurpose vessels to

recover detention and demurrage damages where owners can show with

"reasonable certainty" that those damages arose from lost business

use rather than lost pleasure use. See, e.g., Cent. St. Transit

& Leasing Corp. v. Jones Boat Yard, Inc., 206 F.3d 1373, 1376–77

(11th Cir. 2000); Oswalt, 642 F.3d at 864–65.

According to Hylas, the "reasonable certainty" standard

can only mean that "to be awarded damages for lost profits, a

recreational vessel must have a history of income. Absent such

history, these damages are too speculative and cannot be awarded."

entered into evidence and by stipulating to the admission of
another exhibit containing a copy of the contents of Exhibit 38.

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But no court has crafted so strict a rule. Instead, courts have

consistently observed that "what constitutes 'reasonable

certainty' is of necessity a fact-intensive inquiry in which the

issue of evidentiary sufficiency can only be determined on a case-

by-case basis." Yarmouth Sea Prods., Ltd. v. Scully, 131 F.3d

389, 395 (4th Cir. 1997). Although courts typically require a

showing that the vessel "has been engaged, or was capable of being

engaged in a profitable commerce," Delta S.S. Lines, Inc. v.

Avondale Shipyards, Inc., 747 F.2d 995, 1001 (5th Cir. 1984)

(internal quotation marks omitted), we have previously stated:

The burden of proof imposed on a vessel owner
claiming demurrage is not excessive:
"It is not necessary for him to show by
direct evidence that he would have employed
his vessel . . . . It suffices if he shows a
state of facts from which a court or jury can
find that there was an opportunity to do so,
and that he would have availed himself of it."

Trans-Asiatic Oil Ltd., S.A. v. Apex Oil Co., 804 F.2d 773, 782

(1st Cir. 1986) (quoting Skou v. United States, 478 F.2d 343, 346

(5th Cir. 1973)); see also Jackson v. Innes, 121 N.E. 489, 491

(Mass. 1919) (citing The Conqueror for the proposition that a

defendant "cannot avoid liability" for "the loss of the use of [a]

boat during [a] period of detention" merely because "no income was

derived from it," and observing that "evidence of the fair market

rental value for the use of the boat was admissible on the question

of damages").

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 Hylas's fallback argument is that the evidence was

insufficient to warrant treating Destiny as other than a pleasure

craft for the noncommercial use of Sharp and his friends and

family. Hylas notes that the evidence shows that the insurance

policy on Destiny covered only Sharp's private use of the yacht,

and that Sharp did not take a business deduction on the yacht when

he filed his taxes the year he made the purchase. But the record

also includes Sharp's testimony that he formed Destiny Yachts LLC—

prior to closing on and taking possession of Destiny—"because [he]

was going to charter the yacht," so he "wanted to put it into,

essentially, a corporate shell." Sharp explained that seventy-

foot yachts like Destiny are very expensive to maintain, and he

did not plan to live his life at sea, so he intended from the start

to charter the yacht during the extensive amount of time each year

that he himself would be unavailable to sail. The record also

included undisputed evidence that Destiny was eventually regularly

chartered at a rate of $20,000 per week after all repairs were

completed. The fact that this occurred after suit was filed is a

talking point for Hylas's attorney, but not a bar to a jury

concluding that Sharp would have "availed himself" of the

opportunity to charter Destiny sooner if it were not for the

yacht's constant need of repairs. Trans-Asiatic Oil, 804 F.2d at

782.

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 All in all, the trial court had before it a mixed record,

with some evidence supporting the conclusion that Sharp would have

chartered the yacht but for its troubles, and other evidence

pointing to the contrary. This is why we have jurors. And in

this case, the duly empaneled jurors were properly instructed that

plaintiffs had to prove their lost profits to a "reasonable degree

of certainty." On such a record, the trial court certainly did

not abuse its discretion in allowing plaintiffs to offer their

evidence of damages for the jury's evaluation.

B. Spoliation of evidence

In June of 2012, plaintiffs notified Hylas that they

planned on replacing the boom in September. Seven weeks later,

Hylas requested to conduct a sea trial of Destiny. The following

week, Hylas conducted an inspection of Destiny, and voiced no

concerns regarding the vessel's seaworthiness. On August 31, the

magistrate judge ordered plaintiffs to turn over the yacht to Hylas

for a sea trial. When plaintiffs did so the following week, the

yacht was unsafe to sail. Before Hylas could reschedule a sea

trial, plaintiffs replaced the boom. Hylas claimed that by

replacing the boom, plaintiffs had effectively and in bad faith

destroyed evidence. It moved for sanctions, seeking dismissal or

at least an instruction to the jury that they were "entitled in

[their] deliberations to draw a negative inference form [sic] the

fact that the Plaintiffs have precluded by their conduct the

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Defendants from adequately and fairly testing the components while

the Yacht is under sail."

In response to Hylas's request for dismissal, the

district court held a two-day evidentiary hearing on spoliation.

The court ultimately concluded that "the vessel was delivered for

the sea trials in a conditions [sic] in which it was dangerous to

sail." For that reason, the district court ordered plaintiffs to

"pay the defendants' reasonable expenses in arranging to be present

at the sea trial." The district court declined, however, to

dismiss plaintiffs' claims against Hylas. Later, the district

court also declined to give an adverse-inference instruction to

the jury concerning spoliation of evidence. On appeal, Hylas

challenges the district court's refusal to grant its requests,2

which we review for abuse of discretion. See Booker v. Mass. Dep't

of Pub. Health, 612 F.3d 34, 46 (1st Cir. 2010).

Neither an adverse-inference instruction nor dismissal

was required. Although it is true that "an adverse inference

2 In a heading in its opening brief, Hylas frames its argument
as asserting that it was an abuse of discretion not to impose "any
sanction . . . based on spoliation of evidence." (Emphasis added).
But beyond this general statement, Hylas does not advance any
further argument that the district court should have imposed some
sanction other than dismissal. Any such argument is therefore
waived. See Vallejo Piedrahita v. Mukasey, 524 F.3d 142, 144 (1st
Cir. 2008) ("It is well settled that issues adverted to on appeal
in a perfunctory manner, unaccompanied by some developed
argumentation, are deemed to have been abandoned."(internal
quotation marks omitted)).

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instruction may be allowed when a party fails to produce [evidence]

that exists or should exist and is within [the party's] control,"

Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 20 (1st

Cir. 2009), such an instruction "usually makes sense only where

the evidence permits a finding of bad faith destruction." United

States v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010). The record

in this case supports a contrary conclusion: Three months in

advance, plaintiffs proactively informed Hylas that they intended

to replace the boom in early September. As best the briefs

reflect, Hylas never insisted that the replacement be put off until

after sea trials were completed. Plaintiffs sent scores of

pictures and measurements to Hylas to allow Hylas to prepare for

trial. Moreover, the record contained evidence from which the

district court could have concluded that during the two years that

passed from the time the yacht was commissioned to the date the

boom was replaced, Hylas had a number of other opportunities to

examine the boom, inspect the yacht, and conduct sea trials. Aside

from Hylas's vague reference to the generalized prejudice it

suffered from being "precluded from presenting a valid defense" to

plaintiffs' claims, Hylas is unable to explain what it thinks it

might have discovered upon inspection of the boom that it could

not learn from the materials and information plaintiffs provided,

or why the time it was given to make accommodations in light of

the impending boom replacement was insufficient. In sum, the

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district court did not abuse its discretion in concluding, in

effect, that "no adverse-inference instruction would make sense

here." Laurent, 607 F.3d at 903.

If an adverse-inference instruction was not required,

sanctioning the plaintiffs with dismissal was also not required.

"The intended goals behind excluding evidence, or at the extreme,

dismissing a complaint, are to rectify any prejudice the non-

offending party may have suffered as a result of the loss of

evidence and to deter any future conduct, particularly deliberate

conduct, leading to such loss of evidence." Collazo-Santiago v.

Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir. 1998). "While a

district court has broad discretion in choosing an appropriate

sanction for spoliation, 'the applicable sanction should be molded

to serve the prophylactic, punitive, and remedial rationales

underlying the spoliation doctrine.'" Silvestri v. General Motors

Corp., 271 F.3d 583, 590 (4th Cir. 2001) (quoting West v. Goodyear

Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). We have

also counseled that, in light of our "prefer[ence] that

adjudications be driven by the merits of a case," McKeague v. One

World Techs., Inc., 858 F.3d 703, 707 (1st Cir. 2017), dismissal

should be granted only in extreme cases. Collazo-Santiago, 149

F.3d at 28 (citing Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d

101, 107 (1st Cir. 1995)). Here, where Hylas cannot identify the

prejudice it allegedly suffered and where the evidence fails to

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compel a finding that plaintiffs acted in bad faith, the district

court was not required to do more than it did.

C. Implied indemnity

In its first amended third-party complaint, Hylas sought

indemnification against GMT under Massachusetts law. Although

Hylas conceded that it did not have an express indemnification

agreement with GMT, Hylas claimed that it nevertheless had an

indemnity relationship with GMT under an implied contract theory

or a tort theory. See Araujo v. Woods Hole Martha's Vineyard,

Nantucket Steamship Auth., 693 F.2d 1, 2 (1st Cir. 1982)

(describing the three ways an indemnity relationship may arise).

By "implied contractual indemnity," Hylas means that, in addition

to its warranty obligations, GMT was responsible for "mak[ing]

good any loss or damage incurred by [Hylas] while acting at [GMT's]

request for [its] benefit"; in other words, for reimbursing Hylas

for any and all damages incurred by Sharp in connection with the

boom. Although the claim survived a summary judgment motion from

GMT prior to trial, it eventually fell to a motion for judgment as

a matter of law. The district court found that the record was

devoid of evidence that showed the contractual relationship

between Hylas and GMT to be of the type that can give rise to

implied indemnity. It also found that "common law" indemnification

could not be shown because common law indemnification exists under

Massachusetts law only in tort actions.

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 Hylas contends that the district court erred in

dismissing the indemnity claim, arguing that the record included

enough evidence to withstand summary adjudication on the question

whether Hylas had an implied contractual indemnity relationship

with GMT.3 Pointing to evidence that GMT conducted repairs, gave

advice, offered redesigns, and interacted directly with plaintiffs

and third-party repairers of GMT components, Hylas argues that GMT

was far more than just a boom vendor that contracted with Hylas as

its vendee. Rather, says Hylas, this evidence, along with the

warranties GMT provided to Hylas on the boom and the service and

support GMT provided "above and beyond its claimed contractual

obligations," shows that GMT built a "special relationship" with

Hylas whereby Hylas would not be liable to others for any boom-

related damages. We review the district court's decision granting

GMT's motion for judgment as a matter of law de novo, viewing the

evidence and the reasonable inferences that can be drawn therefrom

in the light most favorable to Hylas. See Delgado v. Pawtucket

Police Dep't, 668 F.3d 42, 50 (1st Cir. 2012).

In contending that it had a "special relationship" with

GMT, Hylas misunderstands the way a relationship between parties

can override the absence of an express indemnity agreement to

create an indemnification obligation under Massachusetts law.

3 Hylas does not challenge the district court's finding that
common law indemnity could not be shown.

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Contrary to Hylas's contention, merely going "above and beyond"

what is required under a contract does not create a "special

relationship" that implies indemnity. Rather, for a relationship

to generate an obligation to indemnify, the relationship must be

"generally recognized" as special. Fireside Motors, Inc. v. Nissan

Motor Corp., 479 N.E.2d 1386, 1391 (Mass. 1985). Hylas does not

contend that its relationship with GMT is generally recognized as

one that establishes indemnity. Instead, it argues that a plethora

of evidence adduced at trial demonstrated that GMT was more

involved with repairs than the contract demanded, working directly

with plaintiffs, assuming primary control over everything related

to the boom, and demonstrating its willingness to be more than

merely a vendor who relinquished its handiwork to its vendee.

Hylas essentially contends that "'special factors' surround[ed] the

contractual relationship which indicate[d] an intention by one

party to indemnify [the other] in [this] particular situation."

Fall River Housing Auth. v. H.V. Collins Co., 604 N.E.2d 1310,

1313 (Mass. 1992) (quoting Decker v. Black & Decker Mfg. Co., 449

N.E.2d 641, 644 (Mass. 1983)); see also Fireside Motors, 479 N.E.2d

at 1391 (recognizing that a right to indemnification may be implied

"when there are unique special factors demonstrating that the

parties intended that the putative indemnitor bear the ultimate

liability" (internal quotation marks omitted)); E. Amanti & Sons,

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Inc. v. R.C. Griffin, Inc., 758 N.E.2d 153, 162–63 (Mass. App. Ct.

2001).

The nature of the relationship between the parties may

be relevant to whether there exist "special factors" that would

imply indemnity, but Massachusetts courts "infer[] the existence

of indemnity agreements only when the terms of the contract

themselves contemplate[] such indemnification." Larkin v. Ralph

O. Porter, Inc., 539 N.E.2d 529, 532 (Mass. 1989); see also Decker,

449 N.E.2d at 643 (distinguishing between an "implied contract of

indemnity" and a tort-based "obligation implied from the

relationship of the parties"). On the few occasions when the

Supreme Judicial Court of Massachusetts has found an implied

contractual right to indemnification, it has done so where the

natural reading of the contract itself established an indemnity

relationship between the parties. See Larkin, 539 N.E.2d at 532

(collecting cases); Monadnock Display Fireworks, Inc. v. Town of

Andover, 445 N.E.2d 1053, 1056–57 (Mass. 1983) (finding town

responsible for indemnifying a fireworks company for damages

arising from town's failure to furnish police for crowd control it

had promised to provide); Great Atl. & Pac. Tea Co. v. Yanofsky,

403 N.E.2d 370, 374 (Mass. 1980) (inferring, from "express

agreement" to make all outside repairs, existence of agreement to

indemnify for damages from failure to repair).

- 23 -
 The district court correctly found that no reasonable

juror could infer the existence of an indemnity relationship from

the contract between Hylas and GMT. Although Article IV of the

contract set forth a warranty "that the Boom delivered to [Hylas]

shall be free of all defects of workmanship and engineering, to

the extent that such engineering is provided by [GMT], for one

year from the date of delivery," this was the "sole warranty" GMT

gave to Hylas, and it was "strictly limited" by express terms.

GMT warranted that it would repair components that turned out to

be defective, but Hylas would be responsible for "transportation

to and from the repair facility and for all costs associated with

removing and installing the equipment in the boat." GMT made "no

warranty . . . as to the duration of any delay necessary for

repairs," and expressly disclaimed responsibility "for any damage

to the original purchaser or any others for loss of time,

inconvenience, loss or damage to personal property, injury to

persons, loss of revenue or any other damages consequential or

otherwise." Nothing about these warranties, or any other aspect

of the contract between GMT and Hylas, signals that the parties

contemplated indemnification.4

4GMT and Hylas each devote considerable attention to the
question whether the evidence did or did not show that they had
forged an ordinary vendor–vendee relationship. But even if GMT
was contractually obligated to do more than a typical vendor, which
the evidence arguably shows here, that would not be the same as
having an indemnification obligation.

- 24 -
 As a last resort, Hylas falls back on the argument that

judgment as a matter of law was inappropriate because the doctrine

of implied indemnity, at least in Massachusetts, is not well

defined, as at least one district court has noted: "Massachusetts

law on the issue of implied contractual indemnification can perhaps

best be described as unsettled." Steffen v. Viking Corp., 441 F.

Supp. 2d 245, 251 (D. Mass. 2006). According to Hylas, the fact

that the law of implied indemnity may not be fully settled in

Massachusetts should prevent a court from being able to grant

judgment as a matter of law on the issue. This argument confuses

the summary judgment requirement that the material facts be

indisputable with a nonexistent requirement that the relevant law

be clear and firmly entrenched. In the absence of evidence tending

to support the existence of the "special factors" from which

Massachusetts courts have inferred a right to indemnification, the

district court was correct to grant judgment as a matter of law in

favor of GMT.

D. Jury instructions

In its tenth instruction, the court admonished the jury

that if they found "that the boom, mast, or related components

were defective, or that repairs performed by GMT were not performed

properly, by virtue of the contract, those problems are

attributable to Hylas." Out of context, this instruction could

have been read in a rather nonsensical manner as indicating that

- 25 -
Hylas could not recover from GMT even if GMT breached its

obligations owed to Hylas. And Hylas objected on these grounds.

In context, though, the instruction was clearly directed

at explaining that, as between plaintiffs and Hylas, Hylas could

not escape liability by passing the buck to its supplier, GMT.

The trial court first described plaintiffs' breach-of-contract

claim against Hylas; then it described Hylas's waiver defense

against plaintiffs' breach-of-contract claim. Next, the court

instructed the jury on plaintiffs' breach-of-express-warranties

claim against Hylas, plaintiffs' claim that Hylas violated the

implied warranty of merchantability, and plaintiffs' claim that

Hylas violated the implied warranty of fitness for a particular

purpose. The court instructed the jury that plaintiffs' breach-

of-warranty claims could not succeed if the jury found plaintiffs

did not give reasonable notice.

Only after these instructions concerning plaintiffs'

claims against Hylas were given did the court turn its attention

to Instruction 10, explaining to the jury the law that governed

Hylas's claims against GMT. When it did, the court repeated the

elements of a breach-of-contract claim, and reminded the jury of

the elements of express- and implied-warranty claims, this time

with reference to GMT's potential liability to Hylas. The court

explained that Hylas could succeed on its claim of breach of

contract against GMT if the jury found by a preponderance of the

- 26 -
evidence that "Hylas performed its obligations under the

contract," GMT "breached or violated the contract," and "Hylas

suffered damages as a result of the breach of the contract." The

jury heard as well that Hylas would have an "entitlement to

recover" from GMT if the jury found GMT breached certain

warranties.

But, says Hylas, counsel for Forespar in closing pointed

to Instruction 10 as meaning that problems with the boom, mast, or

related components would be attributable to Hylas, rather than

Forespar. Hylas argues that that argument by Forespar spun the

instruction in a manner that would cause the jurors to conclude

that no damages should be awarded against GMT. As we have just

noted, though, the judge expressly told the jurors that Hylas would

be entitled to recover damages from GMT if the requisite findings

were made. Pointing out that Hylas—rather than Forespar—would be

liable to plaintiffs for problems with the boom is not inconsistent

with that instruction.

"[A] single instruction to a jury may not be judged in

artificial isolation, but must be viewed in the context of the

overall charge." Cupp v. Naughten, 414 U.S. 141, 146–47 (1973);

see McDonald v. Town of Brookline, 863 F.3d 57, 65 (1st Cir. 2017)

("[O]ur role is to evaluate whether the jury instructions as a

whole adequately explained the law or whether they tended to

confuse or mislead the jury on controlling issues . . . .").

- 27 -
Viewing the instructions as a whole in this case, we see no reason

to think that the jurors transplanted a portion of the plaintiffs-

versus-Hylas instructions into the Hylas-versus-GMT instructions

in a manner that would have made the latter instructions

nonsensical.5

E. Verdict inconsistency

Finally, we arrive at Hylas's central argument on

appeal: that a new trial should be ordered because the jury's

verdict was inconsistent.

The jury returned a special verdict in which it found

that Hylas (1) breached an express warranty to plaintiffs;

(2) breached an implied warranty of merchantability to plaintiffs;

(3) breached an implied warranty of fitness for a particular

purpose to plaintiffs; and (4) breached its contract with

plaintiffs. Answering "yes" to the question whether "any of the

breaches" they found caused plaintiffs harm, the jury determined

that plaintiffs were entitled to $663,774 from Hylas. Next, the

jury also found that GMT (1) breached an express warranty to Hylas;

(2) breached an implied warranty of merchantability to Hylas;

(3) breached an implied warranty of workmanlike product; and

(4) breached its contract with Hylas. Although the jury found

5
A fortiori, Hylas's identified but unpreserved objection
to Instruction 11 (like 10, but referencing the Island Rigging
repairs) fails.

- 28 -
that GMT proximately caused harm to Hylas, it ultimately concluded

that Hylas was not entitled to any damages from GMT.

Hylas does not dispute that the evidence in the record

was sufficient to show that Hylas breached its contract with

plaintiffs and breached the warranties expressly and impliedly

provided therein. Rather, Hylas contends that because the weight

of the evidence adduced by plaintiffs at trial concerned the

defective boom GMT provided and the damage caused each time the

boom collapsed, fell off the mast, or otherwise malfunctioned, the

jury's verdict awarding substantial damages to plaintiffs from

Hylas cannot be reconciled with the decision to award no damages

to Hylas from GMT, the manufacturer and servicer of the boom.

We are "substantial[ly] reluctan[t] to consider

inconsistency in civil jury verdicts a basis for new trials."

McIsaac v. Didriksen Fishing Corp., 809 F.2d 129, 133 (1st Cir.

1987) (quoting Merchant v. Ruhle, 740 F.2d 86, 91 (1st Cir. 1984));

see also Climent-García v. Autoridad de Transporte Marítimo y Las

Islas Municipio, 754 F.3d 17, 20 (1st Cir. 2014) ("The tide runs

strongly against a litigant seeking to overturn a jury verdict.").

"When a party claims that jury verdicts are inconsistent, we

'attempt to reconcile the jury's findings, by exegesis if

necessary.' This exercise involves determining whether the jury

could have, consistent with its instructions, rendered the

challenged verdicts." Davignon v. Hodgson, 524 F.3d 91, 109 (1st

- 29 -
Cir. 2008) (citation omitted) (quoting Acevedo-Diaz v. Aponte, 1

F.3d 62, 74 n.15 (1st Cir. 1993)).

It is true that plaintiffs presented a substantial

amount of evidence and testimony concerning the defective design,

manufacture, and installation of the boom provided by GMT, and the

failure of subsequent repairs (rendered by GMT) to fully resolve

the problem. But Hylas would have us conclude, from the sheer

volume of evidence demonstrating that boom failures resulted in

harm to the plaintiffs, that the jury could not consistently find

Hylas responsible for over $600,000 in damages to plaintiffs while

also finding that GMT owed Hylas nothing. For several reasons, we

disagree.

The jury was asked whether any of the breaches by GMT

were a "proximate (substantial) cause of any harm suffered by

Hylas," to which they responded, "Yes." Hylas places a lot of

weight in this answer. But all it means is that the jury concluded

that GMT's breaches were a cause of at least some of Hylas's harm.

The evidence, in turn, supported a finding that GMT fixed or paid

for fixing many problems with the boom. So, if it was these

problems that constituted GMT's breach causing harm to Hylas, the

jury may have concluded that any resulting loss to Hylas or to the

plaintiffs had already been remedied. To the extent that there

were alleged problems with the boom that GMT did not remedy, the

jury could have found those problems were caused by something other

- 30 -
than a GMT warranty breach (e.g., interfacing components, shoddy

outside repair work, or improper use6). Or the jury may not have

included other boom costs in plaintiffs' damage award.

There was, after all, evidence that the boom was but one

of many components of the yacht that suffered multiple failures of

great enough magnitude to require repair and prevent chartering.

For example, the jury heard testimony that the hydraulics—which

were used to operate "just about everything required to run the

boat"—failed "three, four times a week" when plaintiffs first took

possession of Destiny, and that Hylas's failure to provide

installation drawings or operation manuals (as required by its

contract with plaintiffs) made repair work impossible in some

situations. Sharp also testified that during some of the most

significant incidents of equipment failure, including a "[c]ouple

in particular" in which repairs to the hydraulic systems were

needed, "there were big delays in . . . communication" after he

reached out to Hylas for support. In addition, evidence was

6 For example, the jury heard evidence that Hylas changed
hydraulics systems and added a pressure intensifier to Destiny
without informing GMT. They also heard testimony that "if . . .
hooked up to the boom hydraulics, [an intensifier] could put excess
pressure above what [GMT] would assume onto [its] system," and
that the intensifier was indeed attached to the boom. On another
occasion, heard the jury, the boom fell off the mast not because
GMT failed to properly service it, but because Island Rigging
(acting on Hylas's behalf) failed to properly set screws during a
repair. And evidence was offered indicating that user error caused
at least some of the boom problems.

- 31 -
presented that after Island Rigging made repairs in St. Thomas,

Destiny experienced failures of its electronic throttle,

generator, battery chargers, and toilets. And the jury heard

testimony that the mast, too, had problems that required repair.

Sharp and Robertson both testified that a GMT technician who was

sent twice to conduct repairs on Destiny had expressed confusion

about "why he was there," because the required repairs were not

his expertise. Virtually every time Destiny was forced to stop to

fix mechanical failures, repairs were required for, and made to,

more than just the GMT boom. It is thus not necessarily true that

the damages associated with repairs were for boom failures.

Furthermore, even if the jury did award damages for some

of the expenses associated with repairing and replacing the boom,

they could have found that the damages arose from Hylas's breaches

of contract and warranty, not GMT's. To explain why, we must

briefly revisit the warranties GMT and Hylas gave.

As we mentioned above, GMT warranted to Hylas that "the

Boom delivered to [Hylas] shall be free of all defects of

workmanship and engineering, to the extent that such engineering

is provided by [GMT], for one year from the date of delivery."

GMT promised to pay to repair defectively manufactured components

it provided, but expressly stated that Hylas would be responsible

for "transportation to and from the repair facility and for all

costs associated with removing and installing the equipment in the

- 32 -
boat." GMT made "no warranty . . . as to the duration of any delay

necessary for repairs," and expressly disclaimed responsibility

"for any damage to the original purchaser or any others for loss

of time, inconvenience, loss or damage to personal property, injury

to persons, loss of revenue or any other damages consequential or

otherwise."

Hylas, by contrast, more broadly warranted that the

yacht would "be of excellent quality, of good workmanship and

materials, seaworthy and suitable for its intended use of extended

ocean cruising," and guaranteed for three years "to either fix any

warranty defects by the factory or reimburse the Buyer for the

cost incurred in fixing it." Hylas also agreed that "[a]ny defects

by the factory for issues that apply to the deck and hull for a

period of ten (10) years shall be the responsibility of [Hylas]."

An even more obvious and relevant difference between

these warranties is that GMT's warranty to Hylas does not cover

consequential damages, including all detention or demurrage

damages, which were enough by themselves to account for the entire

damage award. Therefore, plaintiffs could have suffered damages

of a consequential type that were attributable to Hylas, and for

which GMT bore no responsibility. Hylas's principal rejoinder to

this point is that the detention damages were caused by problems

with the boom, so GMT should owe Hylas damages for the cost of

repair or replacement of the boom. As we have explained, this is

- 33 -
not clearly correct. But even if the boom problems caused some of

the detention damages, it may well have been that those boom

problems were the ones for which GMT paid, or were caused by

someone other than GMT in using or repairing the yacht. Perhaps

the jury found that GMT did, in fact, breach its contract and

warranty to Hylas because the boom it provided was faulty, but did

not breach the contract's requirement that GMT pay for repairs.

After all, the jury heard evidence that all but one of the repairs

GMT performed were done at no charge to plaintiffs or Hylas, and

the one time GMT charged plaintiffs directly for the repair, no

money ever changed hands. The jury then may have found the

additional costs associated with boom repairs were for

transportation, removal or installation, delay, loss of time,

inconvenience, and loss of revenue—items expressly excluded from

GMT's warranty to Hylas, but potentially included in Hylas's

warranty to plaintiffs, to pay for whatever "cost[s]" plaintiffs

"incurred" to fix the yacht.

"An appellate court confronted with a claim of

inconsistent special verdicts 'must affirm if there is a view of

the case that makes the jury's answers to the interrogatories

consistent.'" Kavanaugh v. Greenlee Tool Co., 944 F.2d 7, 9 (1st

Cir. 1991) (quoting Mashpee Tribe v. New Seabury Corp., 592 F.2d

575, 590 (1st Cir. 1979), cert. denied, 444 U.S. 866 (1979)). For

- 34 -
the foregoing reasons, there is such a view here. Hylas's verdict-

inconsistency claim therefore fails.7

F. Chapter 93A claim

We turn now to plaintiffs' appeal. In their complaint,

plaintiffs alleged that Hylas violated Massachusetts General Laws

chapter 93A by willfully or knowingly breaching its warranties to

the plaintiffs. The parties reserved the chapter 93A claims for

post-trial disposition by the court. After trial concluded and

the jury found in favor of plaintiffs on their breach-of-contract

and warranty claims, the parties submitted proposed findings of

fact and rulings of law to the district court. The district court

found in favor of Hylas.

On appeal, plaintiffs argue that because the jury found

Hylas breached its warranties to plaintiffs, the district court

was required to find a chapter 93A violation occurred as well. In

plaintiffs' estimation, a breach of warranty under Massachusetts

law is a per se chapter 93A violation. Plaintiffs alternatively

argue that even if chapter 93A liability is not the per se rule

anytime a breach of warranty has been found, Hylas's breaches of

warranty were nonetheless deceptive and unfair in contravention of

chapter 93A. Plaintiffs therefore ask that we reverse the district

7Finding no error by the district court, we also reject
Hylas's argument that the district court abused its discretion by
refusing to order a new trial.

- 35 -
court and remand for the district court to consider whether

chapter 93A's damages multiplier should apply and to calculate an

award of attorneys' fees. We review the district court's legal

conclusions de novo, but we conduct that review based on the facts

as found by the district court except where those factual findings

are clearly erroneous. McDermott v. Marcus, Errico, Emmer &

Brooks, P.C., 775 F.3d 109, 115 (1st Cir. 2014).

Chapter 93A prohibits "unfair methods of competition and

unfair or deceptive acts or practices in the conduct of any trade

or commerce." Mass. Gen. Laws ch. 93A, § 2(a). It provides that

a court should be "guided by the interpretations given by the

Federal Trade Commission and the Federal Courts to section 5(a)(1)

of the Federal Trade Commission Act [FTCA]," id. § 2(b), and that

the Massachusetts Attorney General may implement "rules and

regulations interpreting the provisions" of Chapter 93A, section

2(a) so long as those rules and regulations are not "inconsistent

with the rules, regulations and decisions of the Federal Trade

Commission and the Federal Courts interpreting the provisions of

[the FTCA]," id. § 2(c).

Although "whether or not particular conduct violates

Chapter 93A is generally determined on a case-by-case basis,"

McDermott, 775 F.3d at 117 (citing Kattar v. Demoulas, 739 N.E.2d

246, 257 (Mass. 2000)), Massachusetts courts have identified a few

situations in which violation of some other law constitutes a per

- 36 -
se violation of chapter 93A. For example, as identified in

McDermott, the Supreme Judicial Court of Massachusetts has

recognized that a violation of the state unfair claims settlement

act, Mass. Gen. Laws ch. 176D, is itself a violation of chapter 93A

pursuant to chapter 93A, section 9(1). Id.; see Polaroid Corp. v.

Travelers Indem. Co., 610 N.E.2d 912, 917 (Mass. 1993). Likewise,

a violation of the state home improvement contractor's law, Mass.

Gen. Laws ch. 142A, has been found to be a violation of chapter 93A

not based on a standalone provision of chapter 93A so providing,

but based on language in the home improvement contractor's law

itself providing that "[v]iolations of any of the provisions of

this chapter shall constitute an unfair or deceptive act under the

provisions of chapter [93A]," Mass. Gen. Laws ch.142A, § 17.

Plaintiffs insist that this is another such situation,

and urge us to follow a regulation promulgated by the Massachusetts

Attorney General providing that "[i]t shall be an unfair and

deceptive act or practice to fail to perform or fulfill any

promises or obligations arising under a warranty." 940 Mass. Code

of Regs. § 3.08(2). But, as we explained in McDermott, "the

Attorney General is not empowered to issue regulations rendering

certain statutory violations 'per se' Chapter 93A violations."

775 F.3d at 120; see also Klairmont v. Gainsboro Rest., Inc., 987

N.E.2d 1247, 1255, 1257 (Mass. 2013) (finding a chapter 93A

violation, but holding that a knowing violation of building codes

- 37 -
was not a per se violation of chapter 93A because the Attorney

General's regulation at issue covered more than just unfair and

deceptive conduct in trade or commerce). We agree with the

district court that the Massachusetts Attorney General's

regulation does not require us to find that any and all breaches

of warranty are necessarily violations of chapter 93A.

Seizing on our statement in McDermott that there are two

"alternative paths to per se Chapter 93A liability: the text of

Chapter 93A itself, or the text of an independent statute,"

McDermott, 775 F.3d at 122, plaintiffs offer another theory: that

breach of warranty is a per se chapter 93A violation because under

the Magnuson-Moss Warranty Act (MMWA), 15 U.S.C. § 2310(d)(1), it

is unfair and deceptive for a "supplier, warrantor, or service

contractor" to fail to comply with an obligation to a "consumer"

under a written warranty. See also 15 U.S.C. § 2310(b) (stating

that it is an unfair practice to violate any prohibition listed in

this chapter, including § 2310(d)(1)). This argument, however,

comes far too late for us to pay it any mind: Plaintiffs did not

sue under the MMWA, nor did they argue to the district court that

the breaches of warranty they proved at trial satisfy the elements

of an MMWA claim; plaintiffs gave neither Hylas nor the district

court the opportunity to consider this theory, and the district

court accordingly made no related findings of fact or conclusions

of law. The raise-or-waive rule bars plaintiffs from advancing

- 38 -
this belated argument on appeal. See Tutor Perini Corp. v. Banc

of Am. Sec. LLC, 842 F.3d 71, 84–85 (1st Cir. 2016).8

With neither chapter 93A itself nor the Massachusetts

Attorney General's regulations requiring us to find per se

liability under chapter 93A, plaintiffs are left arguing that the

district court was required, under the facts of this case, to find

that Hylas's breaches of warranty were unfair or deceptive under

chapter 93A. They do so on two bases: that the district court's

findings of fact were clearly erroneous, and that its conclusions

of law were incorrect. We disagree.

The district court found that Hylas failed to deliver a

yacht "in completely sound condition with all systems and equipment

operating safely and properly," in violation of its warranties to

plaintiffs. But it also found that "Hylas'[s] failure to do so

was due in large part to its inability to conduct sufficient sea

8 In their reply brief and at oral argument, plaintiffs
attempted to explain why this is a case in which we should find
the raise-or-waive rule does not apply. See Lang v. Wal-Mart
Stores E., L.P., 813 F.3d 447, 455 (1st Cir. 2016) (rejecting an
argument that the raise-or-waive rule does not apply). In essence,
their argument—that they "could not reasonably anticipate that the
trial judge would conclude that dishonoring express and implied
warranties causing $663,774 of damage 'did not in fact produce
unfairness or deception'"—is that a party that does not know ahead
of time that the court will reject its argument should be forgiven
for failing to raise a different one. A litigant choosing not to
make an argument based on an errant assumption that a different
argument will succeed is not the type of "extraordinary
circumstance" that allows one to circumvent the raise-or-waive
rule. If it were, there would be no raise-or-waive rule.

- 39 -
trials, which was motivated by nothing more than a desire to please

its customer." In so finding, the district court was referring to

the fact that the contract anticipated that Hylas would conduct

all sea trials before Sharp finally accepted the yacht and paid

all balances due. As things played out, Hylas forewent completing

at least some sea trials it would have otherwise conducted had

Sharp not wanted to set sail as soon as possible. The court

explained that

Sharp's request to close on the sale of the
Yacht came suddenly and unexpectedly and Hylas
expected to be able to conduct further sea
trials after closing. However, the Yacht left
without adequate notice before Hylas had the
opportunity to conduct further sea trials.

The district court also found that "[e]ach time Sharp or his crew

encountered problems with the Yacht, Hylas attempted to resolve

the problem." Plaintiffs argue that these factual findings were

clearly erroneous because the court "ignored" (1) evidence that

Jachney did not believe plaintiffs prematurely departing from port

caused problems; (2) extensive evidence showing that plaintiffs

repeatedly sought repairs for numerous failures over many months;

(3) evidence showing Hylas did not reimburse plaintiffs for the

cost of replacing the boom, despite the contract between the

parties requiring Hylas to reimburse Sharp for costs incurred in

fixing the yacht; and (4) Hylas's failure to respond to plaintiffs'

demand letter, sent prior to commencing suit.

- 40 -
 The district court, however, did not ignore this

evidence. The court expressly found that plaintiffs "served on

Hylas a demand for relief under Chapter 93A, Section 9," and that

"Hylas made no substantive response and no offer of settlement."

It noted that Sharp incurred the cost of replacing the boom, and

it agreed with the jury that Hylas failed to live up to its express

warranty to reimburse plaintiffs for costs associated with fixing

the yacht. It listed the numerous occasions on which Destiny

needed to be repaired, and observed that Hylas's repairs were

"ineffectual." And although the record included an email from

Jachney stating that "[t]he timing . . . as far as shaking the

yacht down I do not think was an issue," other evidence in the

record supports the district court's determination that Hylas

intended to do more extensive testing before plaintiffs took

possession of the yacht: The district court considered an email

from Jachney two days before closing disclosing his intention to

take the yacht out for a test sail and Jachney testified that

Sharp's request to close on the yacht in early December 2010 came

suddenly and did not provide adequate time to finish testing. The

email plaintiffs cite also sheds no contrary light on the district

court's conclusion concerning Destiny's abrupt departure from

Newport in June 2011, when Jachney again emailed Sharp stating

that he intended to participate in sea trials before Destiny

departed Newport.

- 41 -
 In light of these factual findings, we cannot say that

the district court erred as a matter of law in finding that

"Hylas'[s] actions constituted a breach of contract and breach of

express and implied warranties," but that the breaches of

warranties in this case "did not in fact produce unfairness or

deception." While it is true that "[g]enerally, a breach of

warranty constitutes a violation of [chapter 93A]," Maillet v.

ATF-Davidson Co., 552 N.E.2d 95, 100 (Mass. 1990), neither the

Massachusetts legislature nor the Supreme Judicial Court has gone

so far as to find that all breaches of warranties are inherently

deceptive or unfair. See Evans v. Lorillard Tobacco Co., 990

N.E.2d 997, 1038 n.25 (Mass. 2013) ("[W]e decline, as we did in

Maillet, to decide whether liability should be 'imposed

automatically under [Mass. Gen. Laws ch. 93A] whenever a defendant

has violated the warranty of merchantability,' even where there is

no finding of negligence."). Where, as here, the district court

finds (without clearly erring) that the defendant made genuine but

ultimately ineffectual efforts to live up to its contractual

obligations, the mere breach of express and implied warranties is

not sufficient to mandate a finding of liability under chapter 93A.

III. Conclusion

For the foregoing reasons, we affirm.

- 42 -