Present: All the Justices
BAYLINER MARINE CORPORATION
v. Record No. 980392 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 8, 1999
JOHN R. CROW
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
In this appeal, the dispositive issue is whether there was
sufficient evidence to support the trial court's ruling that the
manufacturer of a sport fishing boat breached an express
warranty and implied warranties of merchantability and fitness
for a particular purpose.
In the summer of 1989, John R. Crow was invited by John
Atherton, then a sales representative for Tidewater Yacht
Agency, Inc. (Tidewater), to ride on a new model sport fishing
boat known as a 3486 Trophy Convertible, manufactured by
Bayliner Marine Corporation (Bayliner). At that time, Tidewater
was the exclusive authorized dealer in southeastern Virginia for
this model Bayliner boat. During an excursion lasting about 20
minutes, Crow piloted the boat for a short period of time but
was not able to determine its speed because there was no
equipment on board for such testing.
When Crow asked Atherton about the maximum speed of the
boat, Atherton explained that he had no personal experience with
the boat or information from other customers concerning the
boat's performance. Therefore, Atherton consulted two documents
described as "prop matrixes," which were included by Bayliner in
its dealer's manual.
Atherton gave Crow copies of the "prop matrixes," which
listed the boat models offered by Bayliner and stated the
recommended propeller sizes, gear ratios, and engine sizes for
each model. The "prop matrixes" also listed the maximum speed
for each model. The 3486 Trophy Convertible was listed as
having a maximum speed of 30 miles per hour when equipped with a
size "20x20" or "2019" propeller. The boat Crow purchased did
not have either size propeller but, instead, had a size "20x17"
propeller.
At the bottom of one of the "prop matrixes" was the
following disclaimer: "This data is intended for comparative
purposes only, and is available without reference to weather
conditions or other variables. All testing was done at or near
sea level, with full fuel and water tanks, and approximately 600
lb. passenger and gear weight."
Atherton also showed Crow a Bayliner brochure describing
the 1989 boat models, including the 3486 Trophy Convertible.
The brochure included a picture of that model fully rigged for
offshore fishing, accompanied by the statement that this model
2
"delivers the kind of performance you need to get to the prime
offshore fishing grounds."
In August 1989, Crow entered into a written contract for
the purchase of the 3486 Trophy Convertible in which he had
ridden. The purchase price was $120,000, exclusive of taxes.
The purchase price included various equipment to be installed by
Tidewater including a generator, a cockpit cover, a "Bimini
top," a winch, a spotlight, radar, a navigation system, an
icemaker, fishing outriggers, an automatic pilot system, extra
fuel gauges, a second radio, and air conditioning and heating
units. The total weight of the added equipment was about 2,000
pounds. Crow did not test drive the boat after the additional
equipment was installed or at any other time prior to taking
delivery.
When Crow took delivery of the boat in September 1989, he
piloted it onto the Elizabeth River. He noticed that the boat's
speed measuring equipment, which was installed in accordance
with the contract terms, indicated that the boat's maximum speed
was 13 miles per hour. Crow immediately returned to Tidewater
and reported the problem.
During the next 12 to 14 months, while Crow retained
ownership and possession of the boat, Tidewater made numerous
repairs and adjustments to the boat in an attempt to increase
its speed capability. Despite these efforts, the boat
3
consistently achieved a maximum speed of only 17 miles per hour,
except for one period following an engine modification when it
temporarily reached a speed of about 24 miles per hour. In July
1990, a representative from Bayliner wrote Crow a letter stating
that the performance representations made at the time of
purchase were incorrect, and that 23 to 25 miles per hour was
the maximum speed the boat could achieve.
In 1992, Crow filed a motion for judgment against
Tidewater, Bayliner, and Brunswick Corporation, the manufacturer
of the boat's diesel engines. 1 Crow alleged, among other things,
that Bayliner breached express warranties, and implied
warranties of merchantability and fitness for a particular
purpose.
At a bench trial in 1994, Crow, Atherton, and Gordon W.
Shelton, III, Tidewater's owner, testified that speed is a
critical quality in boats used for offshore sport fishing in the
Tidewater area of Virginia because of the distance between the
coast and the offshore fishing grounds. According to these
witnesses, a typical offshore fishing site in that area is 90
miles from the coast. Therefore, the speed at which the boat
1
Crow nonsuited his claim against Tidewater prior to trial.
The negligence claim against Brunswick was dismissed in the
trial court's final judgment order.
4
can travel to and from fishing sites has a major impact on the
amount of time left in a day for fishing.
Crow testified that because of the boat's slow speed, he
could not use the boat for offshore fishing, that he had no
other use for it, and that he would not have purchased the boat
if he had known that its maximum speed was 23 to 25 miles per
hour. Crow testified that he had not used the boat for fishing
since 1991 or 1992. He admitted, however, that between
September 1989, and September 1994, the boat's engines had
registered about 850 hours of use. Bob Schey, Bayliner's
manager of yacht testing, testified that a pleasure boat in a
climate such as Virginia's typically would register 150 engine
hours per year.
The trial court entered judgment in favor of Crow against
Bayliner on the counts of breach of express warranty and breach
of implied warranties of merchantability and fitness for a
particular purpose. The court awarded Crow damages of $135,000,
plus prejudgment interest from June 1993. The court explained
that the $135,000 award represented the purchase price of the
boat, and about $15,000 in "damages" for a portion of the
expenses Crow claimed in storing, maintaining, insuring, and
financing the boat.
On appeal, we review the evidence in the light most
favorable to Crow, the prevailing party at trial. Tuomala v.
5
Regent University, 252 Va. 368, 375, 477 S.E.2d 501, 505 (1996);
W.S. Carnes, Inc. v. Chesterfield County, 252 Va. 377, 385, 478
S.E.2d 295, 301 (1996). We will uphold the trial court's
judgment unless it is plainly wrong or without evidence to
support it. 2 Code § 8.01-680; Horton v. Horton, 254 Va. 111,
115, 487 S.E.2d 200, 203 (1997).
Crow argues that the "prop matrixes" he received created an
express warranty by Bayliner that the boat he purchased was
capable of a maximum speed of 30 miles per hour. We disagree.
Code § 8.2-313 provides, in relevant part:
Express warranties by the seller are created as
follows:
(a) Any affirmation of fact or promise made by the
seller to the buyer which relates to the goods and
becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the
affirmation or promise.
(b) Any description of the goods which is made a
part of the basis of the bargain creates an
express warranty that the goods shall conform to
the description.
The issue whether a particular affirmation of fact made by
the seller constitutes an express warranty is generally a
question of fact. See id., Official Comment 3; Daughtrey v.
Ashe, 243 Va. 73, 78, 413 S.E.2d 336, 339 (1992). In Daughtrey,
we examined whether a jeweler's statement on an appraisal form
constituted an express warranty. We held that the jeweler's
2
Because our rulings on the warranty issues are dispositive
of this appeal, we do not address Bayliner's assignments of
6
description of the particular diamonds being purchased as
"v.v.s. quality" constituted an express warranty that the
diamonds were, in fact, of that grade. Id. at 77, 413 S.E.2d at
338.
Unlike the representation in Daughtrey, however, the
statements in the "prop matrixes" provided by Bayliner did not
relate to the particular boat purchased by Crow, or to one
having substantially similar characteristics. By their plain
terms, the figures stated in the "prop matrixes" referred to a
boat with different sized propellers that carried equipment
weighing substantially less than the equipment on Crow's boat.
Therefore, we conclude that the statements contained in the
"prop matrixes" did not constitute an express warranty by
Bayliner about the performance capabilities of the particular
boat purchased by Crow.
Crow also contends that Bayliner made an express warranty
regarding the boat's maximum speed in the statement in
Bayliner's sales brochure that this model boat "delivers the
kind of performance you need to get to the prime offshore
fishing grounds." While the general rule is that a description
of the goods that forms a basis of the bargain constitutes an
express warranty, Code § 8.2-313(2) directs that "a statement
error concerning the damages awarded by the trial court.
7
purporting to be merely the seller's opinion or commendation of
the goods does not create a warranty."
The statement made by Bayliner in its sales brochure is
merely a commendation of the boat's performance and does not
describe a specific characteristic or feature of the boat. The
statement simply expressed the manufacturer's opinion concerning
the quality of the boat's performance and did not create an
express warranty that the boat was capable of attaining a speed
of 30 miles per hour. Therefore, we conclude that the evidence
does not support the trial court's finding that Bayliner
breached an express warranty made to Crow.
We next consider whether the evidence supports the trial
court's conclusion that Bayliner breached an implied warranty of
merchantability. Crow asserts that because his boat was not
capable of achieving a maximum speed of 30 miles per hour, it
was not fit for its ordinary purpose as an offshore sport
fishing boat. Bayliner contends in response that, although the
boat did not meet the needs of this particular sport fisherman,
there was no evidence from which the trial court could conclude
that the boat generally was not merchantable as an offshore
fishing boat. We agree with Bayliner's argument.
Code § 8.2-314 provides that, in all contracts for the sale
of goods by a merchant, a warranty is implied that the goods
will be merchantable. To be merchantable, the goods must be
8
such as would "pass without objection in the trade" and as "are
fit for the ordinary purposes for which such goods are used."
Code § 8.2-314(2)(a),(c). The first phrase concerns whether a
"significant segment of the buying public" would object to
buying the goods, while the second phrase concerns whether the
goods are "reasonably capable of performing their ordinary
functions." Federal Signal Corp. v. Safety Factors, Inc., 886
P.2d 172, 180 (Wash. 1994). In order to prove that a product is
not merchantable, the complaining party must first establish the
standard of merchantability in the trade. Laird v. Scribner
Coop, Inc., 466 N.W.2d 798, 804 (Neb. 1991). Bayliner correctly
notes that the record contains no evidence of the standard of
merchantability in the offshore fishing boat trade. Nor does
the record contain any evidence supporting a conclusion that a
significant portion of the boat-buying public would object to
purchasing an offshore fishing boat with the speed capability of
the 3486 Trophy Convertible.
Crow, nevertheless, relies on his own testimony that the
boat's speed was inadequate for his intended use, and Atherton's
opinion testimony that the boat took "a long time" to reach
certain fishing grounds in the Gulf Stream off the coast of
Virginia. However, this evidence did not address the standard
of merchantability in the trade or whether Crow's boat failed to
meet that standard. Thus, we hold that Crow failed to prove
9
that the boat would not "pass without objection in the trade" as
required by Code § 8.2-314(2)(a).
We next consider whether the record supports a conclusion
that Crow's boat was not fit for its ordinary purpose as an
offshore sport fishing boat. Generally, the issue whether goods
are fit for the ordinary purposes for which they are used is a
factual question. See Federal Ins. Co. v. Village of Westmont,
649 N.E.2d 986, 990 (App. Ct. Ill. 1995); Tallmadge v. Aurora
Chrysler Plymouth, Inc., 605 P.2d 1275, 1278 (Wash. Ct. App.
1979). Here, the evidence is uncontroverted that Crow used the
boat for offshore fishing, at least during the first few years
after purchasing it, and that the boat's engines were used for
850 hours. While Crow stated that many of those hours were
incurred during various repair or modification attempts and that
the boat was of little value to him, this testimony does not
support a conclusion that a boat with this speed capability is
generally unacceptable as an offshore fishing boat. Thus,
considered in the light most favorable to Crow, the evidence
fails to establish that the boat was not fit for the ordinary
purpose for which it was intended.
We next address Crow's claim that Bayliner breached an
implied warranty of fitness for a particular purpose. Code
§ 8.2-315 provides that when a seller "has reason to know any
particular purpose for which the goods are required and that the
10
buyer is relying on the seller's skill or judgment to select or
furnish suitable goods, there is ... an implied warranty that
the goods shall be fit for such purpose." See also Medcom, Inc.
v. C. Arthur Weaver Co., Inc., 232 Va. 80, 84-85, 348 S.E.2d
243, 246 (1986). This statute embodies a long-standing common
law rule in Virginia. Layne-Atlantic Co. v. Koppers Co., 214
Va. 467, 471, 201 S.E.2d 609, 613 (1974). The question whether
there was an implied warranty of fitness for a particular
purpose in a sale of goods is ordinarily a question of fact
based on the circumstances surrounding the transaction. Stones
v. Sears, Roebuck & Co., 558 N.W.2d 540, 547 (Neb. 1997).
Crow contends that the "particular purpose" for which the
boat was intended was use as an offshore fishing boat capable of
traveling at a maximum speed of 30 miles per hour. However, to
establish an implied warranty of fitness for a particular
purpose, the buyer must prove as a threshold matter that he made
known to the seller the particular purpose for which the goods
were required. See Medcom, 232 Va. at 84, 348 S.E.2d at 246.
The record before us does not support a conclusion that Crow
informed Atherton of this precise requirement. Although Crow
informed Atherton that he intended to use the boat for offshore
fishing and discussed the boat's speed in this context, these
facts did not establish that Atherton knew on the date of sale
that a boat incapable of travelling at 30 miles per hour was
11
unacceptable to Crow. Thus, we conclude that the evidence fails
to support the trial court's ruling that Bayliner breached an
implied warranty of fitness for a particular purpose.
For these reasons, we will reverse the trial court's
judgment and enter final judgment in favor of Bayliner.
Reversed and final judgment.
12