Defective – Unsafe Marine Product Breach of Implied Warranty

A breach of warranty claim examines the obligation pursuant to a sales contract. Having graduated from as an marine engineer from a merchant marine academy, acquired three U.S. Coast Guard engineer licenses and previously represented yacht/boat manufacturers and repair facilities for 19 years, board certified maritime attorney Keith Brais with the law firm of Brais, Brais & Rusak is in a unique position to assist in breach of implied warranty claims involving defective or unsafe marine products. The lawyers at the law firm of Brais, Brais & Rusak are here to help with offices in Miami, Florida, Boston, Massachusetts and Houston, Texas.

To pursue a breach of implied warranty claim proof of negligence is not required. The eligible plaintiff is the buyer pursuant to an expressed or implied contract. Third parties who are deemed beneficiaries of a buyer’s contract can also be an eligible plaintiff. Beneficiaries can include the buyer’s family, household members, guests, employees, servants, and agents when it is reasonable to expect those persons to use, consume, or be affected by the product.

Breach of warranty is now governed by the Florida Uniform Commercial Code, which addresses breach of both expressed and implied warranties, the latter being broken down into Merchantability and Fitness for a Particular Purpose.

Under both types of implied warranty claims, there is no notice requirement and the effectiveness of disclaimers is restricted. Implied warranty claims remain an important remedy when a tort action is precluded by the “economic loss rule”, i.e., where tort recovery is not available because a product damages only itself, resulting in economic loss, but not personal injury or damage to other property. In cases of physical harm and damage to property other than the product, the doctrine of strict liability has all but replaced the breach of implied warranty claim.

Defenses common to both implied warranty claims;

  • “As Is” Sales
  • Exclusion or Modification
  • Discoverable Defects
  • Blood Products

Unless expressly disclaimed, Florida law provides that a contract for the sale of goods implies that the goods are merchantable. “Merchantable” goods are those that are fit for the ordinary purposes of their use; adequately contained, packaged, and labeled; and conformed to the promises or affirmations of their containers. Should the product fail under normal use, the seller or manufacturer is obligated to pay the difference of the value of the goods warranted and the value of the goods provided as well as any consequential damages arising from the failure. Under a merchantability claim the seller must be a merchant with respect to the goods of the kind at issue.

An implied warranty of fitness for a particular purpose exists if, at the time of contracting, the seller knows of any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment in selecting or furnishing suitable goods. Should the product fail while being used for the particular purpose for which it was purchased, the seller is obligated to pay the difference of the value of the goods warranted and the value of the goods provided as well as any consequential damages arising from the failure.

A unique defense to this claim is a buyer’s non-reliance upon the seller’s skill or judgment to select or furnish a suitable good/product.

Negligence and strict liability are remedies that provide only tort damages, i.e., losses that are the result of the wrongdoer’s negligence or the defective part, respectively. These damages include: personal injury, wrongful death, diminished value of property, cost of repair or restoration, value of fixtures, personal property and loss of use in certain circumstances. Damages to the defective or dangerous product itself must be recovered under a breach of contract theory, the reasoning being that contracts provide for only “the benefit of the bargain”, i.e., the cost of the product or part itself. Put differently, a contract based claim only allows for the recovery of the 89 dollar part and not the 1.2 million dollar yacht into which the part was installed. This prohibition against the recovery of tort damages is generally known as the “economic loss rule.” Breach of warranty mixes the theories and allows for the recovery of both contract and tort damages depending upon the circumstances. If the breach of the sales contract causes physical harm or damage to property other than the product itself, tort damages are available. If the breach of warranty results in damage to the product itself, contract damages are available.

The attorneys at the law firm of Brais, Brais & Rusak have the experience to protect your rights, the compassion to serve your needs, and the skill to obtain the compensation you deserve. To reach our lawyers you may click email the firm, call 1-800-499-0551 from within the U.S., Skype BraisLaw worldwide or click Contact Us to select and complete a form for a free evaluation of your case.


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