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The Implied Warranty of Workmanlike Performance

While many rules of maritime law originated in ancient times and have been passed along through the ages, there are other rules that have suddenly arisen as the result of legislation or judicial decisions. The implied warranty of workmanlike performance (“WWLP”) is just such a rule, since it owes its existence to an opinion written by the U.S. Supreme Court in 1956. Although a few restrictions have been placed on the scope of the WWLP in the years since its creation, it remains alive and well in both property damage and personal injury cases.

The WWLP is implied into most maritime service contracts. It does not have to be in writing to have full force and effect. In each such agreement, the marine contractor impliedly agrees that he will perform the contracted services in a diligent and workmanlike manner. In order for the injured party to recover damages, it is not necessary to show that the contractor breached the contract or even that the contractor was negligent. It is only necessary to show that the work was not performed in a diligent, workmanlike manner, and that damages were suffered as a result.

The WWLP is found most often in vessel repair contracts. However, the courts have applied the WWLP to a wide variety of maritime service contracts, including those for offshore services, contract salvage services, wharfage agreements, and launch services. Contractors have been held liable for numerous deficiencies including failure to select the proper parts, failure to prevent damage, sloppy and inadequate workmanship, failure to provide adequate security, etc. The WWLP is very broad, and although it generally applies to services, it is comparable to a manufacturer’s warranty of the soundness of its product.

There are a few limitations to the WWLP. The WWLP will not normally be implied into contracts for towing services. To do so would directly conflict with the admiralty law principle that towers are only liable if their conduct is proven to have been negligent. In addition, legislation in the years following the Supreme Court’s recognition of the WWLP has almost completely nullified its application to stevedoring contracts (for which it was originally adopted). While some contractors have attempted to limit the application of the WWLP by “writing it out” of various agreements, such efforts are not looked upon with favor by the courts and are strictly construed against the draftsman.

Not just anyone may assert a breach of the WWLP. In order to have standing, the injured party must either be a party to the maritime service contract, or be an intended third-party beneficiary of that contract. An example of a third-party beneficiary would be the purchaser of a vessel for whom repairs were made by the seller after a sea trial. Even though the purchaser was not in direct contract with the repairman, he may bring an action against the repairman if damages result from a breach of the WWLP. The damages sought may include any economic losses that resulted from breach of the WWLP as well.

In most contexts, the marine tower and salvor will only encounter the WWLP in his agreements with other contractors for vessel repairs, and other services. However, knowledge of its existence, and of the general application of the WWLP to all but marine towing and stevedoring contracts, will better prepare any marine contractor to both assert his own right to enforce the WWLP when contracting with others, and to appreciate the right of his own customers to enforce the WWLP as well.

© 2001 Stephen F. White

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