Dana Herra Nov. 26, 2015, 9:51am

Who should be responsible for the sinking of a haunted barge at Navy Pier last year remains an unsolved riddle, after a federal judge dowsed some counts of a lawsuit surrounding the incident, but gave the plaintiff time to address the issues and file an amended complaint.

The barge, a haunted house-style Halloween attraction, sank on Halloween 2014 while it was docked at Navy Pier in a storm. Foundation Theatre Group, Inc., the entertainment company that created the attraction, joined Black Diamond Marine Equipment, Inc., the company that leased it the barge, and against Kindra Lake Towing, L.P., the owner of the vessel, in each filing counter claims against the other over the incident. Kindra brought the first action in April, asking a judge to absolve it of liability in the incident.

Kindra had leased the barge to Black Diamond, which in turn leased it to Foundation. Both leases were so-called “demise charters,” under which those chartering the vessel take on full responsibility for the vessel – according to court documents, the charter stops just short of complete transfer of ownership.

Foundation also entered into a separate contract with Black Diamond and Kindra to move the barge to and from Navy Pier and to provide necessary moorings, court documents state. When it arrived, the barge did not have a proper fender to protect the pier wall and was not properly secured to the pier, causing it to slam repeatedly into the pier wall for about a week and causing damage to both the barge and the pier. Kindra later oversaw installation of a new fender and again secured the barge to the pier, but did not inspect it for damage, according to court documents.

In its suit, Foundation claimed the defendants leased a vessel that was not seaworthy and failed to take adequate precautions to prevent damage to the barge. U.S. District Judge Thomas M. Durkin granted Black Diamond’s motion to dismiss three counts and one paragraph of a fourth count in Foundation’s complaint, all of which related to the vessel’s seaworthiness.

In his opinion, Durkin cited a section of the lease agreement that specifically states Black Diamond made no warranty as to the vessel’s condition and that Foundation agreed to give up any right “to make any claim of any kind against [Black Diamond] under any theory whatsoever (including without limitation theories of negligence, unseaworthiness, or breach of warranty).”

“The Court finds that Foundation waived the claims against Black Diamond that Black Diamond seeks to dismiss,” Durkin wrote. “Specific waivers precisely mirror Foundation’s allegations that Black Diamond breached the ‘implied warranty of seaworthiness,’ made misrepresentations with respect to the barge’s ‘seaworthiness,’ and was negligent so as to render the barge ‘unseaworthy.’”

Because Kindra had leased the boat to Black Diamond and not directly to Foundation, the waivers contained in the agreement between Black Diamond and Foundation do not apply, the court wrote. But, Kindra argued, the same lack of a contract with Kindra should mean Foundation’s implied warranty, misrepresentation, and negligence claims do not apply either. Durkin agreed to dismiss the count alleging a breach of implied warranty of seaworthiness, but held that the misrepresentation and negligence claims are tort actions “for which a lack of direct contractual relationship between the parties is not a defense.”

In his opinion, Durkin wrote that Foundation could attempt to “cure the deficiencies” in its claims and file an amended complaint by Dec. 11.

Foundation was represented in the action by the firm of Pretzel & Stouffer, of Chicago.

Black Diamond and Kindra were represented by the firm of Belgrade & O’Donnell, of Chicago.

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Organizations in this Story

Belgrade & O'Donnell
20 North Upper Wacker Drive
Chicago, IL 60606

Pretzel and Stouffer, Chartered
One South Wacker Drive Suite 2500
Chicago, IL 60606

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