Full opinion text
MEMORANDUM LEGG, Chief Judge. Pending are the following motions (i) American Bureau of Shipping’s (“ABS”) Motion For Summary Judgment (Docket No. 76); (ii) Limitation Plaintiffs’ Motion For Summary Judgment On First Amended Claim For Damages Of Josefina Gonzales (Docket No. 74); and (iii) Claimant Tate & Lyle North American Sugars, Inc.’s (“Tate & Lyle” or “T & L”) FRCP 56 Motion For Summary Judgment As To Claimant Josefina Gonzales (Docket No. 73). After extensive briefing, the Court held two hearings on the motions. For the reasons set forth herein, the Court will, by separate Order: (i) GRANT ABS’s motion, (ii) GRANT Limitation Plaintiffs’ motion, and (iii) GRANT T & L’s motion. I. Brief Description of the Case This case arises from the collapse of a crane aboard the M/V Leon I, a vessel owned by Eternity Shipping, Ltd., and managed by Eurocarriers, S.A. (collectively the “Limitation Plaintiffs”). On July 29, 2000, the vessel was berthed at T & L’s Domino Sugar wharf in Baltimore. T & L was using shore cranes to unload bulk raw sugar from the vessel. At the same time, a crew member of the M/V Leon I was operating one of the ship’s cranes to hoist a work basket containing two crew members, Juan Gonzales, Jr, and Joselito Burgos, who were scraping caked sugar off the hatch coaming of one of the vessel’s holds. A wire rope on the ship’s crane broke, causing the jib (also known as the boom) to fall. When the jib fell, the work bucket hit the hatch cover and other parts of the ship, and Seamen Gonzales and Burgos sustained fatal injuries. In addition, the ship’s crane hit and damaged one of T & L’s shore cranes. On January 29, 2001, Limitation Plaintiffs filed the instant “Limitation Action” seeking limitation of or exoneration from liability for damages resulting from the accident. On that same date, the Court ordered: (i) that all persons claiming damages as a result of the crane’s collapse must file their respective claims with the Clerk, and (ii) that all other lawsuits relating to the accident are stayed and restrained pending a determination of the instant limitation action. The following claims were filed: (i) T & L’s and Josefina Gonzales’s (“Ms.Gonzales”) claims against American Bureau of Shipping (“ABS”), the classification society that inspected the MTV Leon I’s cranes seven months prior to the accident and certified that they met certain safety standards. Ms. Gonzales’s son, Juan Gonzales, Jr., (“Seaman Gonzales”) was one of the seamen who died as a result of the accident. T & L and Ms. Gonzales contend that ABS conducted a substandard inspection and failed to identify alleged defects that ultimately contributed to the accident. (ii) Ms. Gonzales’s claim against Limitation Plaintiffs. Ms. Gonzales, suing under the Jones Act and general maritime law, seeks damages from Limitation Plaintiffs in connection with her son’s death. (iii) Ms. Gonzales’s claim against T & L. Ms. Gonzales contends that T & L was negligent by operating its shore cranes at the same time that the ship’s crane was in operation. Ms. Gonzales alleges that this negligence contributed to the accident and the subsequent death of Seaman Gonzales. Discovery was involved and lengthy, lasting more than three years. The parties had difficulty locating maritime witnesses, who were often at sea for months at a time. Depositions were conducted internationally. In early October 2004, the parties filed the instant motions for summary judgment. Less than a week later, they requested a settlement conference with a United States Magistrate Judge. The next day, T & L filed a motion requesting sanctions for alleged discovery violations and spoilation of evidence by Limitation Plaintiffs and ABS. The Court referred the case to Magistrate Judge James K. Bredar so that he could hold a settlement conference and decide the pending motion for sanctions. Counsel later asked Magistrate Judge Bredar to postpone the settlement conference until after the Court has ruled on the summary judgment motions. In February 2005, Judge Bredar denied the motion for sanctions. At T & L’s request, the Court allowed the parties to conduct limited additional discovery and file supplemental briefs. In October 2005, the Court held two all-day hearings regarding the motions. As explained more fully below, the Court rules as follows: (i) The Court will grant ABS’s motion for summary judgment against T & L and Ms. Gonzales. The limited circumstances under which courts have opened the door to classification society liability do not exist here. Even if they did, there is no admissible evidence that ABS’s inspection of the cranes was faulty. (ii) The Court will grant Limitation Plaintiffs’ motion for summary judgment against Ms. Gonzales. The forum selection clause contained in Seaman Gonzales’s employment contract calls for adjudication of disputes in the Philippines. Accordingly, Ms. Gonzales is barred from pursuing her claims against Limitation Plaintiffs in the United States. (iii) The Court will grant T & L’s motion for summary judgment against Ms. Gonzales. At the second summary judgment hearing, Ms. Gonzales’s counsel conceded that T & L could not have contributed to the death of Ms. Gonzales’s son. The Court will now turn its attention to the individual motions. 11. Standard of Review The Court may grant summary judgment when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (recognizing that trial judges have “an affirmative obligation” to prevent factually unsupported claims and defenses from proceeding to trial). Nevertheless, in determining whether there is a genuine issue of material fact, the Court views the facts, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.1987). III. ABS’s Motion ABS is a classification society that was established by the New York Legislature in 1862. (Docket No. 76, Ex. F, ¶ 2.) As a classification society, ABS sets safety standards for the marine industry. It establishes criteria, often in the form of published “Rules” or “Guides,” for the design, construction, and maintenance of ships. It determines whether a ship is in compliance with the “Rules” or “Guides” by reviewing the construction plans and specifications and by periodically surveying the vessel during construction and while the vessel is in service. (Id. ¶¶ 3-5.) In addition to these traditional classification activities, ABS certifies cargo gear. (Id. ¶ 5.) ABS has developed standards for ship cranes, which are published in its Guide for Certification of Cranes. (Docket No. 76, Ex. G(5).) ABS surveys cranes to determine whether they are in compliance with those standards. Seven months prior to the accident, ABS surveyed the M/V Leon I’s cranes and certified that they complied with ABS’s standards. After the July 29, 2000 accident, Ms. Gonzales and T & L filed claims against ABS, contending that ABS’s surveyor failed to notice, or advise the shipowner of, various defects in the cranes that contributed to the accident. ABS moved for summary judgment. For the reasons stated below, the Court finds that the limited circumstances under which courts have opened the door to classification society liability do not exist here and, even if they did, there is no admissible evidence that ABS’s surveys of the cranes were faulty. Accordingly, ABS is entitled to a grant of summary judgment. A. Factual Background 1. The M/V Leon I and the Crane Retrofit Built in 1982, the M/V Leon I was originally a gearless bulk carrier, meaning that it did not have cranes. In the spring of 1999, Eurocarriers began managing the vessel for its owner. (Docket No. 1, Ex. B; Docket No. 76, Ex. H, at 14.) To increase the vessel’s market value and to facilitate the carrying of cargo, Eurocarri-ers decided to retrofit it with four cranes from the M/V Yannis K, another vessel managed by Eurocarriers. (Docket No. 76, Ex. H, at 13, ,15, 93-94.) On May 10, 1999, Rousalis Cargo Gear Services proof load tested all four cranes on the M/V Yannis K and certified that they withstood the load without damage. (Id. at 23-24; Docket No. 76, Ex. H(2).) In the summer of 1999, in Dubai, Stoyan Terziev, a superintendent engineer at Eu-rocarriers, supervised the removal of the four cranes. During the work, the cranes’ wire ropes were uncoiled from the drums and laid out on the deck. To determine whether Eurocarriers should order replacement wire ropes, Terziev personally inspected each of them as it lay on the deck. He found each rope to be in good condition and he did not see any preexisting damage or flattening of the wires. (Docket No. 76, Ex. I, at 38-43.) After Terziev’s inspection, the wire ropes were greased, coiled on two-meter spools, and labeled. (Id. at 38-39, 42.) They were then transported to the Huarong Da Dong shipyard in China for retrofit on the M/V Leon I. Having never previously had cranes on deck, the M/V Leon I required some work before the cranes could be installed. Accordingly, Eurocarriers hired a naval architectural firm, Marutee, to design the pedestals on which the cranes would sit and the structures needed to reinforce the ship’s deck so that it could withstand the extra weight. (Docket No. 112, Ex. B, at 29-30, 38, 41.) Eurocarriers hired ABS to determine whether Marutec’s design plans complied with AB S’s rules and standards. (Id. at 30, 37, 41-44; see also Docket No. 143, Ex. W.) ABS recommended several changes regarding items such as brackets, pillars, and electric current. Eurocarriers and Marutee made the changes, whereupon ABS approved the final design plans. (Docket No. 112, Ex. B, at 30.) ABS, having previously reviewed drawings of the cranes and having certified them while they were aboard the M/V Yannis K, was familiar with the cranes. (Id. at 44; Docket No. 112, Ex. E, at 21-22; Docket No. 143, Ex. W.) The cranes’ certification was up-to-date. (Docket No. 112, Ex. E, at 21-22.) Accordingly, ABS designated the cranes as “existing cargo gear,” meaning that, in ABS’s view, it was unnecessary to re-review the cranes’ drawings. Likewise, because the cranes had previously been certified, ABS did not deem it necessary to conduct an “initial survey,” which is typically reserved for new cargo gear. (Id. at 73-76, 79-81.) 2. ABS Surveyor Roy Graham Although ABS did not perform an initial survey, it assigned one of its surveyors, Roy Graham, to conduct three other surveys in connection with the crane retrofit. These surveys, which took place in November and December 1999, included (i) an Installation Survey, (ii) an Annual Survey, and (iii) a Retesting Survey. a. Installation Survey During the Installation Survey, Graham verified that the construction of the pedestals and the deck structural supports conformed to the design plans drafted by Marutee. (Docket No. 112, Ex. E, at 17-19, 21-22; Docket No. 76, Ex. G(ll).) While the pedestals and other structures were under construction, the shipowner instructed the shipyard to disassemble the moving parts of the cranes for inspection by Graham and the shipowner. During Graham’s daily visits to the shipyard, he stopped by the cranes to inspect their parts. In determining whether there were any problems with the cranes during this pre-installation period, Graham relied upon ABS “process instructions” and “guidance notes” regarding the inspection of cranes. During this pre-installation review, Graham found bad bearings in some of the motors and some of the sheaves. He brought them to the shipowner’s attention, and they were repaired or replaced. (Id. at 22-23, 25-26.) Although termed an “Installation Survey,” the survey did not include observing or monitoring the physical installation of the cranes on the ship. (Id. at 27-28.) Rather, it appears to have been limited to verifying that the construction of the pedestals and deck structures conformed to the plans and inspecting the cranes while they were laid out on the dock. b. Retesting and Annual Surveys After the cranes were installed on the M/V Leon I, Graham performed an Annual Survey and a Retesting Survey. First, the Court will briefly describe each survey and what tests and inspections are required for each. Then, the Court will discuss the tests and inspections that Graham performed on the cranes. (1) Requirements ABS’s Guide for Certification of Cranes (the “Guide”) requires the Annual and Retesting Surveys to be performed at specified intervals and lists the tests and other tasks the surveyor must perform in connection with each survey. Annual Survey. Each crane must “undergo an Annual Survey at intervals of 12 months.” (Docket No. 76, Ex. G(5), § 7.7.) The Guide provides that an Annual Survey must include the following: a Visual inspection of the crane structure for deformation, excessive wear, corrosion, damage or fractures. The boom is to be lowered for this examination. b Visual examination of crane hooks for deformation, excessive wear, or fractures. c For cranes intended for transfer of personnel, non-destructive testing of crane hooks, d Visual external examination and operational test of crane machinery including prime mover, clutches, brakes; hoisting, slewing and luffing machinery, e Visual inspection of wire rope including end attachments. / Functional tests including main and auxiliary load hoisting and lowering, boom raising and lowering, slewing (swinging), safety protective (failsafe) and limiting devices and load and boom angle or radius indicators. (Id.) Retesting Survey. Every five years, a crane must also undergo a Retesting Survey, which is essentially an Annual Survey plus a proof load test. (Id., §§ 5.3, 7.9; Docket No. 112, Ex. E, at 99-100.) Wire Rope Inspection. At each Annual and Retesting Survey, the surveyor is required to visually inspect all “running wire ropes.” (Docket No. 76, Ex. G(5), § 7.11.) The Guide states that, [w]ire rope is not to be used if in any length of ten diameters, the total number of visible broken wires exceeds 5 percent of the total number of wires, if there is more than one broken wire immediately adjacent to an end fitting, if the broken wires are concentrated in one area or one strand, or if the rope shows signs of excessive wear, corrosion, flattening, kinks, separation of the strands or wires, core failures or other defect which renders it unfit for use. (Id.) (2) Tests and Inspections Performed by Graham Graham testified during his deposition that he performed the tests and inspections required by the Guide, including the following: Wire Rope Inspections. Graham visually inspected the cranes’ wire ropes on three different occasions, and he did not find any problems. (Docket No. 112, Ex. E, at 23-24; Docket No. 76, Ex. G, at 113— 16.) First, after they arrived at the shipyard, the ropes were unspooled and laid out on the dock. Prior to their re-installation on the cranes, Graham walked the length of each rope and inspected it from one end to the other. He testified that he was “standing right on them,” which was unusual because most Annual and Retesting Surveys are conducted while the ropes are in place on the cranes and, therefore, not as accessible. As a result, Graham felt that he was able to get a closer look than normal at these wire ropes. Then, Graham looked at some of the wire ropes as they were being installed on the cranes. (Docket No. 76, Ex. G, at 115.) Finally, after all the wire ropes had been installed, Graham inspected the working gear of each crane (including the drums, pulleys, and sheaves) and was able to look at the ropes during that inspection. Operational Test. Graham did not find any problems with the cranes during the operational test, and each crane passed the test on the first try. (Docket No. 112, Ex. E, at 35.) During the test, under Graham’s supervision, an operator ran each of the four cranes (unloaded) through its paces, including slewing (rotating the jib from side to side), luffing (moving the jib up and down), and hoisting (lifting). (Docket No. 112, Ex. E, at 29.) Graham personally went into each cab so that he could observe the operator using the controls. (Id. at 34.) Graham tested the jib limit switches, which prevent the jib from being lowered too far down (which could cause the crane to become overloaded) or raised too high (which could cause damage to the wires by placing them under additional stress and causing them to rub against machinery they ordinarily do not touch). (Docket No. 76, Ex. I, at 29-32.) The cranes were designed to operate between a minimum angle of 25 degrees and a maximum angle of 78 degrees (as measured from the jib to the ship’s deck). (Docket No. 76, Ex. H, at 45-46; Docket No. 76, Ex. H(5).) When the angle approaches one of these limits, the switch activates and stops the jib from moving any farther. To test the limit switches, Graham instructed the crane operator to lower the jib until it was stopped by the limit switch. He then checked the jib angle indicator, which displays the angle of the jib, to see whether the limit switch stopped the jib at 25 degrees. He then directed the crane operator to raise the jib to determine whether the switch would stop the jib at 78 degrees. Graham found that the switches on all of the cranes stopped the jibs at the designated angles and prevented the cranes from exceeding their limits. (Docket No. 112, Ex. E, at 29, 32-33.) He inspected the mechanical components of the limit switches and observed no problems. (Id. at 34-35.) Proof Load Test. Each crane also passed a proof load test. (Id. at 35.) During the test, each crane lifted a 25-ton test weight and held it for five minutes. (Id. at 30, 104, 106.) The operator then (i) hoisted and lowered the weight as far as possible, (ii) raised and lowered the jib a few degrees, and (iii) swung the weight as far to the left and to the right as possible. (Id. at 30,105-09.) After the lifting portion of the test, Graham visually inspected the cranes, including their hooks, pulleys, and other components, to see if they had suffered any damage. (Id. at 71.) During this inspection, he was able to see various portions of the wire ropes. (Id. at 71-72.) Graham testified at deposition that the above-described maneuvers and inspections were typical of the proof load tests that he had performed in the past on other ships, and thát the tests fulfilled ABS’s requirements for proof load testing. (Id. at 29-31, 71-72.) c. Graham Certifies that the Cranes are in Compliance with the ABS Guide By the end of December 1999, the cranes had been installed and Graham had completed his surveys. Graham certified in writing that he had performed the annual and retesting surveys in compliance with the Guide and that he had found the cranes to be in satisfactory condition. (Docket No. 76, Ex. G(ll).) He also completed a “Cargo Gear Annual and Retesting Survey Check Sheet,” which generally describes the tasks that he completed during the surveys. (Id.) In addition, Graham prepared a “Summary Report of Statutory Surveys,” which states that he performed the Installation, Annual, and Retesting Surveys and that he issued the required written certificates. The document also states that the shipyard had constructed the crane pedestals and deck reinforcements in accordance with the ABS-approved design plans. (Id.) Graham also wrote a narrative report, which describes the various tasks performed by the shipyard during the construction and installation of the pedestals and the deck reinforcements. (Id.) 3. Post-Certification Activity In January 2000, the M/V Leon I dropped anchor at an off-shore loading area in the Philippines. From January 29th until February 14th, the ship’s cranes were used to load cargo onto the M/V Leon I. (Docket No. 76, Ex. J, at 46-47; Docket No. 76, Ex. J(3).) There is no record of any problems with the cranes during that time. (Docket No. 76, Ex. J, at 46.) In March 2000, Eurocarriers superintendent engineer Thomas Tampa-thanis inspected the M/V Leon I and observed that the wire ropes were “still in good working condition.” (Id. at 42-43; Docket No. 76, Ex. J(2), at 16.) 4. The July 29, 2000 Accident On or about July 21, 2000, the M/V Leon I berthed at T & L’s Domino Sugar refinery in Baltimore to discharge a cargo of raw sugar. During the morning of July 29, 2000, T & L was using two shore cranes to discharge sugar from hatch 6. At the same time, the ship’s bosun, Rolando Bolita, began operating ship crane # 4 as part of an effort to clean caked sugar from the aft coaming of the adjacent hatch, 6A. Bosun Bolita suspended Seamen Gonzales and Burgos from the crane in a work basket so that they could chip away the sugar. While the men were suspended, the luffing wire broke and the jib fell. The work basket struck the hatch cover, causing the two men to sustain fatal injuries. Crane # 4’s jib struck and damaged one of T & L’s shore cranes. The details regarding the sugar-chipping operation and the events that led to the failure of the rope and the collapse of the jib are not altogether clear from the record. The record does not contain any deposition testimony from Bosun Bolita. The deponents who discussed the accident were, for the most part, speculating or repeating what they had heard from crew members who had witnessed the incident. The parties have not provided the Court with any first-hand testimony regarding the accident. Nevertheless, as was evident during the summary judgment hearings, the parties generally agree on the following: The crane’s jib limit switches were designed to prevent the jib from being raised higher than 78 degrees. At that angle, however, the work bucket hung approximately two meters away from the coaming where the men could not reach caked sugar. To move the work basket closer to the coam-ing, Bosun Bolita raised the jib higher than 78 degrees. Several of the ship’s crew used ropes to pull the basket the rest of the way. This is when the luffing rope parted and the jib collapsed. The parties disagree, however, as to how Bosun Bolita was able to raise the jib higher than the 78 degrees allowed by the limit switch. Limitation Plaintiffs believe that Bosun Bolita turned off the limit switch that morning. As the crane operator, he had a key that enabled him to neutralize the limit switch system so that the jib could be lowered to zero degrees and secured when the ship was at sea. The key turns off both the upper and lower switches, and Limitation Plaintiffs believe that Bosun Bolita purposefully turned off the system so that he could raise the jib higher than permitted so that the work basket would hang closer to the coaming. (Docket No. 76, Ex. I, at 36-38.) Ms. Gonzales and T & L, on the other hand, theorize that someone else had disengaged the system prior to the day of the accident. B. Claims Against ABS Ms. Gonzales and T & L filed claims against ABS, alleging that during Graham’s surveys of the cranes, he failed to notice various defects that ultimately contributed to the July 29, 2000 accident. The parties dispute the extent to which a classification society may be held liable in connection with its survey and certification work, and the jurisprudence on the issue is not a model of clarity. Overall, the courts have trod carefully in this arena, hesitant to open the liability door too far given the limited nature of the classification society’s undertaking, which is to conduct a specified inspection of a ship for the owner and only the owner. Courts have also worried that imposing general liability on societies would drive them out of business or impair their usefulness to the maritime industry. In surveying a ship or marine equipment such as cranes, a classification society does not guarantee that the vessel is seaworthy. Rather, the society determines whether the ship or equipment conforms to certain published rules or standards issued by the society itself, and the resulting certificate allows the shipowner to take advantage of lower insurance rates available to certified or classed vessels. The ultimate responsibility for the vessel’s seaworthiness rests on the shoulders of the shipowner, and the shipowner cannot delegate this duty to a classification society or to any other entity. Case law has recognized that when surveying and classing or certifying a vessel, a classification society undertakes two duties: (i) “to survey and classify [the vessel] in accordance with rules and standards established and promulgated by the society for that purpose,” and (ii) “the reasonable duty of detecting all perceptible defects of the vessel encountered during the survey and notifying the owner and/or charterer thereof.” Courts have refused to hold a classification society liable for breach of the first duty because it is ultimately the shipowner’s non-delegable responsibility to maintain a seaworthy vessel and to transfer that responsibility to the classification society would not be commensurate with the surveyor’s limited contact with the vessel and the fee paid to the society. Regarding the second duty, some courts have stated that a classification society may be held accountable to the owner when it fails to detect perceptible defects during its survey or fails to notify the owner of those defects. Ms. Gonzales and T & L (hereinafter the “Third-Party Plaintiffs”) assert two theories of recovery against ABS for Graham’s allegedly faulty surveys: (i) negligence, and (ii) breach of the implied warranty of workmanlike performance that ABS allegedly owed to the shipowner and to which Ms. Gonzales and T & L are alleged third-party beneficiaries. (Docket Nos. 25, 30.) As the Court will discuss in Section III.C. of this Memorandum, there is no evidence from which a conscientious fact-finder could conclude that Graham conducted faulty surveys. Putting that issue aside, however, Third-Party Plaintiffs’ theories of recovery fail as a matter of law. 1. Negligence Third-Party Plaintiffs have shifted ground on this issue. In opposing ABS’s summary judgment motion, they expressly stated that they were not alleging a negligent misrepresentation claim. (See Docket No. 112, at 9.) Instead, they argued, albeit without any ostensible legal support, that ABS may be held liable for common-law negligence. When pressed during the summary judgment hearing to identify authority recognizing a negligence claim by third parties against a classification society, the Third-Party Plaintiffs were unable to offer any. Rather, they turned to the tort of negligent misrepresentation, producing a law review article that states that “an injured third party, in seeking recovery from a classification society, essentially is alleging the long-known and well-established tort of negligent misrepresentation.” At that point, Third-Party Plaintiffs effectively conceded that negligent misrepresentation is the mode of analysis. Courts evaluating a negligent misrepresentation claim in the context of a maritime case have looked to Section 522 of the Restatement (Second) of Torts, which lays out the elements. To prevail on a negligent misrepresentation claim, Third-Party Plaintiffs must prove that: (i) at Third-Party Plaintiffs’ request, ABS provided them with information for their guidance, (ii) ABS failed to use reasonable care in supplying the information, (iii) ABS knew Third-Party Plaintiffs would rely on the information for a certain purpose, and (iv) Third-Party Plaintiffs relied on the information and suffered pecuniary loss as a result. Third-Party Plaintiffs’ negligent misrepresentation claim fails as a matter of law. Even assuming that they could satisfy the other elements, there is absolutely no evidence that Third-Party Plaintiffs relied on ABS’s certification. There is no evidence that they were even aware at the time of the accident that ABS had surveyed and certified the cranes seven months earlier. Ms. Gonzales admitted in her deposition that she had never heard of, and her son had never mentioned, ABS. It was not until after this lawsuit was filed that Ms. Gonzales and T & L became aware that the deck cranes had been moved from the M/V Yannis K to the MW Leon I and that Graham had surveyed the cranes. Without reliance, the claim must fail. In another attempt to hold ABS responsible for Graham’s allegedly defective survey, Third-Party Plaintiffs raise the Good Samaritan Doctrine. According to that doctrine, One who undertakes, gratuitously or for consideration,- to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Even assuming that Graham failed to exercise reasonable care during his surveys (an issue which the Court will discuss in further detail in Section III.C.), the Good Samaritan Doctrine does not apply in this case. Third-Party Plaintiffs have not argued that Graham’s allegedly defective surveys increased the risk of harm or that ABS undertook to perform a duty owed by the shipowner to Third-Party Plaintiffs. Rather, they focus on the third factor, urging the Court to find that they relied upon ABS’s surveys. As previously discussed, they have offered no evidence that they, in fact, relied upon those surveys or ABS’s certification of the cranes. 2. Implied Warranty of Workmanlike Performance Third-Party Plaintiffs next contend that ABS owed Limitation Plaintiffs an implied warranty of workmanlike performance regarding its surveys of the cranes and that Third-Party Plaintiffs are third-party beneficiaries of that warranty. In 1956, the Supreme Court applied the implied warranty in the context of the maritime industry. The Supreme Court held that when a stevedoring contractor agrees to.provide a service, implicit in the contract is a warranty that the contractor will provide the service in a workmanlike manner. As discussed below, the Court finds that by agreeing to survey and certify the M/V Leon I’s cranes, ABS did not give an implied warranty of workmanlike performance to the shipowner. Accordingly, there is no implied warranty of which Third-Party Plaintiffs could be third-party beneficiaries, and their claim fails as a matter of law. Generally, courts have refused to extend the implied warranty of workmanlike performance to classification societies. This is for several sound reasons: (i) unlike the work of a stevedoring company or other maritime contractor {e.g., ship cleaner, repair yard, or towing company), the services of a classification society typically do not create defects or dangers on a ship; rather, the classification society is on board only to inspect the vessel for defects created by others, and (ii) if a classification society notices a defect, it can only report the defect to the owner; it lacks the authority or capability to repair the defect itself. As previously discussed, the burden of maintaining a seaworthy vessel ultimately rests with the shipowner. In light of a classification society’s limited role on board, that burden should not be shifted to a classification society by implying that a warranty of workmanlike performance exists in the society’s contract with the shipowner. Third-Party Plaintiffs attempt to distinguish Graham’s work aboard the M/V Leon I from the traditional inspection and reporting tasks of a classification society. Specifically, they argue that Graham actively oversaw and directed the rebuilding and retrofitting of the cranes and, therefore, created the unseaworthy condition that caused the accident. ABS’s expanded role interlineated an implied warranty of workmanlike performance into the contract between ABS and Limitation Plaintiffs, Third-Party Plaintiffs contend. The Court disagrees. Third-Party Plaintiffs acknowledge the case law that refuses to recognize an implied warranty of workmanlike performance between the shipowner and the classification society. They point, however, to a case in which the court allowed claims to proceed against marine surveyors under theories of negligent misrepresentation and breach of the implied warranty. See Royal Embassy of Saudi Arabia and Insurance Company of North America v. Steamship Ioannis Martinos, 1986 A.M.C. 769 (E.D.N.C.1984). In Royal Embassy, the plaintiff owned cargo and hired the defendants to load it onto a ship and transport it. Plaintiff filed suit when the cargo was lost at sea, and the court allowed the defendants to pursue third-party claims against marine surveyors who had certified the stowage of the cargo. The Royal Embassy case is distinguishable because the marine surveyors supervised and directed the loading and securing of the cargo and, therefore, they were actively involved in the stowage activities. The court, recognizing that other courts have been reluctant to extend the implied warranty to classification societies, explained, In the case at bar, however, the ... evidence tends to show more activity on the part of the surveyors than merely observing and reporting. This evidence, although disputed, indicates that the marine surveyors actually oversaw and directed the stowage of the cargo.... Their conduct took on the nature of active involvement, which allegedly created an unseaworthy condition on board the vessel. In the instant case, Graham was not in charge of the crane installation. He was not hired to plan or supervise the installation, and he lacked authority to instruct the welders and other workmen how to perform their jobs. Graham’s job was to understand Marutee’s plans, which he did not draft, and, when inspecting, to inform the shipowner of any variance between the plans and construction. He had no power, other than withholding certification, to compel the construction to be carried out in any particular way. In conclusion, Graham’s passive role as an inspector is distinguishable from the active, supervisory role played by the surveyors in Royal Embassy. There is no basis, therefore, for recognizing an implied warranty of workmanlike performance within the four corners of the contract between AB S and Eurocarriers. C. No Admissible Evidence that Graham’s Surveys Were Flawed Even if Third-Party Plaintiffs were able to clear the hurdles described above, the Court finds that there is no admissible evidence that Graham’s surveys were flawed. Third-Party Plaintiffs allege five defects that they claim Graham should have noticed and reported to Eurocarriers. Before the Court turns to the alleged defects, it must address two flaws at the core of ABS’s argument. Third-Party Plaintiffs argue that Graham should have performed the tests and inspections necessary to find the alleged defects and other problems, even if the Guide did not so require. They provide no support for this proposition, however. To the contrary, case law suggests that a surveyor’s duties extend no farther than performing the inspections and tests called for by the classification society’s own rules' and regulations and notifying the owner of any defects noted. Requiring a classification society to look for all possible defects aboard a ship, beyond those contemplated by its own rules and regulations, would burden it with a duty to ensure the seaworthiness of the vessel, a result the courts have rejected. Accordingly, Graham was required to perform no tasks beyond those specified in the Guide. Moreover, in arguing that the alleged defects existed when Graham performed his surveys, Third-Party Plaintiffs rely, in large part, on the following inadmissible evidence: (i) an expert report by Kevin P. Hislop of London Offshore Consultants, Inc. (see Docket No. 112, Ex. C), and (ii) a transcript of Graham’s interview with the Coast Guard after the accident (see Docket No. 112, Ex. J; Docket No 143, Ex. Z). Hislop’s report is unsworn and, therefore, inadmissible in a summary judgment proceeding. By statute, the transcript of Graham’s interview, which is an excerpt to the Coast Guard’s report regarding the accident, is likewise inadmissible. With this in mind, the Court turns its attention to the specific defects alleged by Third-Party Plaintiffs, which are as follows: (i) The cranes were not appropriate for the size and deck layout of the MTV Leon I because the jib of crane # 4 was not able to reach all areas of the hatch. This design defect necessitated the practice of hoisting crewmen in a basket to clean the hatch coam-ing. (ii) The jib angle indicator and jib limit switches were not working properly, and the crane operator was unable to view the angle of the jib during all angles of operation. (iii) Contrary to the crane manufacturer’s recommendation that the luffing wire ropes should contain a metal core, the luffing wire rope on crane # 4 (which broke at the time of the accident) contained a weaker, fiber core. (iv) The luffing wire rope on crane # 4 was oversized for its sheave and, therefore, was subjected to unnatural strains as it rode awkwardly in its sheave. (v) The luffing wire rope had been damaged from riding improperly in its sheave while on board the M/V Yan-nis K, and this damage was present, and noticeable, during Graham’s surveys. As will be seen, Third-Party Plaintiffs cannot sustain their claims, either (i) because of insufficient evidence that the defect existed when Graham performed his inspections, (ii) because ABS’s protocol did not require Graham to test for the alleged defect, or (iii) because their argument regarding how the alleged defect contributed to the accident is based solely on conjecture. 1. Reach of Crane # 4 Crane # 4 could not reach all areas of hatch 6. Third-Party Plaintiffs contend that this limitation created a dangerous condition by encouraging Bosun Bolita to jury-rig an unsuitable method of cleaning the hatch coaming by lifting men in the work basket and drawing the basket close to the hatch coaming. They fault Graham for failing to detect this problem. This argument is unsustainable. There is no evidence that the Guide or any other set of ABS rules or regulations required Graham to inspect the crane’s reach or mandated that the jib be capable of accessing every area of the hatch and hatch coaming. Graham testified during his deposition that the ABS requirements do not address crane reach. (Docket No. 112, Ex. E, at 77-78). Terziev, a superintendent engineer at Eurocarriers, agreed. (Docket No. 76, Ex. I, at 147.) Third-Party Plaintiffs’ argument assumes that cranes should be used to hoist seamen. Such is not the case. They offer no evidence that it is customary to suspend men in a work basket to chip sugar. To the contrary, Eurocarriers’ Shipboard Operations Manual specifically states that men should be raised only by hand and never by a power winch. (Docket No. 76, Ex. K-3, § 3.1.8 (“It is not recommended to raise men in Bosuns Chair. If necessary, only -do so by hand. Never raise men using power winch.”).) They also offer no proof that lifting men by crane was the only way to clean the coaming. Accordingly, there is no evidence beyond speculation that Graham could have foreseen that the crane’s limited reach would prompt the ship’s crew to hazard a dangerous procedure. 2. Jib Angle Third-Party Plaintiffs state that the jib angle indicator and limit switch system were inoperable at the time of the accident, and they ask the Court to assume that they were also broken when Graham inspected them. There is no evidence of this. To the contrary, Graham testified that he tested the limit switches and jib angle indicator and found them to be working properly. (Docket No. 112, Ex. E, at 29, 32-35.) Citing only Hislop’s expert report, Third-Party Plaintiffs claim that Graham’s surveys failed to disclose that the crane operator did not have a clear, reliable view of the jib angle at all angles of operation. This alleged defect would make no difference if Bosun Bolita himself bypassed the limit switch, because he would have appreciated that he was exceeding the maximum angle. It might make a difference, however, if the switch had been bypassed earlier and Bosun Bolita failed to realize how high the jib was raised. Such a theory is predicated on pure speculation. First, there is no evidence when the limit switch was bypassed. Second, Hislop’s report is inadmissible, and there is no other evidence in the record concerning the field of view from the cab. Finally, there is no evidence that ABS was required to test the crane operator’s view of the jib as part of its surveys. 3. Core of the Luffing Wire Rope Third-Party Plaintiffs contend that the crane manufacturer called for a rope with a metal core. During post-accident inspections of the wire rope, it was determined that the rope’s core was made of fiber, not metal. Third-Party Plaintiffs fault Graham for failing to notice the discrepancy during his inspections. They argue that a metal core rope is stronger than a fiber core rope and that a rope with a metal core may not have parted. This argument is flawed. First, it must be kept in mind that Graham was required to inspect only what was mandated by the Guide. The Guide required him to inspect the wire rope certificates, which contain detailed information about each rope, including its core. Graham testified that he reviewed the wire rope certificates. (Docket No. 112, Ex. E, at 51-52, 54 (stating that he reviewed the cargo gear register book, which included wire rope certificates).) According to the wire rope certificates that Third-Party Plaintiffs placed in the record, the core of each rope was made of fiber. Because Graham reviewed the certificates, he fulfilled his duty under the Guide. The Guide did not require him to compare each certificate to the crane manufacturer’s recommendation. Graham, therefore, was not charged with the responsibility of determining whether a fiber core complied with the manufacturer’s recommendation. Third-Party Plaintiffs have also failed to provide satisfactory evidence that: (i) the crane manufacturer recommended a metal core; (ii) even if Graham had noticed the alleged discrepancy, the fiber core rope would have been unacceptable for certification under ABS’s standards; (iii) a fiber core rope had insufficient strength or was otherwise unsuitable for use on the M/V Leon I; and (iv) if the rope had a metal core, it would not have parted. Accordingly, Third-Party Plaintiffs have failed to offer any basis for holding ABS liable. 4. Size of the Luffing Wire Rope The luffing wire rope on crane # 4 was too large for its sheave, Third-Party Plaintiffs contend. According to Third-Party Plaintiffs’ expert, it is important to use a rope that is properly sized to the crane’s sheave so that the rope lays in the sheave’s groove. (See Docket No. 143, Ex. Q, at 77.) When a rope is oversized, he posited, it rides high in the sheave, where it is likely to rub against metal surfaces, resulting in damage to the rope. (See id. at 77-78, 156-57.) Third-Party Plaintiffs contend that the manufacturer of the M/V Leon I’s cranes recommended a luffing wire rope with a diameter of 26 millimeters. They also assume, although without offering any proof, that the groove of crane # 4’s sheave was only wide enough for a 26 millimeter rope. Because the rope measured anywhere from 26 to 28.5 millimeters during post-accident inspections, they argue that the rope was oversized for the groove and rode high in the sheave. They fault Graham for failing to detect this alleged problem. Third-Party Plaintiffs have offered no evidence that Graham was required to inspect how the rope rode in its sheave. In fact, counsel for T & L admitted during the summary judgment hearing that, because the rope may have been off by only a few millimeters, any problems with how it rode in the sheave would not have been observable to the naked eye. In addition, counsel recognized that it would have been impossible for Graham to climb to the top of the crane while it was in operation to observe the rope as it rode through the sheave. What Graham should have done, according to Third-Party Plaintiffs, was ascertain the diameter of the wire rope, either by measuring it or by inspecting the wire rope certificate, and compare it to the crane manufacturer’s specification of 26 millimeters. Had he done so, he would have noticed the discrepancy and would have realized that the rope was too big for its sheave, they claim. Third-Party Plaintiffs’ theory of recovery suffers from the same shortcomings as does his argument about the rope’s core. Nothing in the Guide required Graham to measure the wire ropes. Although the Guide required Graham to review the wire ropes’ certificates of test, he did so. Graham, therefore, fulfilled his duty under the Guide. The Guide did not require him to compare each certificate to the crane manufacturer’s recommendation. Graham, therefore, was not charged with the responsibility of determining whether the rope’s size complied with the manufacturer’s recommendation. Moreover, Third-Party Plaintiffs fail to offer admissible evidence that: (i) the crane manufacturer recommended a diameter of 26 millimeters; (ii) the certificate for the luffing wire rope stated a diameter greater than 26 millimeters; and (iii) even if the rope was larger than recommended by the crane manufacturer, it was too large for its sheave. Accordingly, Third-Party Plaintiffs’ theory, which is based on pure speculation, fails. 5. Condition of the Luffing Wire Rope The remaining alleged defect focuses on the physical condition of the luffing wire rope when Graham inspected it. Post-accident inspections of the rope revealed damage that the inspectors believe existed before the accident. For the reasons stated below, however, the Court finds that there is no admissible evidence that this damage was present when Graham inspected the wire ropes in November and December 1999. a. Damage Revealed during Post-Accident Inspections Captain Heiner Popp, an investigator hired by Limitation Plaintiffs, and Michael Parnell, T & L’s expert, personally inspected the wire rope. They noticed damage (including corrosion,’ nests of broken wires, bent wires, pitting, and flattening) that, in their view, exceeded ABS’s stated requirements. (Docket No. 143, Ex. K, at 72-73; Docket No. 143, Ex. Q, at 66-67, 144-45; Docket No. 144, Ex. R, at 57-59; Docket No. 76, Ex. G(5), § 7.11.) Citing the nature of the damage and the fact that the damage existed in areas outside the section that broke, they concluded that the condition had existed for some time prior to the casualty. (Docket No. 143, Ex. K, at 73-75; Docket No. 143, Ex. Q, at 72, 96-97, 103-04, 125; Docket No. 144, Ex. R, at 57-58, 103; Docket No. 144, Ex. S, at 87.) During their respective depositions, neither could say when the damage had occurred, and they admitted that it would be pure speculation for them to attempt to pinpoint a time frame. (Docket No. 144, Ex. R, at 57-58; Docket No. 143, Ex. Q, at 72-73, 103-04; Docket No. 144, Ex. S, at 87-88.) Neither, therefore, could opine that the damage existed when Graham inspected the rope in late 1999. b. No Admissible Evidence the Damage was Present During Graham’s Surveys In an attempt to overcome this obstacle, Third-Party Plaintiffs cite to two pieces of evidence: (i) a statement by Graham that he noticed flattening of the wire ropes, and (ii) Parnell’s supplemental expert report. The Court will discuss, and reject, each in turn. (1) Flattening of the Rope Third-Party Plaintiffs claim that Graham saw flattening of the wire ropes but failed to notify the shipowner. (Docket No. 112, at 5, ¶ 14.) In support, they cite to Graham’s deposition transcript, contained in the record at Docket No. 112, Exhibit E. They do not cite to any specific pages of Graham’s transcript, however, and the Court’s review of the transcript has not located any mention of flattening. • Graham did mention flattening during his interview with the Coast Guard investigator after the accident, which Third-Party Plaintiffs attached to their • brief. (Docket No. 112, Ex. J, at 3.) As previously discussed, however, the transcript of this interview is inadmissible. Even if the Court could accept it into evidence, it does not establish that what Graham noticed violated ABS’s standards. The Guide states that wire rope “is not to be used ... if the rope shows signs of excessive wear, corrosion, flattening, kinks, separation of the strands or wires, core failures or other defect which renders it unfit for use.” (Docket No. 76, Ex. G(5), § 7.11.) Although Graham initially used the term “flattening,” he explained to the investigator that the ropes had simply started to show some normal wear on the exterior of the strands and that the wear was consistent with use and did not require replacement of the ropes. (Exhibit 112, Ex. J, at 3.) This is consistent with (i) his deposition testimony that there were no problems with the ropes, (ii) the testimony of Terziev, who inspected the ropes after they were removed from the M/V Yannis K and again before they were installed on the M/V Leon I, and concluded that they were in proper condition and exhibited no flattening, and (iii) the conclusion reached by Eurocarriers superintendent engineer Thomas Tampathanis, who inspected the M/V Leon I in March 2000, that the wire ropes were still in good condition. No reasonable jury could conclude that what Graham observed called for replacement of the ropes under ABS’s standards. (2) Michael Parnell’s Supplemental Expert Report After the close of discovery and while the parties were briefing the summary judgment motions, T & L’s expert, Michael Parnell, issued a supplemental expert report. Although in his deposition Parnell had stated that he did not know how long the rope had been damaged, his supplemental report states that the damage to the wire rope (including scrubbing, chaffing, pitting, and corrosion) “was in existence at least two years before July 29, 2000.” (Docket No. 143, Ex. S.) Parnell formed this opinion after consulting with a wire rope expert, Don Pellow, P.E. Pellow had reviewed photographs of the wire rope and, in a three-page report, concluded that the pitting and corrosion on the rope would have been obvious for at least two years. Parnell attached Pellow’s report to his supplemental report, stating that Pel-low’s report “helped [him] to form a more definitive opinion about the length of time the pitting corrosion and metal loss existed before the accident.” (Id.) Third-Party Plaintiffs claim that Parnell’s supplemental report creates a dispute of fact regarding whether the damage existed during Graham’s survey in late 1999. ABS objects to the late submission of Parnell’s supplemental report, arguing that Third-Party Plaintiffs are attempting to introduce a new expert (Pellow) through Parnell. To address the dispute regarding Parnell’s supplemental report, it is necessary for the Court to provide some background information. (a) Background Captain Heiner Popp, a marine surveyor whom Limitation Plaintiffs hired immediately after the accident, inspected the vessel within two hours after the accident. He later conducted a number of other inspections of the vessel and the broken wire rope and authored three inspection reports, dated August 3, 2000, August 9, 2000, and October 15, 2003. (Docket No. 143, Exs. L, M, and P.) Captain Popp’s reports, which include a number of photographs that he took during the course of his inspections, describe damage that he observed on the luffing wire rope. (Id.) Limitation Plaintiffs did not produce Captain Popp for deposition, claiming that he had been retained solely as a consultant and that his investigation was protected by the work product doctrine. Then, in August 2004, apparently having realized that their “testifying” expert, Carl Cederstav, had relied on Captain Popp’s reports in forming his opinion, Limitation Plaintiffs produced to all parties Captain Popp’s August 3, 2000 and October 15, 2003 reports. Cederstav mentioned these reports during his deposition later that month. (Docket No. 144, Ex. T, at 199-201.) Fact discovery was completed in May 2004, and expert discovery closed in September 2004. By the close of expert discovery, T & L had not named any wire rop§ experts, although Michael Parnell, T & L’s wire rope consultant, had inspected the rope in August 2004. In the fall of 2004, while the parties were briefing the instant summary judgment motions, T & L moved for sanctions based on Limitation Plaintiffs’ failure to produce Captain Popp for deposition and for failing to turn over his reports at an earlier date. T & L also alleged that experts retained by Limitation Plaintiffs and ABS had inspected the failed rope vvithout notice to T & L and, during the inspection, had snipped a small section of the rope, thus spoiling the evidence. In February 2005, Magistrate Judge Bredar denied the motion. Judge Bredar found that Limitation Plaintiffs and ABS had not engaged in any wrongdoing, and he concluded that any prejudice suffered by T & L could be cured by allowing T & L to depose Captain Popp and to name its own wire rope expert. He instructed the parties to confer and, if they wished to reopen discovery, to seek permission from the undersigned. (See Docket No. 122.) T & L subsequently moved to re-open discovery so that it could depose Captain Popp, name its own wire rope expert, Michael Parnell, and so that ABS and Limitation Plaintiffs could depose Parnell. The Court granted the motion and also granted leave for the parties to supplement their summary judgment briefs based on the testimony of Captain Popp and Parnell. Captain Popp was deposed on October 6, 2005. Parnell attended the deposition, during which Captain Popp produced his inspection report dated August 9, 2000. According to ABS and Limitation Plaintiffs, Captain Popp had not previously provided this report to Limitation Plaintiffs and they were not aware of it until Captain Popp’s deposition. The report detailed damage that Captain Popp had observed on the luffing wire rope. During his deposition, Captain Popp testified about that damage, stating that it must have existed prior to the accident. As previously stated, however, he was not able to identify when the damage had occurred. On October 7, 2005, the day after Captain Popp’s deposition, Limitation Plaintiffs and ABS deposed Parnell. Relying in part on Captain Popp’s testimony from the previous day, Parnell testified that, in his opinion, the damage to the rope had occurred prior to the accident. (Docket No. 143, Ex. Q, at 113-14.) He engaged in the following colloquy with AB S’s counsel regarding when before the accident the damage had accrued: Q: And those torn wires, did you form an opinion as to how or why that happened in this case? A: Well, they appeared not to have occurred at the moment of the incident because of the corrosion and pitting. They appeared to have occurred over time prior to the incident. I’m not sure if I answered the question or not. Q: You can’t say how much time prior, though, isn’t that right? A: No. I can only made educated guesses. Q: Right. You’d have to speculate; isn’t that right? A: Yes. (Docket No. 144, Ex. R, at 58.) Later in the deposition, the discussion continued: Q: Well, let me ask you this: Are you suggesting there that ABS during its inspection in the shipyard in China in November and December of 1999 should have been able to identify the existing damage? A: I don’t know if the damage was existing on that day in China. Q: You can’t say one way or the other; is that right? A: I can’t say, correct. Q: But you can’t say one way or the other whether it was preexisting damage; isn’t that right? A: The corrosion that I saw and the damage I saw was accruable between the day of the accident backwards to the day [the vessel] left China. It could have happened anywhere in there especially with the corrosion and pitting that was there in a six month window and it could have happened before that as well, so I don’t have a window to say. (Docket No. 143, Ex. Q, at 103-04.) On October 26, 2005, nineteen days after his deposition, Parnell issued a supplemental report. The one-page report, addressed to counsel for T & L, states: The following is in answer to inquiries between you and Attorney Robert Clyne [counsel for ABS], about the accumulated pitting, corrosion, and abraded surfaces noted on the wires in the luffing wire (boom hoist rope) on Crane 4 aboard the MTV Leon I, involved in the accident of July 29, 2000. Based on the visual examination of the boom hoist rope, the photos provided throughout this case, and with the consultation of Mr. Don Pellow, P.E. a noted wire rope expert who has testified in court concerning wire rope related corrosion and pitting; 1) I am of the opinion that the condition of the abraded (scrubbed and chaffed) wires in the immediate area of the failure was in existence at least two years before July 29, 2000.... 2) I am of the opinion that the pitting corrosion noted on outer and inner strand wires was in existence at least two years before July 29, 2000.... Please see Mr. Pellow’s attached report ... which helped me to form a more definitive opinion about the length of time the pitting corrosion and metal loss existed before the accident. (Docket No. 143, Ex. S.) Opposing counsel immediately objected to the supplemental report, arguing that the Court had re-opened discovery solely for the depositions of Captain Popp and Parnell, and not for the submission of additional expert reports. The Court held a telephone conference with counsel regarding whether the supplemental report should be allowed. During that conference call and in subsequent briefing requested by the Court, counsel for T & L argued that the Court should allow the supplemental report because: (i) it simply expands upon Parnell’s deposition testimony, and (ü) Parnell had only one night to digest the reports and testimony of Captain Popp. The Court rejects the proffered reasons and will not allow Parnell’s supplemental report. (b) Discussion The supplemental report does not simply expand upon Parnell’s deposition testimony; rather, it offers a new opinion. During his deposition, Parnell stated that he could not offer a time frame during which the damage had occurred and that any attempt to do so would be speculation. This is a far cry from stating, as he does in his supplemental report, that he can now identify a time frame and that the damage had accrued at least two years before the accident. The supplemental report makes absolutely no reference to Captain Popp, his reports, or his deposition testimony. Rather, the report identifies three things upon which Parnell bases his new opinion: (i) his visual examination of the rope, (ii) “the photos provided throughout this case,” and (iii) his consultation with wire rope expert Donald Pellow, and Pellow’s report. (Docket No. 143, Ex. S.) Thus, Captain Popp’s reports and testimony had no bearing on Parnell’s new report. Other than his consultation with Pellow, which the Court will address below, Parnell’s supplemental report is based, on old information, ie., his own inspection of the wire rope and photos provided throughout the case. Parnell conducte