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 

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"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 

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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 

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Crow nonsuited his claim against Tidewater prior to trial. 

The negligence claim against Brunswick was dismissed in the 

trial court's final judgment order. 

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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. 

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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 

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Because our rulings on the warranty issues are dispositive 

of this appeal, we do not address Bayliner's assignments of 

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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. 

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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 

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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 

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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 

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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 

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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.

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