## Facts

- Clear River Construction Co.’s president, Nicholas Travis, competitively fished king mackerel and entered a sponsorship arrangement allowing discounted purchases of Mercury outboard motors for promotional use.
- Travis bought a World Cat boat and two new 1998, 200-hp Mercury Mariner Offshore outboard motors.
- The motors were sold with an express limited warranty requiring the buyer to take the product to an authorized Mercury dealer for repair; if that was not feasible, the buyer could give written notice so Mercury could arrange inspection and repair (with transportation/travel charges borne by the buyer).
- Shortly after delivery in 1997, one motor would not run; Mercury dealers repaired a defective throttle position sensor under warranty, but the delay caused Travis to miss prefishing and perform poorly in a tournament.
- In August 1998, after months of use and several tournaments without issues, the same motor’s lower unit failed far offshore; it was repaired under warranty by a Mercury dealer.
- Before a later tournament, a motor malfunctioned again; Travis demanded an immediate replacement motor, but Mercury insisted he follow the warranty procedure by presenting the motor to an authorized dealer.
- Travis purchased and installed two new Yamaha motors overnight for roughly $21,000 rather than submitting the Mercury motor for inspection and repair, then sued for breach of express and implied warranties.

## Issues

1. Whether the buyer provided the seller a reasonable opportunity to cure the alleged defect before incurring replacement costs.
2. Whether the limited “repair or replace” remedy failed of its essential purpose under UCC § 2-719, permitting recovery beyond the limited remedy.
3. Whether the evidence supported breaches of the implied warranties of merchantability and fitness for a particular purpose.

## Decision

- The Mississippi Supreme Court reversed the judgment for Clear River and rendered judgment for Mercury Marine.
- The court held Mercury was not given a reasonable opportunity to cure because Clear River purchased replacement motors the same day as the final malfunction without allowing inspection/repair under the warranty procedure.
- The court held the repair-or-replace limited remedy did not fail of its essential purpose because Mercury had successfully repaired earlier problems and there was no pattern of repeated, unsuccessful repairs depriving the buyer of the bargain.
- The court held the implied warranties of merchantability and fitness for a particular purpose were not proven breached on this record.

## Legal Principles

- A buyer seeking damages beyond a limited repair-or-replace warranty must provide the seller a reasonable opportunity to cure under the warranty and applicable UCC principles.
- A limited remedy under UCC § 2-719 fails of its essential purpose only when the remedy does not effectively provide the contracted-for relief (commonly shown by repeated unsuccessful repairs or equivalent deprivation of the product’s value).
- Prior successful warranty repairs and substantial periods of functional performance weigh against finding that a repair-or-replace remedy failed or that goods were unmerchantable or unfit.
- Replacement-cost damages may be unavailable when the buyer’s self-help replacement prevents the seller from exercising its contractual right to inspect and repair.

## Conclusion

The court set aside the buyer’s $30,000 verdict because the buyer bypassed the warranty’s repair process and denied the manufacturer a reasonable chance to cure; absent proof that the limited remedy failed of its essential purpose or that implied warranties were breached, replacement-cost recovery was not permitted.


Mercury Marine, Div. of Brunswick Corp. v. Clear River Constr. Co., 839 So. 2d 508 (Miss. 2003)