Cite as: 520 U. S. 875 (1997)
Scalia, J., dissenting
User"—was perhaps not only a user of the boat but also an entrepreneur in the business of designing, assembling, and distributing what might be described as "fully equipped tuna-fishing machines." The M/V Saratoga was not an isolated purchase by tuna-fisherman Madruga from Martinac, but was the third of seven steel-hull tuna seiners Madruga commissioned. She was designed, in part by Madruga, specifically for use as a tuna seiner, and her construction at Martinac's shipyard was supervised personally by Madruga and by an engineer in Madruga's employ. Madruga negotiated over the specifications and equipment for the vessel and ordered numerous changes to it during the course of construction. When delivered by Martinac, the M/V Saratoga was certainly functional as a boat, but it was not yet capable of performing the task for which it was specially designed. It was arguably still just a component of a larger tuna-fishing machine that would not be complete until Madruga installed the seine, skiff, and electronic equipment; and arguably a component of a tuna-fishing machine that Madruga was in the business of marketing.
As respondents point out, there is no finding in the record as to whether Madruga was engaged in the business of selling such products and the issue was never raised or considered. Brief for Respondents 33, n. 28. I assume that the Court disregards this issue (neither resolving it nor remanding for its consideration) because the Court deems the question irrelevant. Under the Court's test, as I understand it, the "product" is fixed when it is sold to an "Initial User," even if that user is also in the business of modifying and reselling the product. In my view, there is little to recommend such a rule.
The Court is driven to take the position it does by the concern that liability would otherwise turn on "a fortuity, namely, whether a defective product causes . . . harm to the added equipment before or after an Initial User (who added the equipment) resells the product to a Subsequent User."
887
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