Berry v. Boat Giannina B., Inc.

Decision Date14 November 1978
Docket NumberCiv. A. No. 76-1241-C,76-1242-C.
Citation460 F. Supp. 145
PartiesGeorge M. BERRY, Plaintiff, v. BOAT GIANNINA B., INC., Defendant. George M. BERRY, Plaintiff, v. Roger W. JONES, Defendant.
CourtU.S. District Court — District of Massachusetts

William A. Bibbo, Latti & Flannery, Boston, Mass., for Berry.

Richard A. Dempsey, Glynn & Dempsey, Boston, Mass., for defendant, BOAT GIANNINA B., INC.

David Van Oss, Kneeland, Kydd & Handy, Boston, Mass., for defendant, Jones.

OPINION

CAFFREY, Chief Judge.

These civil damage actions to recover for losses of lobster traps and attendant gear were filed by George Berry, a commercial lobsterman who owns the vessel RONA G. BERRY.

In Civil Action No. 76-1241, plaintiff seeks money damages against GIANNINA B., Inc., the owner of the vessel GIANNINA B. for the alleged conversion of plaintiff's lobster traps by the crew of the vessel GIANNINA B. In Civil Action No. 76-1242, plaintiff seeks money damages from Roger W. Jones, owner of the vessel MISS MAXINE, for conversion of his lobster gear by that vessel. The cases were consolidated for trial. Defendant GIANNINA B. counterclaimed maintaining that it is entitled to a salvage award for lobster gear restored to the plaintiff. This Court has jurisdiction under 28 U.S.C.A. § 1333. After a non-jury trial, I find and rule as follows:

At the beginning of the lobster season in August of 1975 plaintiff set out 107 lobster traps in the ocean waters southeast of Nantucket in the area of the Nantucket light-ship. It was his custom to haul back and rebait his traps twice a week. On each trip subsequent to that first trip in August, plaintiff set out an additional 60 or 70 traps. By the end of September he had set out about 350 lobster traps.

During the last week in September, 1975, plaintiff sailed from Nantucket and located his gear by means of loran bearings. He hauled and rebaited the traps and then returned to Nantucket. There was conflicting evidence at the trial as to how and whether plaintiff's lobster gear was marked and as to whether his markings were in conformity with governmental recommendations. Plaintiff testified that when he left his traps during that trip about September 28 they were set out in strings of 15-22 traps per string and that the strings were marked with buoys, flags, high fliers and radar reflectors. I find that, due to a combination of bad weather and a broken oil line aboard the RONA G. BERRY, plaintiff himself was not in the area where his traps were set out at any time between September 28 and October 11.

It is unfortunate for plaintiff that no witness was produced at the trial who could testify as to the condition of plaintiff's gear markings between September 28 and October 6. However, there was evidence at the trial which indicated that during this time period there was extensive steamer traffic and trawler traffic in the same area. A lobsterman who had set out his gear just to the northeast of plaintiff's saw four vessels dragging in the area of plaintiff's fixed gear on September 30. However, that witness did not observe plaintiff's gear during his September 30 trip. In addition both he and plaintiff testified that plaintiff's traps were set out in the westbound lane of the Nantucket to New York steamship channel. There was other evidence at trial, and I find, that on an average 10-12 steamships pass through that lane per day. Furthermore, it was estimated that in a two-week period 30-50 fishing vessels dragged in the general area of the incident. I find that a large volume of shipping activity occurred in the area of plaintiff's fixed gear between September 28 and October 6, 1975. Although plaintiff's testimony as to the manner in which his gear was marked may well have been accurate as of the time he last saw it on September 28, I find that because of heavy ship traffic it was inaccurate as to condition of the markings of his gear in the two-week period immediately after September 28.

Turning now to plaintiff's claim against the GIANNINA B. and having in mind the evidence summarized above, I find that the GIANNINA B. entered the area where plaintiff's traps were located in the night-time of October 6 and began towing its net along the bottom. Captain Edwards of the GIANNINA B. saw radar reflectors to the west of his vessel but none in the direction in which he intended to tow. As a result of these observations, he proceeded. However, when Captain Edwards hauled back the nets of the GIANNINA B., he found that they had become tangled with lobster traps. Some of the gear which Captain Edwards and his crew removed from their nets bore the name "BERRY."

In the time period between October 6 and October 10, the GIANNINA B. remained in the same general area and hauled back approximately twenty-one lobster traps belonging to plaintiff. During that trip as a result of this continued interference with its nets the crew lost 12-13 tows by having to spend its time clearing traps from the nets of the vessels. At no time did the GIANNINA B. haul back an entire string of traps but rather hauled back 3 or 4 lobster traps at a time.

I find that Captain Edwards did not intentionally take up plaintiff's traps in his nets. He testified that hauling back traps results in damaged nets and lost time. I find that the traps were unintentionally hauled back and that the GIANNINA B. did not know where the traps were because the traps were not marked when dragged.

Conversion is the result of conduct intended to affect chattels, Restatement (Second) of Torts § 224 (1965), W. Prosser, Torts § 15 (4th ed. 1971). Therefore, I rule that there was no conversion of plaintiff's traps when they were hauled back by the GIANNINA B.

I further rule that there was no conversion when Captain Edwards decided to keep the traps on the vessel rather than throwing the traps back into the water. If plaintiff's traps had not already been lost to plaintiff immediately before the GIANNINA B. hauled them back, they were certainly in danger of being lost. Their strings were no longer marked and there was evidence that they had been tossed around by other trawlers. If Captain Edwards had decided to throw them overboard, it is more likely that they would be permanently lost to the plaintiff. Storing the traps on deck was, therefore, consistent with plaintiff's ownership rights.

It is true that Captain Edwards' decision was based solely on the best interests of the...

To continue reading

Request your trial
5 cases
  • Evergreen Marine Corp. v. Six Consignments of Frozen Scallops
    • United States
    • U.S. Court of Appeals — First Circuit
    • 9 Junio 1993
    ...a chattel, which seriously interferes with the owner's rights in the chattel. See Goodpasture, 602 F.2d at 87; Berry v. Boat Giannina B., Inc., 460 F.Supp. 145, 150 (D.Mass.1978); Restatement (Second) of Torts Sec. 222A (1965). Admiralty jurisdiction over a conversion claim accordingly depe......
  • In re Halmar Distributors, Inc.
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • 10 Julio 1990
    ...to pay G.E. and others. In light of all of the attendant circumstances, there was no conversion. See, e.g., Berry v. Boat Giannina B., Inc., 460 F.Supp. 145, 148 (D.Mass.1978) (unintentional entangling of fishing vessel's net with lobster traps and consequent hauling of traps held not conve......
  • Tonder v. M/V THE BURKHOLDER, Civ. No. 1985/145.
    • United States
    • U.S. District Court — Virgin Islands
    • 21 Febrero 1986
    ...824 (1975) (see cases cited at 733 n. 12). See also Kimes v. United States, 207 F.2d 60, 63 (2nd Cir.1953); Berry v. Boat Giannina B., Inc., 460 F.Supp. 145, 149 (D.Mass.1978). We therefore find that public policy dictates that the plaintiffs be able to assert a claim against the C) Named D......
  • In re Smith Corset Shops, Inc.
    • United States
    • U.S. Bankruptcy Appellate Panel, First Circuit
    • 15 Marzo 1982
    ...A. 541, 542 (1887); see also, Kaminow et al. v. Cooper-Kenworthy, Inc., 79 R.I. 352, 356, 89 A.2d 165 (1952); Berry v. Boat Giannina B., Inc., 460 F.Supp. 145, 148 (D.Mass.1978), as is the fact that in this case Brodeur realized no benefit either from taking or from retaining possession of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT