CEH, Inc. v. F/V Seafarer

• Decision Date: 06 September 1995
• Docket Number: No. 95-1462,95-1462
• Citation: 70 F.3d 694
• Parties: , 64 USLW 2364 CEH, INC., Plaintiff, Appellee, v. F/V SEAFARER (ON 675048), et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 694

70 F.3d 694

1996 A.M.C. 467, 64 USLW 2364

CEH, INC., Plaintiff, Appellee, v. F/V SEAFARER (ON 675048), et al., Defendants, Appellants.

No. 95-1462.

United States Court of Appeals, First Circuit.

Heard Sept. 6, 1995.

Decided Nov. 28, 1995.

Leonard W. Langer with whom Marshall J. Tinkle, Portland, ME, was on brief, for appellants.

Mark A. McSally, Cranston, RI, for appellee.

BOUDIN, Circuit Judge, COFFIN and ALDRICH, Senior Circuit Judges.

COFFIN, Senior Circuit Judge.

Defendant-appellants, the F/V SEAFARER, a fishing trawler, and Michael Doyle and Charles Niles, its owner and captain respectively, appeal the district court's decision after a bench trial finding them liable for the destruction of appellee's lobstering gear and imposing compensatory and punitive damages. CEH, Inc. v. F/V Seafarer, 880 F.Supp. 940 (D.R.I.1995). Defendants challenge, inter alia, the sufficiency of the evidence, the availability of punitive damages as a matter of law, and the district court's adoption of the Restatement (Second) of Torts Sec. 909 as a basis for vicarious liability. We affirm.

I. BACKGROUND

The facts, as the court found them, are as follows. Plaintiff-appellee CEH, Inc. ("CEH") owns the F/V COURTNEY ELIZABETH, an off-shore lobstering vessel based in Point Judith, Rhode Island. During May and June of 1992, CEH owned 4,200 lobster traps, 2,857 of which were grouped off shore in arrangements referred to as "lobster trawls." A lobster trawl consists of 40 to 55 traps connected to each other by a ground line. Each end of the ground line is attached to a blivet, a cement block that keeps the trawl in place. A rope extends from the top of each blivet to a high flier, a floatable device that consists of ring floats, an aluminum pole and a flag, and which is often marked with radar reflectors. The high fliers mark the location of the lobster traps below.

The COURTNEY ELIZABETH regularly tended to these lobster traps, but between May 13, 1992 and June 7, 1992, she was ashore undergoing repairs. From May 19 to May 23, another vessel hauled and reset the traps. Upon returning to duty on June 7, the crew of the COURTNEY ELIZABETH discovered that 1,093 traps and related equipment were missing. Subsequently, CEH brought this action against defendants, alleging that during two trips between May 23 and June 7, the SEAFARER dragged through CEH's trawls and destroyed 671 traps. ¹

The SEAFARER is a trawler that drags for fish by way of a net extending beyond its stern. During May and June, 1992, the SEAFARER was dragging for monkfish, a fish found near the ocean floor, often in close proximity to high concentrations of lobster. The shared migrations of these species typically cause an overlap in the operating areas of draggers and lobstermen, causing tensions between the two groups. The close quarters result in inevitable gear conflicts, with trawlers often hauling up lobster traps unintentionally. Trawlers generally dispose of damaged, destroyed or abandoned traps ("ghost gear"), but customarily return working traps ("fixed gear") to their owner.

During her first trip, May 23 to May 24, the SEAFARER operated under the direction of Captain Roger Smith, with Charles Niles serving as mate. On May 24, the captain of another lobstering vessel observed the SEAFARER in the area of several of the COURTNEY ELIZABETH's trawls, and, through his wife, informed Timothy Handrigan, the vice-president of CEH, that his lobster trawls were at risk. The next day, Handrigan called Niles in order to advise Niles of the location of his gear. Niles responded that he did not need this information.

Niles captained the second trip of the SEAFARER, from May 28 through June 7, 1992. Also on board were John McKay (mate), and deckhands Phien Hoang, Niles Pearsall and Richard Baker. Except for Baker, who was Captain Niles' nephew, all crewmembers regularly worked on the SEAFARER. On May 29, Captain Robert Buffinton of the F/V EDNA MAE observed the SEAFARER near fixed gear of the COURTNEY ELIZABETH. Upon approaching the SEAFARER, he observed 20 unidentifiable lobster traps on board its deck.

Over the next few days, the SEAFARER hauled up and discarded approximately 200 traps, about 140 of which constituted fixed gear. In addition, the crew cut loose trawl lines that became entangled in the nets of the vessel. In total, the SEAFARER destroyed 134 of CEH's traps.

CEH commenced this action against the ship's owner, Doyle, and the two captains, Niles and Smith, in personam, and the SEAFARER in rem, pursuant to the district court's maritime jurisdiction. See 28 U.S.C. Sec. 1333; Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972). CEH sought compensatory damages for negligence, and punitive damages for the willful destruction of its property. Following a bench trial, the court absolved Captain Smith of all liability, but found Niles and the vessel at fault for destroying plaintiff's gear. The court further found that Niles acted in reckless disregard of CEH's property rights by towing through its fixed gear, and that he acted intentionally and maliciously in ordering his crew to cut trawl lines. The court awarded CEH compensatory damages in the amount of $6,759.81 jointly and severally against all parties, punitive damages against Captain Niles in the amount of $10,000, and punitive damages against Michael Doyle in the amount of $50,000.

Defendants attack the legal and factual bases of the court's award. We address these issues seriatim.

II. SUFFICIENCY OF THE EVIDENCE

To establish liability for negligence under general maritime law, CEH needed to prove by a preponderance of the evidence that the SEAFARER destroyed CEH's traps, and that such destruction could have been reasonably avoided. 1st Bank Southeast of Kenosha, Wis. v. M/V Kalidas, 670 F.Supp. 1421, 1431 (E.D.Wis.1987); see Burgess v. M/V Tamano, 564 F.2d 964, 977 (1st Cir.1977).

Defendants' core argument is that the evidence fails to demonstrate that the SEAFARER destroyed any of CEH's traps. We review this factual issue in accordance with the "clearly erroneous" standard of Fed.R.Civ.P. 52(a). DiMillo v. Sheepscot Pilots, Inc., 870 F.2d 746, 749 (1st Cir.1989). Unless, after examining the record and according due deference to the trial court, we form a "strong unyielding belief that a mistake has been made," we will adopt the court's findings. Juno SRL v. S/V Endeavour, 58 F.3d 1, 4 (1st Cir.1995).

The district court determined that the SEAFARER destroyed 134 of CEH's traps and related gear through the following specific findings: the SEAFARER dragged through Trawl 114 (50 wire traps) on May 31, and Trawls 16 (50 wire traps) and 60 (34 A-frame wooden pots) on June 1, 1992. In arriving at these findings, the district court relied on a wealth of circumstantial evidence, all of which is set forth in the district court's opinion, and need not be repeated here in entirety. After scrutinizing this evidence, we conclude that the inferences drawn by the district court were plausible. As such, we affirm the court's findings. Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152 (1st Cir.1990) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) ("If the district court's account of the evidence is plausible in light of the record reviewed in its entirety, the court of appeals may not reverse it even though convinced that had it had been sitting as the trier of fact, it would have weighed the evidence differently.")).

In light of the factual complexity of this case, we will discuss in some detail the key evidence that supports the court's findings. The court relied primarily on the testimony of crewman Baker, and on a comparison of the logbooks of the SEAFARER and the COURTNEY ELIZABETH.

Baker testified that during the trip: 1) the SEAFARER often operated within 50 to 100 yards of high fliers; 2) a high flier belonging to CEH was towed behind the boat; 3) about 200 traps were brought on deck of the SEAFARER and dumped overboard; 4) approximately 140 of these traps were reusable, and roughly 115 of these belonged to the COURTNEY ELIZABETH; and 5) Baker and other crewmembers regularly cut trawl lines that hung up on the doors of the net. Baker also asserted that after the trip, Charles Niles phoned him in an effort to induce Baker to alter his recollection of the trip.

Baker's testimony, taken alone, permits a reasonable inference that the SEAFARER destroyed a number of CEH's traps. In response, defendants argue that each of Baker's assertions is in conflict with the testimony of the other crewmembers and Captain Niles. The district court, however, was within its prerogative to find Baker "wholly credible" while disbelieving the other witnesses. See Rivera-Gomez v. de Castro, 900 F.2d 1, 4 (1st Cir.1990).

To pinpoint the dates on which specific trawls were destroyed, the court used the log books of both vessels to plot the course of the SEAFARER against the position of the COURTNEY ELIZABETH's lobster trawls. The court determined that the SEAFARER's path intersected the groundlines of the three trawls on May 31 and June 1.

Defendants contend that inherent inaccuracies in the Loran system and rounding errors in the log books render a comparison of the logs misleading. Their expert, Thomas Bushy, testified that the cumulative effect of all possible errors could cause two separately recorded identical readings to be up to 1.6 nautical miles apart. Nevertheless, on cross examination, Bushy admitted that this figure was the absolute worst case scenario; that, in fact, he did not know whether either vessel's system contained correction factors that would have reduced possible error; and that the locations of the tows and the trawls could have been much closer together. Upon examining the whole of Bushy's testimony, we find no error in the court's plotting of Loran coordinates to...