Clifford v. M/V Islander, s. 83-1521

• Citation: 751 F.2d 1
• Decision Date: 18 December 1984
• Docket Number: Nos. 83-1521,83-1522,s. 83-1521
• Parties: Barry CLIFFORD, Plaintiff, Appellant, v. M/V ISLANDER, et al., Defendants, Appellees. Barry CLIFFORD, Plaintiff, Appellee, v. M/V ISLANDER, et al., Defendants, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1

751 F.2d 1

1985 A.M.C. 1855

Barry CLIFFORD, Plaintiff, Appellant, v. M/V ISLANDER, et al., Defendants, Appellees.

Barry CLIFFORD, Plaintiff, Appellee, v. M/V ISLANDER, et al., Defendants, Appellants.

Nos. 83-1521, 83-1522.

United States Court of Appeals, First Circuit.

Argued Oct. 1, 1984.

Decided Dec. 18, 1984.

Robert S. Wolfe, Boston, Mass., with whom Wolfe Associates, Boston, Mass., was on brief for Barry Clifford.

Frank H. Handy, Jr., Boston, Mass., with whom Kneeland, Kydd & Handy, Boston, Mass., was on brief for M/V Islander, et al.

Before COFFIN, Circuit Judge, TIMBERS, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

COFFIN, Circuit Judge.

The question posed by this case is under what theory, and to what extent, plaintiff Barry Clifford should be compensated for his assistance in making temporary repairs to the M/V ISLANDER (the ISLANDER), a ferry owned and operated by defendant Steamship Authority (the SSA), after the bottom of her hull was holed while leaving Martha's Vineyard. The district court found that Clifford's efforts did not constitute an act of pure salvage and were not performed pursuant to a salvage contract. The court determined instead that Clifford had entered into an oral maritime contract with the SSA under which he was owed $150,000 for his services. On appeal, Clifford challenges the district court's conclusion that there was no act of pure salvage, seeks a higher damages award, and requests an award of prejudgment interest and attorney's fees. On cross-appeal the SSA challenges the award of $150,000 in damages, arguing that Clifford's services could not be worth more than a few thousand dollars. For the reasons discussed below, we affirm the district court's, 565 F.Supp. 922, judgment except with respect to the amount of damages.

BACKGROUND

The following summary of facts, many of which were stipulated to by the parties, is drawn from the findings made by the district court after the conclusion of an eight-day, non-jury trial.

The ISLANDER is a double-ended ferry, which means it has a propeller and a rudder at both ends. Under normal conditions, the ISLANDER's draft at the bow is 10'3" and at the stern 9'11". On the day it was holed, March 19, 1980, it was operating between Woods Hole at the southwestern end of Cape Cod and the nearby island of Martha's Vineyard. Although at the latter destination the ISLANDER usually docked at the Vineyard Haven terminal in the winter months, including March, that terminal was undergoing repairs on March 19, and the ISLANDER was therefore using the Oak Bluffs terminal, which was more exposed to winter storms from the open ocean to the east.

At 9:20 a.m. on March 19, the ISLANDER struck an underwater rock just minutes after leaving the Oak Bluffs terminal. Water flooded into its Number Two and Three compartments, toward the bow, and began leaking at a much slower rate into the engine room. Unsure of the extent of the damage, the captain turned the ISLANDER back toward the Oak Bluffs terminal and radioed the ticket agent for assistance.

At approximately 9:40 a.m., when the ISLANDER reached the terminal, its bow was already approximately two feet lower in the water than usual and its stern an equivalent amount higher in the water. Consequently, the rudder and propeller in the stern were exposed at least partially and the vessel had lost much of its ability to be steered from that end. It crashed into the outer end of the terminal's slip, fracturing more than twenty pilings.

Ultimately, the vessel was secured and a special ramp was constructed because it was lying lower in the water than usual. The 130 passengers, 45 cars, and five of Even before the ramp was built, fire trucks had arrived and begun to pump water from the flooded compartments. Although the fire trucks' pumps and those of the ship were unable to reduce the level of the water in the compartments, there was no increase in the water level and the ISLANDER was in no danger of sinking.

the six trucks that were onboard were then unloaded. At the time, the Captain believed that there was approximately a foot of water between the keel of the boat and the bottom of the slip.

The captain decided not to move the vessel until temporary repairs were made. Although at least two private citizens appeared and volunteered to dive and try to locate and block all the holes, the first diver whom the SSA called for assistance was Mr. Wayne Iacono. When he arrived at approximately 11:00 a.m., he was asked to suit up by Mr. Harold Brackett, the SSA's maintenance and construction manager, and told that the SSA could use all the help that it could get. Not long thereafter, Mr. Stephen Broderick, an assistant SSA engineer, took command of the diving process when he noticed that the first individuals to dive were getting tired. Broderick instructed Iacono to go ahead and dive and to send the bill for his services to the SSA.

Shortly thereafter, plaintiff Clifford appeared on the scene. His wife had received a call from the SSA requesting Clifford's assistance. She had phoned him at work and conveyed the message that he was to go to the terminal with his equipment. He immediately returned home for his diving equipment and drove to the terminal. His gear was considered the most advanced available, and his reading and experience with respect to diving and salvaging were extensive. The evidence in the record indicates that he was in extraordinarily good physical condition, that he had been on a number of successful salvage and treasure hunting expeditions, and that he was probably the most skilled diver on Martha's Vineyard. As the district court summed up the matter, "Clifford's experience as a diver and salvor was unique."

When he arrived, he first met Broderick and Chief Engineer Thomas Cunniff and volunteered his services. He was taken to Mr. Brackett, who was identified as being in charge of the operation. A conversation ensued, which was joined by Mr. Ronald Eastman, the Assistant General Manager of the SSA, and Mr. William Marks, a local official from Martha's Vineyard and acquaintance of Clifford. When Clifford asked about the ISLANDER, the SSA officials were able to give him a description of the vessel but not an exact description of the damage. Nor were the amateur divers able to tell him much more than the rough location of the holes and that efforts to block the holes with traffic cones had failed. Clifford indicated that he would survey the vessel's bottom and then recommend repairs.

He dove into the water at approximately noon and proceeded to assess the damage. The visibility in the water was poor because of the presence of silt, the water temperature was only thirty-five degrees Fahrenheit, the currents were moderately strong, and the keel of the vessel was not far from the bottom of the slip. These rather difficult and risky conditions were to prevail throughout the period of his services.

Also found by the district court, but not stipulated to by the parties, were the following additional facts. Steven Broderick hired Clifford as a diver to aid in the repair of the vessel, and Clifford was informed that he was being hired on a daily basis and that he should submit a bill to the Steamship Authority. Whether this agreement was struck before or after Clifford performed his initial survey is not stated by the district court, but the evidence suggests that it was struck beforehand.

The district court also found that Clifford drew up the four-phase plan of repair that was eventually successfully executed. In the first phase divers were to place a tarpaulin under the holed section of the boat, which would be tied and kept in place The district court further found that after Clifford presented this plan to SSA officials, it was adopted. Clifford and others under the direction of Eastman, Brackett, and Broderick then implemented the plan. While there is no question that SSA personnel, as well as other professional divers who appeared on the evening of March 19, played a major part in carrying out the plan, it is also clear that Clifford was a, if not the, key actor during the first three phases of the operation. He took on tasks that others were unable or unwilling to undertake and performed them successfully. He apparently suffered an injury to his ear and considerable fatigue and dizziness as the operation proceeded through the afternoon and evening of March 19 and the morning of March 20.

by four ropes and by the force of the water outside as the water inside was pumped out. The second phase required the placement of small wooden patches on the outside of the tarp-covered holes. This would take multiple dives, always with one diver outside and one inside to secure each patch with a rope that was punched through the patch and the tarp. During the third phase plywood patches would be applied over the holes on the inside of the vessel and secured by ramming four by four wooden beams between the patches and the compartment walls. In the final phase, steel plates were to be welded to the inside of the vessel. Each of the first three phases presented significant risk of injury to the divers.

Throughout these two days the weather was good and presented no problems. The repairs were completed on March 20, and the vessel departed at 12:50 a.m. on March 21. It went first to Woods Hole and then to Boston for permanent repairs. It reached Woods Hole, which lies approximately five miles away, in less than an hour and Boston by 10:15 a.m. The trip was uneventful and the temporary repairs thus completely successful.

The ISLANDER was valued at $2,500,000 at the time that it left for Woods Hole. The permanent repairs made at Boston cost $450,000.

On the basis of these facts the district court concluded first that Clifford had not undertaken an act of pure salvage. In particular, the court noted that the essential element of "marine peril" had not been proven, there being neither...