Concordia Co., Inc. v. Panek

• Decision Date: 10 April 1997
• Docket Number: No. 96-1798,96-1798
• Citation: 115 F.3d 67
• Parties: , 37 Fed.R.Serv.3d 1079 CONCORDIA COMPANY, INC., Plaintiff-Appellee, v. Anthony PANEK, Defendant-Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 67

115 F.3d 67

1997 A.M.C. 2357, 37 Fed.R.Serv.3d 1079

CONCORDIA COMPANY, INC., Plaintiff-Appellee, v. Anthony PANEK, Defendant-Appellant.

No. 96-1798.

United States Court of Appeals, First Circuit.

Heard April 10, 1997.

Decided June 4, 1997.

Richard H. Gens, Centerville, MA, with whom Lawrence M. Perlmutter, Boston, MA, was on brief, for appellant.

Stephen C. Fulton, Natick, MA, with whom Law Office of Bruce R. Fox, Boston, MA, was on brief, for appellee.

Before TORRUELLA, Chief Judge, SELYA, Circuit Judge, and SARIS, ^* District Judge.

SARIS, District Judge.

This case began with a bang. In the early morning hours of March 29, 1993, Gerald Chapman, the night watchman at Concordia Company's boat yard in South Dartmouth, Massachusetts, awoke to the sound of an explosion. The PROWLER, a pleasure boat owned by Anthony Panek and moored at the boat yard, burst into flames. Although fire fighters arrived in only a few minutes, by the time they extinguished the blaze the PROWLER was still afloat but burned almost to its gunnels. However, by morning the PROWLER had sunk beneath the briny waters of Apponagansett Bay, leaving an oil slick in its wake.

A lawsuit ensued. Concordia filed a complaint alleging a single count in admiralty for its costs of cleaning up the oil and hauling the remains of the PROWLER out of the Bay. Panek counterclaimed for the damage done to his boat, alleging causes of action for breach of contract, negligence, misrepresentation, and a violation of Chapter 93A of the Massachusetts General Laws. Panek alleged generally that Concordia did not fulfill its promise to provide adequate security at the boat yard and that the lack of security caused the fire. Panek also alleged that Concordia should have prevented the PROWLER from sinking by adequately securing it to the dock while it was still afloat.

The case was tried to the district court with an advisory jury. The district court found for Concordia on its admiralty claim for all of its clean up and hauling costs. However, it also found for Panek on his claims that Concordia was negligent and breached its contractual duty to secure the boat by failing to remove the hull of the boat from the water when it was still floating. The Court awarded damages to Panek for all of the clean up and half the hauling costs, which resulted in an offset judgment for Concordia for half of its hauling costs. On appeal, Panek argues that the district court erred by denying his request for a jury trial on his common law counterclaims. We affirm.

I. PROCEDURAL BACKGROUND

Concordia's complaint included a single admiralty count, was captioned "In Admiralty", and stated it was within the court's admiralty and maritime jurisdiction as set forth in Fed.R.Civ.P. 9(h). Plaintiff made no demand for a jury trial. Panek's pleading containing the Answer and Counterclaims was similarly captioned "In Admiralty" with no other basis of jurisdiction stated and no jury demand made. This pleading contained no mention of Fed.R.Civ.P. 9(h). However, in its answer to the counterclaims, Concordia made a jury demand, which it later withdrew. Before trial, Panek moved to bifurcate his common law counterclaims from the complaint to allow the former to be tried by jury. He mistakenly based his motion on a previous request for a jury trial, which was never made, at least in writing. The district court denied this motion.

After the close of evidence at trial, the district court judge ruled that there was insufficient evidence to warrant a finding on the negligence count and submitted the breach of contract and misrepresentation counts to the advisory jury. The jury returned a verdict finding that Concordia was not liable for misrepresentation but that it was liable to Panek for the breach of contract count in the amount of $16,000--the total amount of damage done to the PROWLER. The district court declined to adopt the advisory jury's verdict on the breach of contract counterclaim, entering its own bench judgment on all the claims as follows: Concordia was not liable for misrepresentation or violating Chapter 93A; Panek was liable for the admiralty claim for $4,560.35; and Concordia was liable for negligence and breach of contract for $3,938.50--the cost of the clean up and half the hauling. The Court acknowledged it was "reversing" its earlier determination that there was insufficient evidence on the negligence claim with respect to Concordia's failure to prevent the PROWLER from sinking. After offsetting the two judgments, Panek was held liable for $621.85 plus statutory interest.

II. STANDARDS OF REVIEW

The primary dispute on appeal is whether the district court erred by failing to submit Panek's common law claims to a non-advisory jury. Panek argues that he retained his right to a jury on his common law claims under the "saving to suitors" clause of 28 U.S.C. § 1333(1). ¹ We review claimed errors of law de novo. Windsor Mount Joy Mut. Ins. Co. v. Giragosian, 57 F.3d 50, 53 (1st Cir.1995) (citing Williams v. Poulos, 11 F.3d 271, 278 (1st Cir.1993); Blanchard v. Peerless Ins. Co., 958 F.2d 483, 487 (1st Cir.1992)). Panek also challenges the district court's calculation of damages. "The district court's findings of fact, however, will not be set aside unless they are demonstrated to be clearly erroneous." Id. at 53 (citing Williams, 11 F.3d at 278; Fed.R.Civ.P. 52(a)).

III. DISCUSSION

A. The Claimed Right to a Jury

The first issue the Court considers is whether the counterclaimant waived any right to a jury he may have retained by designating his counterclaim as "In Admiralty" with no jury demand.

If this suit had involved only non-admiralty claims, Panek would have had a right to a jury trial on his common law claims. Fed.R.Civ.P. 38(a) provides that "[t]he right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate." Any party can preserve its right to a jury by making a timely demand for a jury trial, Fed.R.Civ.P. 38(b), and once the demand is made, both parties must consent before it can be withdrawn, Fed.R.Civ.P. 38(d), 39(a). See Dell'Orfano v. Romano, 962 F.2d 199, 202 (2d Cir.1992) ("A plaintiff is entitled to rely on a defendant's jury demand to preserve his own right to a jury trial....").

When claims which could be characterized as either admiralty or common law claims are raised in a case, a party's right to a jury trial becomes more complex. Cf. Fed.R.Civ.P. 38(e) (providing that "[t]hese rules shall not be construed to create a right to trial by jury of the issues in an admiralty or maritime claim within the meaning of Rule 9(h)"). Generally, there is no constitutional right to jury trial for admiralty claims. See Fitzgerald v. United States Lines Co., 374 U.S. 16, 19, 83 S.Ct. 1646, 1649, 10 L.Ed.2d 720 (1963). Congress has, however, created a statutory right to a jury trial for certain admiralty claims. See, e.g., 28 U.S.C. § 1873 (1994) (Great Lakes Act); 46 U.S.C.App. § 688 (1988) (Jones Act). In addition, the Supreme Court has held that plaintiffs who assert both a Jones Act claim, which creates a statutory right to a jury trial on the law side of the court, and closely related admiralty claims for unseaworthiness and maintenance and cure are entitled to a jury trial on both kinds of claims. Fitzgerald, 374 U.S. at 21, 83 S.Ct. at 1650 (holding that "only one trier of fact should be used for the trial of what is essentially one lawsuit to settle one claim split conceptually into separate parts because of historical developments"); see also Charles Alan Wright & Arthur R. Miller, 9 Federal Practice and Procedure § 2315 (1995).

When a claim sounds both in admiralty and in common law, a plaintiff can preserve his right to a jury by following certain procedures. Pursuant to the so-called "saving to suitors" clause, 28 U.S.C. § 1333(1), the federal district courts have "original jurisdiction, exclusive of the courts of the states," over admiralty and maritime cases, saving to suitors in all cases all other remedies to which they are otherwise entitled. Lewis v. United States, 812 F.Supp. 620, 626 (E.D.Va.1993). Interpreting the "saving to suitors" clause to reserve to plaintiffs the right to a common law remedy "in all cases where the common law is competent to give it," the Supreme Court held that "the common law is as competent as the admiralty to give a remedy in all cases where the suit is in personam against the owner of the property." Leon v. Galceran, 78 U.S. (11 Wall.) 185, 191, 20 L.Ed. 74 (1870). This statute permits plaintiffs to retain a right to a jury for "saving-clause claims" ²--those admiralty claims that could have also been tried to a jury at common law--by either bringing suit in state court or in the general jurisdiction of federal court. See generally Odeco Oil & Gas Co., Drilling Division v. Bonnette, 74 F.3d 671, 674 (5th Cir.1996) ("The saving to suitors clause evinces a preference for jury trials and common law remedies in the forum of the claimant's choice."). Consequently, a plaintiff's saving-clause decision determines whether the judge or a jury will act as fact-finder for saving-clause claims.

Where claims are cognizable either in admiralty or in a nonmaritime ground of federal jurisdiction, Rule 9(h) sets forth the procedure by which a plaintiff indicates his choice to proceed in admiralty for a saving-clause claim in federal court. Fed.R.Civ.P. 9 advisory committee note; see generally Woodhouse, supra, at 79 (noting that after the unification of admiralty and civil procedure rules in 1966, the "saving clause option to choose whether to proceed in admiralty or diversity has been retained in Rule 9(h), which permits the suitor to identify his claim as an admiralty claim in order to have admiralty procedures applied"). Rule 9(h) provides in pertinent part:

A pleading or count setting forth a claim for relief within...