Curcuru v. Rose's Oil Service, Inc.

• Decision Date: 25 April 2006
• Docket Number: No. 04-P-1364.,04-P-1364.
• Citation: 66 Mass. App. Ct. 200,846 N.E.2d 401
• Court: Appeals Court of Massachusetts
• Parties: Donna CURCURU<SMALL><SUP>1</SUP></SMALL> v. ROSE'S OIL SERVICE, INC. (and four companion cases<SMALL><SUP>2</SUP></SMALL>).

846 N.E.2d 401

66 Mass. App. Ct. 200

Donna CURCURU¹ v. ROSE'S OIL SERVICE, INC. (and four companion cases²).

No. 04-P-1364.

Appeals Court of Massachusetts, Suffolk.

Argued January 9, 2006.

Decided April 25, 2006.

COPYRIGHT MATERIAL OMITTED

Thomas E. Clinton, Boston (Robert E. Collins with him) for the defendant.

Joseph G. Abromovitz, Dedham, for Donna Curcuru & another.

Stephen M. Ouellette, Beverly, & Brian S. McCormick, for Vera Curcuru & another, were present but did not argue.

Present: LAURENCE, SMITH, & TRAINOR, JJ.

SMITH, J.

The F/V Italian Gold, a fishing vessel out of Gloucester, sank during a gale in the Atlantic Ocean on September 5, 1994. The four crew members were lost. The surviving spouses, both individually and as administratrices of their respective husbands' estates (collectively, the estates), and the shipowner, Uncle Sam of '76, Inc. (Uncle Sam), sued Rose's Oil Service, Inc. (Rose's Oil), the shipyard that performed repairs on the vessel in the months preceding the Italian Gold's last voyage. The cases were tried to a jury, which returned verdicts in favor of the plaintiffs. Rose's Oil appealed.³

1. Procedural history. The estates filed their respective complaints in Superior Court in 1996 and 1997, alleging negligence against Rose's Oil under the Death on the High Seas Act (DOHSA), 46 U.S.C.App. §§ 761 et seq. (2000),⁴ and general maritime law. Uncle Sam sued Rose's Oil in Superior Court for negligence, breach of the implied warranty of workmanlike service, and violation of G.L. c. 93A. The five actions were consolidated.

Uncle Sam also initiated a limitation of liability proceeding, a complaint in admiralty pursuant to 46 U.S.C.App. § 185 (2000), in the United States District Court for the District of Massachusetts.⁵ The estates settled with Uncle Sam in that action, reportedly for the limits of Uncle Sam's liability insurance coverage. Because the settlement fund was insufficient to compensate the four estates to the full extent of their damages, the Federal District Court judge ordered an equitable allocation of the available funds among the four estates, taking into account the survivors' respective pecuniary losses, as well as the pain and suffering of the decedents before their deaths. See In re Complaint of Uncle Sam of '76, Inc., 928 F.Supp. 64 (D.Mass.1996).

In the Superior Court actions against Rose's Oil, the estates and the shipowner essentially claimed that Rose's Oil negligently repaired the ship's propeller and stern tube stuffing box, resulting in excessive leaking that flooded the ship's fish hold when the ship encountered rough seas and that caused the vessel to capsize and sink. Rose's Oil blamed the ship's flooding and sinking on the weather conditions, positing that wave action damaged the hull and that a forty-foot wave hit the pilot house, knocking out the windows and door and causing the crew quarters and other areas below to flood.

Before trial, Rose's Oil challenged the estates' rights to a jury trial on their DOHSA claims. The judge ruled against the estates on the issue, but in the interest of judicial economy, submitted the estates' claims to the jury for an advisory opinion. After a fifteen-day trial, including five days of deliberation, the jury found in favor of the estates and Uncle Sam, but found Uncle Sam fifty percent comparatively negligent. The judge then issued her own findings of fact and rulings of law on the estates' DOHSA claims, finding Rose's Oil negligent in its repairs to the stern tube stuffing box, but ruling in Rose's Oil's favor on the issue of causation.⁶ The estates appealed, separate and final judgments having been entered against them. In Curcuru v. Rose's Oil Serv., Inc., 441 Mass. 12, 20-21, 802 N.E.2d 1032 (2004), the Supreme Judicial Court held that the estates were entitled to a jury trial on their DOHSA claims, pursuant to the "savings clause" of 46 U.S.C.App. § 767 (2000). Judgments were then entered for the estates. Judgment for Uncle Sam was also entered, which included recovery against Rose's Oil for the value of the vessel and indemnification for amounts paid in settlement to the estates in the Federal limitation of liability action.

The trial judge had previously denied Rose's Oil's motion for judgments notwithstanding the verdict as to Uncle Sam, and following entry of judgments for the estates, the judge also denied Rose's Oil's motion for judgments notwithstanding the verdicts or for a new trial as to the estates. Regarding the fact that her own findings were at odds with the jury verdicts, the judge reiterated her respect for the "demonstrably conscientious and intelligent jurors" and concluded that reasonable minds could differ on the issue of what caused the crew's deaths.

Rose's Oil appealed from the judge's denial of its motion for judgments notwithstanding the verdicts and from the award to Uncle Sam for indemnification under the implied warranty of workmanlike service. Two of the estates cross-appealed⁷ from the judge's ruling that Rose's Oil was liable for only fifty percent of the estates' damages, rather than the full amounts of their damages minus the amounts of the settlements paid to them by Uncle Sam.

2. Facts. We summarize the facts as the jury could have found them. The Italian Gold was built in 1979 for fishing in the North Atlantic. The ship was constructed to withstand fifty-foot waves and sixty mile per hour winds, and the original owners installed approximately twenty-eight tons of concrete ballast in the lower portion of the ship to improve its stability and make the vessel more seaworthy. Uncle Sam purchased the Italian Gold in 1984.

In April, 1994, the Italian Gold lost its propeller at sea. On April 17, Frank Rose IV, of Rose's Oil, installed a replacement. The propeller on the Italian Gold was attached to a long shaft that extended through a shaft alley that ran below the ship's fish hold, and exited the shaft alley through a stuffing box into a stern tube, which went through and outside the ship's hull. By June, the vessel's stern tube stuffing box had started leaking, more than the normal drip needed for lubrication, and by late July, the leaking had escalated to a steady stream. One of the ship's captains, Robert MacDonald, who also served as the ship engineer, felt vibration coming from the area of the Italian Gold's propeller shaft when he was aboard the vessel for a fishing trip in late July. In the ten years Uncle Sam had owned the Italian Gold prior to replacement of the propeller, the ship had experienced no major problems and no problems with excessive leaking through the stern tube stuffing box.

On July 26, 1994, Rose's Oil undertook a second repair, this time to correct the excessive leaking from the stern tube stuffing box into the fish hold. Rose's Oil's mechanic, Bruce Figuerido, attempted to repair the leak by adding more packing to the existing packing material in the stuffing box. When he started the work, he discovered that he had brought the wrong size packing with him to the boat; five-eighths inch instead of the three-quarters inch packing that the Italian Gold's stuffing box required. Instead of retrieving the correct size packing from the shop, he hammered the five-eighths inch packing to flatten it, and inserted it into the stuffing box. He neglected to spin the shaft to seat the packing, as standard practice required. He then tightened the area so that no water was leaking around the shaft; however, this deprived the shaft of necessary lubrication.

According to the testimony of the estates' expert, William Eident, a marine engineer and professor from the Massachusetts Maritime Academy, Rose's Oil was negligent when it replaced the propeller in April, 1994, and failed at that time to check, with a dial indicator, whether the propeller shaft was bent. Both Eident and Frank Rose testified that the most likely explanation in these circumstances for the loss of Italian Gold's propeller, and the propeller nut that held it in place, was fishing gear entanglement. Rose testified that when he replaced the propeller, he checked the shaft rotation visually to ensure the shaft was not bent. But Eident testified that the degree of shaft irregularity need only be .00335 inches, or fingernail width, to cause the propeller to spin irregularly and cause the packing material in the stern tube stuffing box to wear out prematurely. As it turned out, by the end of June, the stern tube stuffing box had begun to leak.

Eident further testified that the repair performed by Rose's Oil on the stern tube stuffing box violated good maritime practice as well as the manufacturer's guidelines for installing the packing material. Eident testified that in addition to using the wrong size material, Rose's Oil should have completely removed the old packing material and replaced it with new material, rather than simply adding packing material. Eident opined that given the method by which Rose's Oil attempted to repair the stuffing box, the repairs would have failed within a matter of days. As it happened, shortly after the July 17 repairs, the Italian Gold's engineer found it necessary to add more packing to the stern tube stuffing box.

On August 30, 1994, the Italian Gold departed Gloucester on a fishing trip with four crew members aboard: Captain Nicholas Curcuru, engineer Peter Giovinco, and deck hands Manuel Carrapichosa and Salvatore Curcuru (no relation to the captain). Guiseppe DiMaio, Uncle Sam's president, spoke with the captain daily. Their last communication was on the afternoon of September 4, 1994, when DiMaio and the ship's captain and engineer discussed the forecast of a possible storm, and the decision was made to stop fishing and bring all gear onboard. By 6:00 A.M., on the morning of September 5, 1994, a gale⁸ was approaching at about sixty nautical miles to the south of the ship, and the highest waves in the area of the ship were averaging twenty to twenty-one...