DiMillo v. Sheepscot Pilots, Inc.

• Decision Date: 08 February 1989
• Docket Number: No. 88-1418,88-1418
• Citation: 870 F.2d 746
• Parties: Antonio DiMILLO, Plaintiff, Appellee, v. SHEEPSCOT PILOTS, INC., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 746

870 F.2d 746

1993 A.M.C. 2699

Antonio DiMILLO, Plaintiff, Appellee, v. SHEEPSCOT PILOTS, INC., Defendant, Appellant.

No. 88-1418.

United States Court of Appeals First Circuit.

Heard Feb. 8, 1989.

Decided March 15, 1989.

Thomas E. Clinton with whom Robert E. Collins and Clinton & Muzyka, P.C., Boston, Mass., were on brief, for defendant, appellant.

Harold J. Friedman with whom John G. Connor and Friedman & Babcock, Portland, Me., were on brief, for plaintiff, appellee.

Before BREYER, ALDRICH and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Like Aeschylus' much-persecuted hero, defendant-appellant Sheepscot Pilots, Inc. (SPI) bemoans the tempest and proclaims itself wronged. But as Zeus rejected the appeals of the chained Prometheus, we must deny SPI relief save only in a single small respect.

I

By consent, this case was tried to a magistrate, sitting without a jury. See 28 U.S.C. Sec. 636(c). The findings of fact contained in the ensuing rescript, DiMillo v. SPI, No. 86-0241P (D.Me. Dec. 1, 1987), aptly elucidate the contours of the litigation. We summarize them succinctly.

Plaintiff-appellee Antonio DiMillo was an entrepreneur with a nautical bent. He ran a thriving seafood restaurant from a converted ferry anchored in Portland harbor. He wanted to operate a floating hotel as well, and hit upon the idea of converting a barge to that end. Suitable candidates were in short supply. Eventually, DiMillo found the barge of his dreams (the Greenwood), but there was a hitch: she was in Detroit.

As the record verifies, DiMillo was nothing if not resourceful. At substantial cost, he arranged a split tow: a midwestern firm would tow the barge from Detroit to Montreal; SPI would then tow it from Montreal to Portland. The first part of the odyssey went like clockwork. The Greenwood arrived in Montreal shipshape. Defendant's captain, David Winslow, met the barge with a tug and a crew of five on October 12, 1985. They inspected the Greenwood and found everything to be in order. The second phase of the operation then began. The tug and its charge proceeded without untoward incident down the St. Lawrence River, through the gulf, and into the strait separating Nova Scotia from Cape Breton Island. Early in the morning of October 15, a Tuesday, the party arrived in Port Hawkesbury.

At this point, the evidence diverges. The magistrate found, supportably, that the official weather advisory broadcast that morning was as follows:

Winds light increasing to southeast 15 knots late this morning and to southeast 15 to 25 this evening. Winds veering to southwesterly 20 to 30 Wednesday morning and to westerly 15 to 25 Wednesday afternoon.

Mag Op. at 6. Notwithstanding his own admission that he would not have proceeded if the forecast was for winds from the south, southeast, or southwest up to 25 knots, and his first mate's expression of concern, Winslow ordered the flotilla to leave port shortly after 10 a.m. on October 15.

The weather proved consistent with the forecast. As it worsened, the captain stubbornly continued. Seas reached 17 to 20 feet, with winds in excess of 30 knots. The barge took a brutal pounding in the heavy seas. At about 2 a.m. on October 16, the captain belatedly bowed to the inevitability of nature and headed back to Port Hawkesbury, arriving there at 10:30 a.m.

The rest is history, mostly undisputed. The voyage was resumed in calmer seas late on the afternoon of October 17. Two days later, off Cape Sable, the frontmost rake section collapsed, leaving a gaping hole in the barge's bow. ¹ By jury-rigging, the tug was able to complete the tow. The Greenwood arrived in Portland on October 20, stern first and badly damaged.

DiMillo was not pleased. He eventually sued SPI in federal district court. After trial, the magistrate determined the tug's master to have been negligent in taking the barge into rough weather and abysmal sea conditions on October 15, and persisting in the folly. He went on to find the negligence to have caused the structural damage that led to the rake's disintegration. The magistrate awarded damages "limited to the cost of repairing the barge" in the sum of $175,000, plus prejudgment interest. SPI moved unsuccessfully for reconsideration of the verdict, and now appeals.

II

In a mode reminiscent of Prometheus' squirming as eagles circled above, appellant leaves no stone unturned in attempting to wriggle out of its predicament. For simplicity's sake, we consolidate SPI's myriad challenges into four overall lines of argument, and consider them seriatim.

A. Negligence.

In what amounts to a quintessential play on words, defendant admits the impregnability of the finding that Winslow "should not have proceeded in the light of the weather forecast and [should have] turned the flotilla around earlier," Appellant's Brief at 29, yet strongly denies that this conduct was actionably negligent. Id. That is so, appellant tells us, because poor seamanship is suable only if the master's fault is "gross and flagrant." Id. (quoting The Imoan, 67 F.2d 603, 605 (2d Cir.1933)). The proposition is founded on a myth.

A ship's master has considerable discretion, but it is not unbridled. Reasonable prudence is reasonably to be expected. The master of a tug is required to exercise "reasonable care and maritime skill" with respect to the vessel in tow. Stevens v. The White City, 285 U.S. 195, 202, 52 S.Ct. 347, 350, 76 L.Ed. 699 (1932); The Eastern, 280 F. 711, 713 (2d Cir.1922). That is to say, notwithstanding the captain's discretion, an action will lie if he "ma[kes] a decision which nautical experience and good seamanship would condemn as inexpedient and unjustifiable at the time and under the circumstances." The Lizzie D. Shaw, 47 F.2d 820, 822 (3d Cir.1931); see also Massman Construction Co. v. Sioux City & New Orleans Barge Lines, Inc., 462 F.Supp. 1362, 1366 (W.D.Mo.1979). Among other things, the master has a clear duty to monitor and take into account weather conditions. See, e.g., Boudoin v. J. Ray McDermott & Co., 281 F.2d 81, 84-86 (5th Cir.1960); Graham v. Milky Way Barges, Inc., 590 F.Supp. 721, 728 (E.D.La.1984), rev'd in part on other grounds, 824 F.2d 376 (5th Cir.1987).

The appropriate standard of care was obviously transgressed here. Winslow departed port in utter disregard of an aposematic forecast, and then stayed overlong in worsening seas before turning back. In our view, this was negligence of a rather egregious sort. See McDermott, 281 F.2d at 84 ("it is the nature of the calling of the shipmaster to know of the tempestuous forces of wind and tide and sea").

Appellant's reliance on The Imoan for a more permissive standard is misplaced. To be sure, the opinion contains the bald statement that "error to become fault must be gross and flagrant." 67 F.2d at 605. Yet that comment cannot serve defendant's ends for three separate reasons. First, the language is pure dicta. Second, The Imoan trails in the wake of over half a century of more modern caselaw, virtually all of it stipulating that the master's duty, in the Court's phrase, is one of exercising "reasonable care and maritime skill," Stevens, 285 U.S. at 202, 52 S.Ct. at 350, consistent with knowledge and circumstance. Lastly, The Imoan is distinguishable on the facts. There, the captain was suddenly confronted with unanticipated emergency conditions, not of his own contrivance. See 67 F.2d at 604 ("When the tug left [port] there were no indications of dangerous weather known to her.") That is far different from the matter at bar, where Winslow cavalierly decided to brave forecasted conditions, thereby imperilling the flotilla. The true lesson of The Imoan is that, when an unforeseen emergency arises, the master's response is actionable if it falls "outside the range of possible discretion." Id. at 605. The case before us, however, is not one where criticism is to be tempered because the master was acting in extremis. See Capt'n Mark v. Sea Fever Corp., 692 F.2d 163, 168 n. 3 (1st Cir.1982) (in extremis doctrine applies when party claiming its protection was free from fault until emergency arose); Bucolo, Inc. v. S/V Jaguar, 428 F.2d 394, 396 (1st Cir.1970) (same). Winslow acted in response not to a sudden emergency but a predicted one, placing his convoy in readily foreseeable jeopardy, heedless of recognizable risks. His recklessness was so alien to prudent seamanship that it exceeded the boundaries of proper discretion by a wide margin.

We apply the Stevens standard here. Scrutinized in that light, the law and the evidence emphatically support the magistrate's finding that Winslow was negligent in taking the craft into seas much too heavy, and stubbornly keeping her there much too long.

B. Causation.

SPI's principal fallback position is that Winslow's conduct, even if negligent, did not cause the structural damage to the rake. Our assessment of this point begins--and ends--with the scope of review. In the usual case, questions of causation (including those which involve evaluative applications of legal norms to discerned facts) are for the trier. As we recently noted:

Application of the legal cause standard to the circumstances of a particular case is a function ordinarily performed by, and peculiarly within the competence of, the factfinder.

Swift v. United States, 866 F.2d 507, 510 (1st Cir.1989); see also Springer v. Seamen, 821 F.2d 871, 876 (1st Cir.1987). In maritime cases, we review factbound findings stemming from a bench trial in accordance with the "clearly erroneous" principle of Fed.R.Civ.P. 52(a). See McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7, 99 L.Ed. 20 (1954); Clauson v. Smith, 823 F.2d 660, 661 (1st Cir.1987); Boudoin, 281 F.2d at 82. Doing so reveals without serious question that the magistrate's adjudication of proximate cause stayed well on course.

Having explored every nook and cranny of the record, we abjure a lengthy exegesis. It suffices, we suggest, to observe that...