South Port Marine, LLC v. Gulf Oil Limited, CIV. 98-20-P-H.

• Decision Date: 26 July 1999
• Docket Number: No. CIV. 98-20-P-H.,CIV. 98-20-P-H.
• Parties: SOUTH PORT MARINE, LLC, Plaintiff, v. GULF OIL LIMITED PARTNERSHIP and BOSTON TOWING & TRANSPORTATION COMPANY, L.P., Defendants.
• Court: U.S. District Court — District of Maine

56 F.Supp.2d 104

SOUTH PORT MARINE, LLC, Plaintiff, v. GULF OIL LIMITED PARTNERSHIP and BOSTON TOWING & TRANSPORTATION COMPANY, L.P., Defendants.

No. CIV. 98-20-P-H.

United States District Court, D. Maine.

July 26, 1999.

Daniel G. Lilley, Daniel G. Lilley Law Offices, David J. Perkins, Perkins, Olson & Pratt, Portland, ME, for Plaintiff.

William H. Welte, Welte & Welte, P.A., Camden, ME, for Deft. Gulf Oil Corp.

Leonard W. Langer, Thompkins, Clough, Hirshon & Langer, Portland, ME, Brian P. Flanagan, Flanagan & Hunter, Boston, MA, for Deft. Boston Towing & Trans.

ORDER ON DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S JURY DEMAND AND ON PLAINTIFF'S MOTION TO AMEND COMPLAINT

HORNBY, Chief Judge.

The Supreme Court has devoted a considerable amount of its attention in the past forty years to Seventh Amendment jurisprudence, preserving the right to jury trial in federal courts in "suits at common law." All those cases have involved distinguishing between common law and equity, since jury trial historically was available, and therefore constitutionally required, in the common law courts but not in equity. Routinely, however, the Supreme Court has also observed that at the time of ratification of the Seventh Amendment, the courts had three bases of jurisdiction — common law, equity and admiralty — and that jury trial was available only in the first, see e.g., City of Monterey v. Del Monte Dunes, Ltd., ___ U.S. ___, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999); Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998); Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989); Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95 L.Ed.2d 365 (1987). In this lawsuit under the Oil Pollution Act of 1990, 33 U.S.C. §§ 2701-2761, for damages to a shoreline marina caused by gasoline spilling from a barge in navigable waters, I must distinguish between admiralty and common law to determine whether there is a constitutional right to jury trial.¹ I conclude that such ship-to-shore injuries were not within the admiralty jurisdiction in 1791, but were cognizable instead at common law. Accordingly, under recent Supreme Court jurisprudence, the plaintiff has a Seventh Amendment right to jury trial.

I. FACTUAL BACKGROUND

In the early morning hours of February 5, 1997, the defendants were pumping 93-octane gasoline from Gulf Oil Limited Partnership's onshore facility into Boston Towing & Transportation Company's barge located in navigable waters. During the transfer, between 20,000 and 30,000 gallons of gasoline spilled overboard from the barge into Portland Harbor. This gasoline drifted into the plaintiff's marina, causing physical damage to the docks. The plaintiff claimed that the following damages resulted from this spill: (1) physical damage to its docks; (2) business interruption; (3) lost slip revenues due to a resulting delay of dredging operations; (4) loss of goodwill; and (5) business stress.

The plaintiff's complaint contained counts under the Oil Pollution Act, under the general maritime law and under state common law (strict liability/ultrahazardous activity, negligence, trespass and nuisance), and sought both compensatory and punitive damages. On the day that trial was originally scheduled to commence, the defendants conceded liability under the Oil Pollution Act, but moved to strike the claim for punitive damages, on the grounds that such damages are not available under the Oil Pollution Act and that the Oil Pollution Act preempts any other law that would provide for such damages. After turning its attention to Maine's Coastal Conveyance Act, 38 M.R.S.A. §§ 541-560, the plaintiff conceded that state statutory law preempts all its state common-law claims. I then ruled that under Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), the Oil Pollution Act preempts any federal common-law (i.e., general maritime law) claims² and that punitive damages are not available under the Oil Pollution Act. That left only the compensatory damages under the Oil Pollution Act. I granted the plaintiff a short continuance in light of the changed complexion of its case. In the interim, although a jury had already been impaneled, the defendants then moved to strike the plaintiff's demand for a jury trial. I reserved ruling and submitted the case to the jury, on the explicit understanding that the jury's verdict would be advisory if I ruled ultimately that the plaintiff had no right to a jury trial.

I instructed the jury that under the Oil Pollution Act it could award compensation for (i) physical damage to the plaintiff's property (the dock damage); (ii) lost profits, past and future (comprising both the business interruption and the lost slip revenues); and (iii) other economic losses resulting from the spill (damage to goodwill and damages based on business stress). The jury awarded $181,964 for property damage, $110,000 for lost profits, and $300,000 for other economic losses.

After the return of the verdict but prior to entry of judgment, the parties briefed the jury trial issue. The plaintiff also submitted a written motion to amend the complaint to plead diversity of citizenship as a basis of jurisdiction,³ on the theory that it would enhance its jury trial argument. For the reasons that follow, the defendants' motion to strike the jury demand is DENIED; and the plaintiff's motion to amend the complaint is DENIED.

II. DISCUSSION

A. Waiver

The plaintiff claims that the defendants waived any objection to the use of a jury in this case by waiting until the eve of trial to make their motion to strike. According to the defendants, they moved to strike the jury demand the moment the motion became ripe, namely when the state-law claims were dismissed.

The issue here really is not one of waiver because the court can deny an inappropriate request for a jury without a party's motion. See Fed.R.Civ.P. 39(a). Had the defendants suffered a jury trial in silence, I would not hesitate to hold that they had consented to a jury trial under Rule 39(c). In this case, however, on the eve of trial the defendants opposed the use of a jury. Since there was at least doubt whether there was sufficient consent to satisfy Rule 39(c), I exercised my discretion not to order such a trial and initiated instead an inquiry under Rule 39(a) as to the plaintiff's right to a jury trial.

On the first day of trial, moreover, I informed the parties that, should it turn out that the plaintiff has no right to a jury trial, the jury already impaneled would be advisory only. In other words, even assuming that the defendants at one time had consented to a trial by jury, I ordered that there should be no jury trial unless the plaintiff has a right to such a trial. The plaintiff voiced no objection to my refusal to order a jury trial by consent but confined its objection to the timeliness of the defendants' motion to strike. Accordingly, I reject the plaintiff's "waiver" argument and reach the merits of the issue.

B. Right to Jury

By endorsing its complaint with a jury demand, the plaintiff demanded a jury trial in accordance with Rule 38. See Fed. R.Civ.P. 38(b). Accordingly, the case must be tried by a jury unless I find that no right to jury trial exists. See Fed.R.Civ.P. 39(a)(2).

There is no statutory right to jury trial in this case. The Oil Pollution Act — the basis for the plaintiff's only remaining cause of action at the outset of trial — simply does not address the subject. The sole question, therefore, is whether the Seventh Amendment confers a right to jury trial.

The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. ..." U.S. Const. amend. VII. Everyone knows what twenty dollars means (notwithstanding 200 years of inflation) but "Suits at common law" is no longer a customary phrase for lay people, and even many lawyers have lost familiarity with what that phrase means after decades of modern pleading rules. Historically, the framers recognized three basic types of courts existing at the time the Constitution and, later, the Seventh Amendment were ratified-common law courts, equity courts and admiralty courts. Jury trials were available then only in the common law courts, and that is what the Seventh Amendment preserves — a jury trial in cases that would have been common law cases in 1791. Accordingly, when a modern Congress creates by statute a federal cause of action — as it has in the Oil Pollution Act — the determination of whether that federal cause of action carries a constitutional right to jury trial requires a historical analysis of whether it approximates a common law cause of action in 1791.⁴

Specifically, the Supreme Court has instructed: "To determine whether a statutory action is more analogous to cases tried in courts of law than to suits tried in courts of equity or admiralty, we examine both the nature of the statutory action and the remedy sought." Feltner, 523 U.S. at ___, 118 S.Ct. at 1284 (emphasis added). Examination of the "remedy sought" in recent Supreme Court caselaw has focused mostly on damages, often a distinguishing criterion of common law courts as opposed to their equity counterparts (equity typically issued injunctions, specific performance, or other forms of relief), see City of Monterey, ___ U.S. at ___, 119 S.Ct. at 1638, 1647 n. 1 (citing Curtis v. Loether, 415 U.S. 189, 195-96, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974))(Scalia, J., concurring). This criterion is of little utility in distinguishing common law from admiralty (at least where the claim is in personam), however, because the admiralty courts also traditionally awarded money damages to a successful litigant and typically did not afford the conventional equitable remedies. See generally Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty § 1-14 at...