States Court of Appeals
For the First
CAPE FEAR, INC.,
DENNIS A. MARTIN AND SUSAN ALLEN,
E. HALEY AND JOSEPH LEMIEUX,
FROM THE UNITED STATES DISTRICT COURT
THE DISTRICT OF MASSACHUSETTS
Robert E. Keeton, U.S. District
Howard, Circuit Judge.
J. Muzyka with whom Robert
E. Collins and Clinton
& Muzyka, P.C. were on brief for appellant.
M. Latti with whom David
F. Anderson, David
J. Berg, and Latti
& Anderson LLP were on brief for appellees.
This case arises from the sinking of a clamming vessel off the coast of
New Bedford, Massachusetts, causing the deaths of two crew members. Appellant,
the vessel's owner, (1) filed a petition
in admiralty seeking exoneration or limitation of liability under the Limitation
of Liability Act ("the Limitation Act"), 46 U.S.C. app. §§ 181-196.
The district court rejected the petition and found that the vessel was
unseaworthy, leaving appellant fully exposed to pending damage claims.
F/V CAPE FEAR had been on a routine clamming trip out of New Bedford, Massachusetts,
in January 1999 when the vessel, fully loaded with ocean quahogs, ran into
trouble in stormy weather as it headed back to port. The boat carried a
crew of five: Captain Steven Novack, Mate James Haley, and deckhands Steven
Reeves, Paul Martin, and Joseph Lemieux. (2)
As the boat approached New Bedford, the waves washing up on deck were not
receding as they usually did. Novack ordered the crew members to don survival
suits, and, a few minutes later, ordered them to abandon ship. Novack and
Reeves, with their survival suits only partially on, slid down the starboard
side hull as the vessel rolled to port, but Lemieux, with his suit unzipped
at the neck, was thrown into the water on the port side of the now capsized
vessel. Those three had last seen Haley and Martin in the galley putting
on their survival suits.
testified that, once he was in the water, he heard other crew members screaming.
Lemieux's suit was filling up with water because it was not fastened at
the neck, but Haley soon approached with a board and told Lemieux to grab
onto it. Haley and Lemieux then swam to Captain Novack, apparently the
closest other crew member. The three men heard Reeves crying for help,
but could not find him. After about ten minutes, Reeves' yelling stopped.
clamming vessel, the F/V MISTY DAWN, approached and rescued Novack, Haley
and Lemieux. The MISTY DAWN unsuccessfully searched for Martin and Reeves
for thirty to forty-five minutes. The next day, Martin's body was found
floating off a beach on Buzzard's Bay, where the boat sank. According to
the testimony of Officer Michael Camire of the State Environmental Police,
Martin's survival suit was on, but zipped only to his navel. His strobe
light was in the off position. Reeves' body was never found.
cause of the vessel's sinking is the central dispute in this case. The
district court concluded that the CAPE FEAR, as it began its return to
port, "was unseaworthy because substantially overloaded with clams in cages,
a practice that had become common . . . ." It found that the heavy load,
which weighed the boat down and risked its stability, was the primary reason
the boat capsized in the rough conditions it encountered on its last voyage.
The court ruled that the overloading rendered the boat unseaworthy, and
that appellant was strictly liable for damages resulting from that condition.
The court listed additional factors that contributed to the boat's unseaworthiness,
including problems with safety equipment, but it did not rely on these
in finding that the CAPE FEAR was unseaworthy.
however, argues that the CAPE FEAR sank because the crew members on that
particular day negligently failed to close a hatch cover over one of the
clam tanks, allowing water to build up in the lower level of the vessel
and undermining its stability. A total of six clam tanks stood on the CAPE
FEAR's lower deck. They were arranged side-by-side, forward to aft, running
from bow to stern. The two most forward tanks were labeled as #1 port and
starboard, the two in the middle were #2 port and starboard, and the last
two were #3 port and starboard. Each tank had a separate hatch cover that
was attached to a set of rails and was moved into place using a pulley
system. A watertight longitudinal bulkhead separated the starboard clam
tanks from the port clam tanks, but the transverse bulkheads separating
the #1, #2 and #3 tanks on each side were not watertight.
undisputed testimony was that the #3 port side tank cover was left open
that day about three to five inches. There is a dispute, however, concerning
the reason for that opening. Lemieux reported that the hatch cover was
prevented from closing completely by a problem with the rope that was used
to pull the cover into place. The rope had broken on other occasions, he
testified, and crew members would tie a knot in it until the line could
be spliced. The knot, however, would interfere with the pulley system and
leave the hatch cover partially open. (3)
Appellant, by contrast, maintained that the cover was left open improperly
by the crew members responsible for closing it, unbeknownst to either Captain
Novack, Mate Haley, or company president Alexander. The opening created
by the partially closed cover was a "downflooding" point,
(4) and the district
court concluded that it contributed to the vessel's unseaworthiness; as
with the safety equipment, however, the court did not rely on the hatch
cover to reach its unseaworthiness determination.
evidence showed that another possible location for water to accumulate
and contribute to flooding was the space between the #2 and #3 hatch covers
on both the port and starboard sides. The #3 hatch covers were about four
inches below the #2 hatch covers, and they slid beneath the #1 and #2 hatch
covers on a separate set of rails. Lemieux testified that, with the covers
closed, about a one-inch gap remained. (5)
filed its Petition for Exoneration from and/or Limitation of Liability
on June 17, 1999 and submitted an appraisal reporting that the F/V CAPE
FEAR had no value and no pending freight. (6)
Under the Limitation Act, a vessel owner may seek to limit its liability
for any maritime injury or loss to the value of the vessel and its pending
freight, provided that the owner lacks privity or knowledge concerning
the events that gave rise to the damage. Lewis
v. Lewis & Clark Marine,
Inc., 531 U.S. 438, 453 (2001); Hellenic
Inc. v. Bridgeline
Gas Distribution LLC, 252 F.3d 391, 394 (5th Cir. 2001); Carr
v. PMS Fishing Corp.,
191 F.3d 1, 4 (lst Cir. 1999). In the process of seeking limited liability
under the statute, a vessel owner also may request exoneration, or freedom
from all liability. Lewis,
531 U.S. at 453. (7)
hearing six days of testimony, the district court found that appellant
was entitled to neither exoneration nor limitation of liability. It ruled
initially that limitation was unavailable because appellant failed to prove
the value of the vessel, and then went on to find liability based on unseaworthiness.
Appellant argues on appeal that the court's conclusion of liability was
based on clearly erroneous factual findings. It further asserts that, even
if the unseaworthiness determination is upheld, no liability should result
because it lacked privity or knowledge of any unseaworthy condition. Finally,
appellant argues that, in the absence of privity or knowledge, its liability
was capped by the value of the vessel after its sinking, and that that
value was adequately proven to be zero.
review of the record persuades us that the district court did not commit
clear error in its finding of unseaworthiness. As we explain below, its
rejection of limitation of liability also is, on the state of this record,
court's findings after a bench trial are reviewed generously under a clear
error standard, seeCarr,
191 F.3d at 6, and "[w]hen the proof supports plausible but competing inferences,
the trier's choice between them cannot be clearly erroneous," id.
at 7. With that standard in mind, we first consider the court's conclusion
that the CAPE FEAR was unseaworthy, which was the foundation for its finding
that appellant was fully liable in damages to the claimants. We then turn
to the limitation of liability issue.
CAPE FEAR's seaworthiness
ship owner has an absolute duty to provide a seaworthy vessel, and this
duty extends beyond the physical integrity of the vessel and its equipment
to such other circumstances as the procedures crew members are instructed
to use for assigned tasks. Underwriters
at Lloyd's v. Labarca,
260 F.3d 3, 7 (lst Cir. 2001)(citing Vargas
v. McNamara, 608 F.2d
15, 18 (lst Cir. 1979), for the proposition that "a jury could conclude
that the vessel was unseaworthy due to the unsafe procedure crewm[e]n were
directed to employ for cleaning the engine room"). It is well established
that the seaworthiness of a vessel includes its capacity to carry its intended
cargo: "[i]f a vessel is loaded so heavily that she cannot safely sail
on the voyage contracted for, she is unseaworthy." 2ABenedict
on Admiralty § 67. See, e.g., The
Silvia, 171 U.S. 462, 464 (1898) ("The test of seaworthiness is
whether the vessel is reasonably fit to carry the cargo which she has undertaken
to transport."); Mobil Shipping
& Trans. Co. v. Wonshild
Liquid Carriers Ltd., 190 F.3d 64, 68-69 (2d Cir. 1999) (same); Petition
of Long, 439 F.2d 109, 113 (2d Cir. 1971) ("The overloading of the
SMITH VOYAGER made her an unseaworthy vessel.").
does not dispute that, if the CAPE FEAR were routinely overloaded with
clams, the court properly could find that appellant breached its duty of
seaworthiness. Rather, it maintains that no such overloading occurred.
Appellant relies heavily on the expert testimony of David Folsom, a marine
engineer and naval architect, who opined that the vessel met Coast Guard
stability standards and was safe for its intended voyage when loaded, as
appellant contends it was, with 130 cages that were "topped off" with extra
clams to ensure a full load after the original contents of the cages settled.
Although the district court concluded that the vessel carried 132 cages,
appellant maintains there is no record support for any amount over 130.
aside the issue of 132 vs. 130 cages because it makes no difference to
our analysis, the record does not inevitably lead to the conclusion that
appellant wishes to draw. To analyze the vessel's stability, Folsom needed
to select a downflooding point. As we understand his testimony and that
of other experts who testified during the proceedings, a standard stability
analysis considers whether the vessel is sufficiently stable to withstand
expected conditions, including bad weather, recognizing that the downflooding
location is a vulnerability.
the specific stability analysis on which appellant relies, Folsom used
as a downflooding point a vent six-and-one-half feet above the main deck
that opened into the engine room. He acknowledged, however, that this point
would not actually be under water unless the boat capsized. He further
testified that if either the open #3 port hatch cover or the one-inch gaps
between the #2 and #3 hatch covers were used as a downflooding point, the
vessel loaded with 130 full cages would fail the stability analysis.
the district court could have rejected Folsom's favorable assessment of
the boat's stability on the ground that he failed to utilize more realistic
points of flooding for that analysis. In addition, a stability book
(8) prepared for the CAPE FEAR's owner by another naval architect
about two years before the accident stated that the boat could safely operate
with 120 cages and a "freeboard" - the distance from the water line to
the deck - of at least eighteen inches. Lemieux testified that the freeboard
on the return trip appeared to be about ten inches. Although he admitted
this was an estimate and that the freeboard distance could vary with particular
waves, we cannot say that it would have been clear error for the court
to conclude that - whatever the precise number - the freeboard was less
than the minimum eighteen inches recommended. And certainly a plausible
inference is that the freeboard was inadequate because the vessel was overloaded,
and for that reason was sitting too low in the water.
of unseaworthiness based on overloading is further supported, moreover,
by evidence that the CAPE FEAR sank on an even keel, indicating that the
water was accumulating on both sides of the vessel and not just on the
port side with the open hatch cover. Although the three to five inch gap
that Lemieux attributed to the knotted rope undoubtedly exacerbated the
situation - and perhaps accounted for the boat's eventual listing to port
and capsizing in that direction - the court reasonably could conclude that
that gap was not the primary problem. Because the bulkhead between the
port and starboard tanks was watertight, the water that evidently was entering
on the starboard side could not have originated from the opening in the
port side hatch cover. The district court reasonably could have concluded
that the short freeboard at the vessel's stern allowed water to enter the
gap between the #2 and #3 hatch covers.
testimony also was introduced on the other factors cited by the district
court as contributing to the boat's lack of seaworthiness. We need not
explore those factors, as the court's ruling did not rest on them, but
suffice it to say that we find no clear error in its assessment that the
CAPE FEAR's emergency preparedness was less than ideal and that "certain
problems with the aft hold cover" contributed to the lack of seaworthiness
by "permitt[ing] water to enter the Cape Fear's hold much more easily than
if it had been shut." (9)
review thus demonstrates that the district court had ample record support
for its finding that the CAPE FEAR was rendered unseaworthy by overloading.
That the evidence also might support a contrary finding is often the inevitable
reality when cases
difficult factual questions; it is not, however, a basis for reversal.
though a ship owner is strictly liable for damages resulting from a vessel's
260 F.3d at 8 ("a finding of unseaworthiness is not affected by whether
the owner was or was not negligent or at fault"), the liability may be
limited to the value of the ship and its freight if the owner can show
it lacked both awareness of the unseaworthy condition and privity with
anyone who did have knowledge, 46 U.S.C. app. § 183(a). The district
court curtailed its discussion of the Limitation Act because it found that
appellant failed to prove the value of the CAPE FEAR after the sinking,
which is the relevant value under the statute.
claims that the undisputed evidence is that the vessel had no value, and
it maintains that, had the court proceeded to the privity or knowledge
issue, appellant would have been found entitled to limitation of liability.
With a valueless vessel, limitation would eliminate liability entirely.
decline to review the court's contested ruling on the vessel's value because
the record is undisputed and unequivocal in revealing that appellant was
aware of the overloading found by the district court. SeeBenham
v. Lenox Sav. Bank,
292 F.3d 46, 49 (lst Cir. 2002) ("Though rare, an appellate court may make
findings of fact where the record permits only one resolution of the factual
States v. Puerto Rico,
287 F.3d 212, 218 (lst Cir. 2002) ("[W]e . . . may affirm the judgment
on any independent ground that is apparent in the record.").
the parties at trial advanced contrary versions of the conduct responsible
for the sinking, with different implications for the knowledge and responsibility
of the vessel's owner, the court's finding of the primacy of overloading
defines the scope of our inquiry as to privity or knowledge. And the testimony
of Warren Alexander, president and co-owner of Cape Fear, Inc., provides
all of the evidence that is necessary to support a finding of knowledge.
He testified that he commissioned the stability analysis of the CAPE FEAR
in which a naval architect, Koopman, identified 120 cages as an appropriate
load, with a minimum freeboard of eighteen inches. Alexander further testified
that, after some trials with different numbers of cages, Captain Novack
"felt comfortable" with 134, and that the two men finally agreed on 130
as the regular load. They did not further consult Koopman.
Alexander and Novack may have felt that the stability book was too conservative
and could safely be disregarded, the CAPE FEAR's ultimate demise, as found
by the district court, proved their assessment to be incorrect. Because
Alexander, as appellant's principal officer, affirmatively approved the
130-cage load to which the district court properly attributed the vessel's
unseaworthiness, limitation of liability is unavailable.
1. Appellant is Cape Fear,
Inc., whose officers and owners are Warren Alexander and his ex-wife.
2. Lemieux was the only
crew member to testify in the district court proceeding, and the description
of what occurred on the day of the sinking is therefore drawn entirely
from his testimony.
3. Lemieux's testimony
on how long the condition had existed before the final trip appears somewhat
inconsistent. When asked "for how long had there been a knot in that rope,
your best estimate?" he answered: "Probably the two
trips prior to this one and the last trip." Several questions later,
when asked whether he had "observed the No. 3 port hatch open, as on this
trip," he answered: "There had been a few trips previous. Not
the two trips before, but there had been other trips at different
times where that has happened before . . . and they just tied a knot in
it to continue working." The difference in the responses may have been
simply a function of the different questions asked: while he believed the
knot that existed on the final trip had been present for the vessel's two
prior trips, he may have not actually seen the knot on those trips, as
he had on "other trips at different times." Lemieux was a fill-in deckhand
on the Cape Fear, and he worked about half of the vessel's trips.
4. "Downflooding" refers
to the progressive entry of water into the hull, eventually resulting in
flooding and loss of stability. According to testimony at trial, a "downflooding
point" is an opening on
a vessel of at least 3.6 square inches that cannot be closed and is thus
not watertight, and which leads to a major compartment below deck. An open
pipe or open doorway are examples of possible downflooding points.
5. Alexander, the vessel's
owner, testified that the gap was about one quarter inch, which would not
be wide enough to qualify as a downflooding point. The district court did
not explicitly address this factual conflict, but its finding of unseaworthiness
based on overloading makes it likely that the court credited Lemieux's
testimony and believed that water entered both sides of the hull through
6. "Pending freight" is
the total earnings anticipated for the voyage, including charges for carriage
of cargo and passengers. Mediterranean
Shipping Co. S.A. Geneva v. POL-Atlantic,
229 F.3d 397, 400 n.5 (2d Cir. 2000); Caribbean
Sea Transport, Ltd. v.Russo,
748 F.2d 622, 626 (11th Cir. 1984).
7. The Limitation Act does
not expressly extend to exoneration, but courts often consider full immunity
from liability along with the limitation question. SeegenerallyLewis,
531 U.S. at 453-54;seealsoRiverway
Harbor Service, St. Louis, Inc. v. Bridge
& Crane Inspection, Inc., 263 F.3d 786, 792 (8th Cir. 2001).
In some circumstances not relevant here, courts are obliged to respect
a claimant's choice to have the issue of exoneration decided in state court. SeeLewis,
531 U.S. at 451-55.
8. A stability book is
designed to provide guidance to the operating personnel about how to load
a vessel safely.
9. That the hatch was open
was not a subject of debate; rather, the parties' dispute centered on the
reason for its partial closure. Although the court did not elaborate, we
think it a fair assumption that its reference to "certain problems with
the aft hold cover" meant that it rejected appellant's suggestion that
the cover simply was left open negligently on that trip, instead accepting
Lemieux's testimony that a persistent knot in the rope prevented the cover
10. In addition to proving
unseaworthiness, an "injured seaman must prove that the unseaworthy condition
was the sole or proximate cause of the injury sustained." Ferrara
v. A. & V. Fishing, Inc.,
99 F.3d 449, 453 (lst Cir. 1996); seealsoGifford
v. American Canadian Caribbean
Line, Inc., 276 F.3d 80, 83 (lst Cir. 2002) (the unseaworthy condition
must be "a direct and substantial cause" of the injury). Appellant contends
that the court utilized an incorrect and insufficient standard of causation
when it found that loading the boat with 132 cages made it "highly likely
that the F/V CAPE FEAR would sink." We reject this strained interpretation
of the court's language. We think it plain that the court found that the
overloading was the direct cause of the sinking. What it found "highly
likely" was that the overloading problem would trigger a tragedy on that
particular voyage, given the bad weather and rough seas.