Sailor Incorporated v. City of Rockland

United States Court of Appeals
For the First Circuit

No. 05-1141

SAILOR INCORPORATED F/V,

Plaintiff, Appellee,

v.

CITY OF ROCKLAND,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,
Lynch, Circuit Judge,
and Schwarzer,* Senior District Judge.

William H. Welte with whom Welte & Welte, P.A. was on brief
for appellant.
Clayton N. Howard with whom Howard & Bowie, P.A. was on
brief for appellee.

November 4, 2005

*
Of the Northern District of California, sitting by
designation.
 BOUDIN, Chief Judge. This appeal arises from the

sinking of a fishing vessel, the M/V SAILOR ("SAILOR"), while

docked at the Rockland Fish Pier ("Fish Pier") owned by the City of

Rockland, Maine ("Rockland"). A jury found that Rockland's

negligence caused the sinking, and it awarded damages to the

company that owned the vessel in the amount of $202,088. Rockland

now appeals, seeking reversal of the district judge's denial of its

motions for judgment as a matter of law or new trial or, in the

alternative, for remittitur of the damages award.

SAILOR was a 75-foot "scalloper," owned, through his

company, by Gary Hatch and captained by Myron Benner. The Fish

Pier was initially operated through a lease agreement by Water

Street Management ("Water Street"), but on January 1, 2002, the

lease was terminated and Rockland assumed full operation and

management of the Fish Pier.

SAILOR docked at the Fish Pier on February 9, 2002, in

its assigned berth. On February 12, 2002, Hatch and Benner moved

SAILOR from its assigned berth to the take-out berth (a common

berth that is primarily used for the unloading of hauls), where it

remained until the early morning of February 16, 2002. Sometime

during the night or morning the hull of the SAILOR was pierced by

an exposed bolt on the Fish Pier, causing the vessel to sink.

Hatch filed suit against Rockland on October 10, 2003, in

Maine state court, and Rockland, invoking general maritime law,

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removed the case to federal district court. Partial summary

judgment was granted in Rockland's favor limiting liability to the

fair market value of the SAILOR prior to sinking. At the close of

trial, the jury, using a special verdict form, found that

Rockland's negligence had caused the sinking and that Hatch had not

been negligent. The jury set the fair market value of the SAILOR,

including prejudgment interest, at $202,088.

On this appeal, Rockland seeks reversal of the district

court's denial of its motion for judgment as a matter of law or new

trial, or in the alternative, a remand to the district court for a

new trial to apportion fault between Rockland and SAILOR. As a

final alternative, Rockland requests a remittitur, contending that

the damage award is not supported by the evidence. The remittitur

would give Hatch the choice of accepting a lower figure fixed by

the court or facing a new trial on damages.

Our review is de novo as to the motion for judgment as a

matter of law. Nonetheless, "our scrutiny of the jury verdict is

tightly circumscribed; we will reverse only 'if a reasonable person

could not have reached the conclusion of the jury.'" Foisy v.

Royal Maccabees Life Ins. Co., 356 F.3d 141, 145 (1st Cir. 2004)

(quoting White v. N.H. Dept. of Corr., 221 F.3d 254, 259 (1st Cir.

2000)). As to the motion for new trial, we review for abuse of

discretion, bearing in mind that a district court "may set aside a

jury's verdict and order a new trial only if the verdict is so

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clearly against the weight of the evidence as to amount to a

manifest miscarriage of justice." Rivera Castillo v. Autokirey,

Inc., 379 F.3d 4, 13 (1st Cir. 2004) (quoting Federico v. Order of

Saint Benedict in Rhode Island, 64 F.3d 1, 5 (1st Cir. 1995)).

The legal framework as to negligence in this situation is

straightforward. The wharf owner must exercise the diligence to

maintain its berths in a safe manner and to remove any "dangerous

obstruction" or warn of its existence. Pan Am. Grain Mfg. Co. v.

P.R. Ports Auth., 295 F.3d 108, 114-15 (1st Cir. 2002). This

extends to dangerous conditions of which the wharf owner knows or

should have known. Smith v. Burnett, 173 U.S. 430, 433 (1899).

Yet the vessel too must use "ordinary care," avoiding dangerous

conditions that are known to the operator or are obvious. Id.; Pan

Am. Grain Mfg., 295 F.3d at 115.

On appeal, Rockland first objects to the finding that its

negligence caused the sinking. The jury heard evidence that before

Rockland took over the wharf, it did not perform necessary repair

and maintenance requested by Water Street, and that after it took

over there was no policy of inspection or maintenance; Water Street

had performed such functions regularly. The city manager conceded

that the Fish Pier was in "disarray" when the city began its own

management, which it regarded as a "caretaker" role until a new

operator could be found.

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 Although the jury thus had ample basis to find negligence

by Rockland in the operation of the wharf, causation was a closer

question. Hatch's position at trial was that the take-out berth

should have had "camels"--logs shielded by rubber tires--to keep

vessels from rubbing against the concrete piers; alternatively,

Hatch charged that it was negligent for Rockland to allow an

exposed bolt to protrude from the pier. Both theories assumed,

with adequate basis in the evidence, that the SAILOR had chafed

against an exposed bolt which ultimately holed the vessel and

caused her sinking.

The first theory was weak; the absence at the take-out

berth of camels, present in regular berths, seemingly facilitated

unloading and anyhow this absence was obvious to Hatch and Benner.

In fact, Hatch placed two polyethylene buffer balls ("polyballs")

between SAILOR and the pier, although in the end this proved

insufficient to protect the vessel. There were also chafe boards

on the side of the pier--a further precaution: it appears likely

that one board was absent or split during the night and that a

bolt, thus exposed, was the immediate cause of the sinking.1

1
From the photographs and descriptions in evidence, it appears
that the piers are solid concrete, covered with a deck of wooden
planking. The wooden planking extends beyond the concrete on
either side, and wooden pilings extend down from the planking into
the water, lining the concrete railroad-tie-style; it is to these
pilings that the chafe boards are bolted.

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 Hatch's second theory (that the exposed bolt bespoke

causal negligence on the part of Rockland) is sufficient, given the

deference due to a jury's factfinding. N.H. Dept. of Corr., 221

F.3d at 259. The situation is confused because the chafe board may

have been in place on the afternoon before the sinking and split

during the night. If the board was missing in the afternoon, then

the bolt was already exposed, and Rockland now argues that it was

an obvious hazard that should have led Hatch to remove either the

bolt or the vessel; if the board split off during the night, then

Rockland says it was not negligent in failing to cope with a new

hazard of which it was not aware.

However, the guilty bolt lay close to the water at low

tide, and assuming the board was not in place, this could have been

a hazard that a regular wharf-owner inspection would have

discovered and dealt with, yet it could still not have been obvious

to Hatch and Benner from the deck of a large vessel. And, if the

board was present but was chafed away at night, the jury could have

inferred negligence in maintaining the boards. Absent contrary

evidence, it is a permissible inference that a properly maintained

board would not suddenly break apart in the normal weather

conditions that prevailed. Or at least a reasonable jury could so

conclude, which is all that is necessary. Autokirey, 379 F.3d at

9.

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 Rockland's stronger argument--but not quite strong

enough--is that SAILOR's own negligence was the true cause, or at

least a contributing cause, of the accident. Under maritime law,

the former would arguably eliminate liability for Rockland and the

latter would permit an apportionment of damages. Carey v. Bahama

Cruise Lines, 864 F.2d 201, 207-08 (1st Cir. 1988). The evidence

raised a set of doubts about the conduct of Hatch and his captain,

any of which might have persuaded a jury of their negligence; but

none of them compelled that conclusion. We address them

individually.

First, Hatch moored the vessel for several days at the

take-out berth, which plainly had no camel. If the chafe board was

already missing or damaged and if the exposed bolt was readily

visible from the deck, arguably Hatch could not reasonably have

left the situation as it was; however, there is no conclusive proof

that these premises are correct. Alternatively, a jury might have

thought that the two polyballs employed by Hatch were not enough;

but nothing in the evidence (there were conflicting expert opinions

on the issue) clearly compelled that conclusion.

Rockland also criticizes the amount of slack that Hatch

left in the lines that moored the SAILOR to the pier, arguing that

it was excessive and allowed the SAILOR to chafe against the pier

more than usual, contributing to the wearing away of the chafe

board or SAILOR's hull (or both). Once again, there were

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conflicting expert opinions presented at trial on the sufficiency

of the mooring: Hatch (testifying as an expert) stated that the

conditions on the evening in question were normal, and that the

SAILOR was tied up according to his usual practice; Rockland's

expert testified that the mooring was, in his opinion,

insufficient. The jury was entitled to credit Hatch's expert

testimony over Rockland's.

Next, Rockland's brief on appeal says that there was worm

damage to the vessel and that the repair measures (e.g., sheathing)

had not been adequate to prevent a weakening of the boards where

the bolt had pierced the hull. But whether the repair measures

were negligent and whether the weakened boards played a causal role

were hardly clear-cut. Again, this was a choice for the jury.

Finally, it is claimed that SAILOR's owner or captain had

a duty "to tend" the vessel--Rockland's suggestion being that one

of the two should have visited the vessel overnight, checked the

lines, and discovered and remedied any undue movement and chafing

against the pier. That a vessel-owner or operator has a duty of

reasonable care in securing the vessel is well-established, Smith,

173 U.S. at 433, but there is no law that this automatically

requires overnight visits to the vessel nor any showing of

circumstances in this case that required the jury to find such

visits necessary.

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 We conclude that the district court properly refused to

overturn the jury's verdict as to liability. In some cases, the

evidence might preclude judgment as a matter of law and yet lean so

heavily in the other direction so as to justify a district judge in

ordering a new trial. 9A Wright & Miller, Federal Practice and

Procedure: Civil 2d § 2531 (1995); Nat'l Car Rental Sys. v. Better

Monkey Grip Co., 511 F.2d 724, 730-31 (5th Cir.), cert. denied, 423

U.S. 894 (1975). It would be much rarer to find that the district

judge, who observed the trial, had "abused his discretion" (the

relevant standard) in refusing to order a new trial. E.g. Lama v.

Borras, 16 F.3d 473, 477 (1st Cir. 1994). No such abuse occurred

in this case.

Damages are the final target of Rockland's appeal. The

treatment of damages by a federal appellate court is potentially

complicated in at least two ways: first, the curious limitation

that requires use of remittitur (as opposed to judgment as a matter

of law) to remedy an excessive verdict, 11 Wright, Miller & Kane,

Federal Practice and Procedure: Civil 2d § 2815, at 159-60 (1995);

and second, some arguable tension in the case law as to the

standard of review of a denial of remittitur by the district court:

commonly, courts say that review is for "abuse of discretion," but

the problem and some of the case law may be more subtle.

We need not pursue these issues because, in the present

appeal, Rockland has invoked a test taken from our case law,

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namely, that a "jury's damage award should be upset if [quoting

from our decision] it 'exceeds any rational appraisal or estimate

of the damages that could be based upon the evidence . . . .'

Wortley v. Camplin, 333 F.3d 284, 297 (1st Cir. 2003)." Hatch has

pointed to the same language in his answering brief, and we use

this as an undisputed standard.

In this case, the jury award was for $202,088. But as

the district court pointed out (in its post-judgment decision on

remittitur), the jury was told that prejudgment interest could be

included in its discretion. Carey, 864 F.2d at 208 n.6. Working

backward from the specified rate of annual interest, the district

court deemed it reasonable to impute a value of $168,929 to the

vessel, with the balance representing interest on this figure.

Hatch argues on appeal that--using somewhat different formulas and

assumptions as to dates--the jury may have found a vessel value as

low as $161,000.

Rockland grumbles about the assumption that the jury did

in fact allow for prejudgment interest, but the assumption does not

turn on mind-reading of the jury: the verdict is not irrational if

under the governing law the evidence permitted a rational jury to

impose liability and award damages in the amount reflected in the

verdict. If the evidence permitted the jury's result, then whether

the jury reasoned properly in reaching it is a matter over which

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the law ordinarily draws a veil. See Fed. R. Evid. 606(b); Ramos

v. Davis & Geck, Inc., 224 F.3d 30, 31-32 (1st Cir. 2000).

In this case, the jury was offered much evidence

supporting a value of the vessel well under $169,000. Hatch had

purchased the SAILOR two years before the sinking for $35,000, and

it was apparently insured for an "agreed value" of $50,000 at the

time of its loss. Yet there had been refurbishment in 2001, also

the subject of evidence, and the issue was the refurbished vessel's

fair market value at the time it sank, which could easily be well

above the original purchase price.

At trial, Rockland's expert estimated the value of the

vessel just before its sinking as between $80,000 and $100,000.

Hatch's expert made his own estimate of $120,000; but he was called

by Rockland, not Hatch, and his testimony did not prevent the jury

from awarding more, if more was rationally supported by evidence.

The evidence for a higher figure was furnished by Hatch himself:

citing his own experience as a captain and maritime surveyor, he

opined as an expert witness that the vessel had been worth between

$166,000 and $189,000; indeed, he later adjusted his testimony to

support a figure as high as $199,000.

Obviously, Hatch was subject to being discredited, both

because of his patent self-interest and because both of the other

experts had arrived at lower figures. E.g., Shane v. Shane, 891

F.2d 976, 982 (1st Cir. 1989). But Rockland does not deny that

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Hatch was entitled to testify as an expert, and the jury was free

to weigh the credentials of the witnesses and the cogency of the

bases given for their opinions. This is the kind of fact and

credibility judgment on which the jury is ordinarily entitled to

great latitude. See Primus v. Galgano, 329 F.3d 236, 244-45 (1st

Cir. 2003).

The latitude is not unlimited: one can imagine a case

where, when the details of the testimony are examined, a jury could

rationally accept one expert's view but could not accept the

other's. See Sullivan v. Nat'l Football League, 34 F.3d 1091, 1105

(1st Cir. 1994), cert. denied, 513 U.S. 1190 (1995). Here,

Rockland's brief makes no effort to set out the reasoning of the

experts and explain why its expert's discussion is compelling and

Hatch's so weak that no rational jury could accept it. Without

such a showing, we have no basis for saying that Hatch's estimate

of $166,000-$189,000 had to be disregarded.

The verdict rendered by the jury--attributing to it a

value of $169,000 for the vessel--fits within Hatch's estimate.

From the surface facts, it appears that the jury was generous in

accepting Hatch's estimate over and above the more modest figure

offered by Rockland's expert and the expert whom Hatch himself

retained but did not proffer as a witness. Yet this does not show

that the jury acted irrationally. Autokirey, 379 F.3d at 13.

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 As a tail-end argument, Rockland complains that it was

unreasonably limited in cross-examining Hatch. The district court

did permit considerable cross-examination into Hatch's experience

and history. However, when Rockland's counsel sought to cross-

examine Hatch as to whether he had been involved in the sinking of

two other vessels before SAILOR's demise, the district court

sustained an objection to the line of inquiry under Fed. R. Evid.

403. That provision gives the district judge ample discretion to

exclude testimony where its probity is substantially outweighed by

prejudice, confusion or the like.

What Rockland fails to mention is that before ruling on

the objection, the court inquired whether Rockland intended to

bring out evidence that Hatch had been negligent in connection with

the earlier sinkings. Rockland conceded that it had no such

evidence, and it did not suggest that it expected to adduce it from

Hatch. Absent such evidence, the threshold relevance of the prior

sinkings is not apparent, and Rockland's brief furnishes no

explanation of the relevance of the questions. Nothing more need

be said on the Rule 403 determination.

The district judge suggested that, on these facts, he

would not have ruled this way. Indeed, this is a close case for

apportioning all fault to Rockland, and one's confidence in the

result is not increased by the rather generous damages award.

However, we put our faith in juries to resolve close cases, and

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although the appeal has been ably briefed, the jury verdict is not

irrational.

Affirmed.

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