USCA1 Opinion
December 15, 1994 [NOT FOR PUBLICATION] [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
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No. 94-1690
THOMAS TRUPIANO,
Plaintiff, Appellant,
v.
CAPTAIN GUS & BROTHERS, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge] _____________________
_________________________
Before
Selya, Circuit Judge, _____________
Coffin, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
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Joseph M. Orlando, with whom Orlando & Associates was on __________________ _____________________
brief, for appellant.
Thomas J. Muzyka, with whom Robert E. Collins and Clinton & _________________ _________________ _________
Muzyka, P.C. were on brief, for appellee. ____________
_________________________
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Per Curiam. Following an evidentiary hearing in which Per Curiam. __________
a magistrate judge awarded plaintiff-appellant Thomas Trupiano, a
seaman, maintenance and cure,1 Trupiano appealed. His appeal
presents what amounts to a single factbound issue: whether the
court below erred in failing to hold defendant-appellee, Captain
Gus & Bros., Inc., liable for punitive damages and attorneys'
fees in consequence of its refusal to pay maintenance and cure to
Trupiano when and as due.
Plaintiff, of course, had the burden of proving
defendant's liability for these imposts by showing that defendant
was "callous, willful, or recalcitrant in withholding
[maintenance and cure] payments." Robinson v. Pocahontas, Inc., ________ ________________
477 F.2d 1048, 1051 (1st Cir. 1973). Given that burden, given
the conflicted nature of the evidence, given the gaps in the
available information that existed up to the time of trial, and
given, especially, the deferential standard of review that
pertains, see, e.g., DiMillo v. Sheepscot Pilots, Inc., 870 F.2d ___ ____ _______ ______________________
746, 749 (1st Cir. 1989) ("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)."), we
cannot say that the district court clearly erred in finding that
defendant's failure to make timely payments of maintenance and
cure, though eventually adjudged to be without adequate legal
basis, did not justify the imposition of punitive damages and/or
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1The evidentiary hearing followed a jury trial on issues
involving claims of unseaworthiness and Jones Act liability.
Those issues are not before us.
2
attorneys' fees. After all, when there are two plausible sets of
inferences that can be drawn from the facts, the trier's choice
between them cannot be clearly erroneous. See Anderson v. City ___ ________ ____
of Bessemer City, 470 U.S. 564, 573-74 (1985); Cumpiano v. Banco _________________ ________ _____
Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990). So it is ______________
here.
We need go no further.2 Because it "clearly appear[s]
that no substantial question is presented" by this appeal, 1st
Cir. R. 27.1, the judgment below can be summarily
Affirmed. Costs to appellee. Affirmed. ________
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2To be sure appellant also complains that the lower court
improperly denied his motion to amend in order to add the boat-
owner's insurer as a party defendant. We think that ruling was
well within the magistrate's discretion. In any event, the
insurer's status as a party obviously would not have affected the
outcome either of the case or of the appeal.
3