Poulis Minott v. Smith

United States Court of Appeals
For the First Circuit

No. 03-2601

KATHY POULIS-MINOTT, as personal representative
of the Estate of Carlyle Minott,

Plaintiff, Appellant,

v.

DAVID W. SMITH,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

Torruella, Dyk*, and Howard,
Circuit Judges.

David J. Berg, with whom Carolyn M. Latti and Latti & Anderson
LLP, were on brief, for appellant.
Mark E. Dunlap, with whom Norman Hanson & DeTroy, LLC, was on
brief, for appellee.

October 28, 2004

*
Of the Federal Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. On October 23, 2000, Captain

Carlyle Poulis-Minott took the forty-four foot fishing vessel, the

F/V KATINA ASHLEY (the "Vessel"), out on a solo fishing trip and

never returned. On October 24, 2000, the Coast Guard received a

distress call from the Vessel's Emergency Position Indicating Radio

Beacon ("EPIRB").1 The Vessel and its life raft were never found,

and no one knows exactly what happened to the Vessel or whether

Captain Minott had any opportunity to access the Vessel's

lifesaving gear before he drowned.

Plaintiff-appellant Kathy Poulis-Minott, as personal

representative of the estate of Carlyle Minott (the "Estate"),

filed an action against the owner of the Vessel, defendant-appellee

David W. Smith, seeking damages based on two theories of liability:

Jones Act negligence and unseaworthiness. The Estate then filed a

motion for summary judgment, claiming that the existence of several

Coast Guard safety regulation violations aboard the Vessel entitled

it to summary judgment on the Jones Act and unseaworthiness claims,

and eviscerated Smith's contributory negligence and primary duty

rule affirmative defenses. Smith, in turn, contested the Estate's

arguments and sought summary judgment, arguing that (1) the Estate

failed to show the causation necessary for its Jones Act and

1
EPIRBs are designed to alert rescue authorities and indicate a
vessel's location when a vessel is in distress.

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unseaworthiness claims; (2) Minott was the owner pro hac vice of

the Vessel; and (3) that Minott was contributorily negligent.

The district court granted Smith's motion for summary

judgment as to all claims, finding that the Estate failed to

establish any triable issues of fact regarding causation with

respect to its Jones Act and unseaworthiness theories of liability.

The Estate now appeals the decision of the district

court. First, the Estate challenges the district court's failure

to exclude certain testimony of Smith's experts and to strike

portions of their late-filed affidavits. The Estate also

challenges the inclusion in the Magistrate Judge's factual

narrative of defendant experts' opinions that "the likely cause of

the sinking of the Vessel is that it was struck and dragged by

another vessel . . ." and that "the safety equipment on the Vessel

was in place and up to date as of late September 2000," both for

failing to comply with Federal Rule of Evidence 56 and for other

evidentiary reasons. Finally, the Estate claims that the district

court erred in dismissing the Estate's Jones Act and

unseaworthiness claims based on its failure to invoke the burden-

shifting Pennsylvania Rule (The S.S. Pennsylvania v. Troop, 86 U.S.

(19 Wall.) 125, 135 (1873)).

After careful review of the record, we affirm the

judgment of the district court.

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 I. The Facts

A. Evidentiary Issues

It is important to address at the outset the district

court's evidentiary rulings in response to the Estate's Motions to

Strike and to Exclude because these decisions partially define the

world of facts that are available for consideration of the summary

judgment motions. We will reverse the district court's evidentiary

rulings only where there is an abuse of discretion. Díaz-Rivera v.

Rivera-Rodríguez, 377 F.3d 119, 123 (1st Cir. 2004) (citing

Cummings v. Standard Register Co., 265 F.3d 56, 62 (1st Cir.

2001)).

The appellant raises three related challenges to the

district court's discovery management. First, the appellant argues

that the district court erred in failing to strike as outside the

scope of Smith's expert designation, portions of three late-filed

expert affidavits submitted by Smith on July 1, 2003, four days

after the discovery deadline of June 26, 2003, and one and a half

months after the defendant's expert disclosure deadline of May 15,

2003. The disputed affidavits came from three of the experts named

in Smith's May 15, 2003 expert designation: Lea Leavitt, Craig

Mifflin and David DuBois. Second, the Estate contends that the

district court abused its discretion by failing to exclude several

of the expert opinions that the Estate claims (1) lacked the

reliability required by Daubert v. Merrel Dow Pharmaceuticals,

-4-
Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 526

U.S. 137 (1999), and (2) contained conclusory assertions that did

not explain the experts' reasoning. Finally, the Estate claims it

was an error of law for the district court not to address the

qualifications of the defendant's experts. See Fed. R. Evid. 702.

1. Disclosure and Timeliness of Expert Opinions

In considering the Estate's motions to strike and

exclude, the Magistrate Judge meticulously reviewed each paragraph

the plaintiff identified as containing newly disclosed expert

opinions and granted the plaintiff's motion for certain paragraphs

and denied the motion for others. See Plaintiff's Motion to

Exclude Various Opinions of Defendant's Experts, Minott v. Smith,

No. 03-10-P-H, 2003 WL 22078070 (D. Me. Sep. 05, 2003) (No. 13)

("Motion to Exclude"); Plaintiff's Motion to Strike Portions of

Defendant's Affidavits in Support of His Cross Motion for Summary

Judgment, Minott, 2003 WL 22078070 (No. 19) ("Motion to Strike").

The appellant now claims that the Magistrate Judge erred by failing

to strike or exclude the remaining objected-to paragraphs.

Federal Rule of Civil Procedure 26(a) provides that "a

party shall disclose to other parties the identity of any person

who may be used at trial to present [expert opinion evidence]" and

submit a detailed report including the expert’s qualifications and

"a complete statement of all opinions to be expressed and the basis

and reasons therefor." Fed. R. Civ. P. 26(a)(2)(A)-(B). This

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Court has held these directives to be mandatory since the adoption

of Rule 37(c)(1), which "clearly contemplates stricter adherence to

discovery requirements, and harsher sanctions for breaches of this

rule." Klonoski, M.D. v. Mahlab, M.D., 156 F.3d 255, 269 (1st Cir.

1998). "[T]he required sanction in the ordinary case is mandatory

preclusion." Id.

Rule 37(c)(1) enforces Rule 26(a) by providing that "[a]

party that without substantial justification fails to disclose

information required by Rule 26(a) . . . is not, unless such

failure is harmless, permitted to use as evidence . . . any witness

or information not so disclosed." Fed. R. Civ. P. 37(c)(1).

Although Rule 37(c)(1) is traditionally invoked to preclude expert

testimony at trial, it can also be applied to motions for summary

judgment. See Lohnes v. Level 3 Communications, Inc., 272 F.3d

49, 60 (1st Cir. 2001) (citing Trost v. Trek Bicycle Corp., 162

F.3d 1004, 1007-09 (8th Cir. 1998) (finding that a products

liability defendant, whose summary judgment motion relied partially

on the plaintiff's lack of expert testimony, would have been

significantly prejudiced by plaintiff's untimely expert

disclosure)). However, as we have previously noted, Rule 37(c)(1)

"allows the court to admit belatedly proffered expert evidence if

the proponent's failure to reveal it was either substantially

justified or harmless." Lohnes, 272 F.3d at 60.

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 The purpose of the expert disclosure rules is "to

facilitate a 'fair contest with the basic issues and facts

disclosed to the fullest practical extent.'" Id. (quoting Thibeault

v. Square D. Co., 960 F.2d 239, 244 (1st Cir. 1992)). Thus Rules

26(a) and 37(c)(1) seek to prevent the unfair tactical advantage

that can be gained by failing to unveil an expert in a timely

fashion, and thereby potentially deprive a plaintiff of the

opportunity to "depose the proposed expert, challenge his

credentials, solicit expert opinions of his own, or conduct expert-

related discovery." Id.

Here, the Magistrate Judge focused on determining whether

the expert opinions in the affidavits had been disclosed during the

discovery period in accordance with Rule 26(a). Unlike the

situation in Lohnes or Trost, Smith actually disclosed the identity

of his experts and provided the Estate and court with expert

designations that included the opinions the experts would express

in accordance with the court's deadline for expert designations.

The issue here is not that the experts' affidavits were entirely

new and unannounced, but rather whether any new information was

included in the expert affidavits that was not included in the

"complete statement of all opinions to be expressed," as required

by Rule 26(a).

In ruling on the affidavits, the Magistrate Judge clearly

evaluated each segment of the affidavits individually. In some

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paragraphs, the court found that the May 15, 2003 designation of

experts adequately encompassed the opinions in the affidavits. In

paragraphs where the district court found the expert opinion to be

beyond the scope of expert designation, the Estate's motion to

strike was granted. In so doing, the Magistrate Judge ensured that

consideration of any remaining information in the affidavits would

be harmless to the plaintiff. For example, the Magistrate Judge

granted in part Plaintiff's Motion to Strike with regard to

Paragraph 23 of Leavitt's affidavit where Leavitt "opines that the

Vessel was rammed" because the Judge found it was not fairly

disclosed in Smith's expert designation. Minott v. Smith, No. 03-

10-P-H, 2003 WL 22078070, at *5 (D. Me. Sep. 05, 2003). However,

the Judge denied the motion as to the second sentence in Paragraph

23 because he determined that the contents of the sentence "should

come as no surprise in view of Smith's disclosure in his expert

designation." Id. For these reasons, we find that the district

court did not abuse its discretion in denying the plaintiff's

motion to strike with respect to the remaining paragraphs.

2. Allegedly Conclusory and Unreliable Expert Opinions

We find that the Magistrate Judge was also within his

discretion in allowing the allegedly conclusory and unreliable

opinions of Smith's experts. Here again, the Magistrate Judge

scrupulously considered each paragraph in question and determined

that some opinions were inadmissible legal conclusions, while

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others could not be "characterized as 'conclusory' in the sense

contemplated by Hayes v. Douglas Dynamics, Inc." Minott, 2003 WL

22078070, at *4 (citing Hayes v. Douglas Dynamics, Inc., 8 F.3d 88,

92 (1st Cir. 1993) ("Although expert testimony may be more

inferential than that of fact witnesses, in order to defeat a

motion for summary judgment an expert opinion must be more than a

conclusory assertion about ultimate legal issues.")). For example,

the Magistrate Judge granted the Estate's Motion to Strike as to

Paragraph 6 of DuBois' Affidavit because he found it to be an

inadmissible legal conclusion. Id. at *6.

The Magistrate Judge also considered whether the opinions

were reliable under the Daubert standard and thoroughly explained

his determinations. Id. (citing Daubert, 509 U.S. at 589). For

example, the Magistrate Judge denied the Motion to Exclude for

Paragraph 14 of Leavitt's affidavit, finding that Leavitt's opinion

that Minott would be able to take steps to save himself if he had

time to respond, was sufficiently reliable for Daubert purposes,

because although it was not highly technical, it was "based on a

mixture of specialized knowledge of [the fishing] industry and

highly personal knowledge of the habits and character of [Minott]."

Id. at *4.

3. Qualifications of Defendant’s Experts

Finally, we find no reversible error of law due to the

lack of an explicit ruling on the qualifications of Smith's

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experts. Federal Rule of Evidence 702 provides that an expert must

be qualified to testify based on the expert's knowledge, skill,

experience, training or education. It is the responsibility of the

trial judge to act as gatekeeper and ensure that the expert is

qualified before admitting expert testimony. Correa v. Cruisers,

a Div. of KCS Intern., Inc., 298 F.3d 13, 24 (1st Cir. 2002); see

also Daubert, 509 U.S. at 589, 592 (discussing a judge's role in

screening scientific expert testimony); Kumho Tire Co., 526 U.S. at

141 (extending Daubert's gatekeeping obligation to other non-

scientific testimony); Diefenbach v. Sheridan Transp., 229 F.3d 27,

30-31 (1st Cir. 2000)(setting forth the requirements of Rule 702).

In the summary judgment context, Rule 56(e) states that "affidavits

shall be made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively that

the affiant is competent to testify to the matters stated therein."

Fed. R. Civ. P. 56(e); see also Sheinkopf v. Stone, 927 F.2d 1259,

1262 (1st Cir. 1991). The "trial court has 'broad discretionary

powers' in qualification of experts[,] and that court's decision

will be affirmed unless there is clear error." Correa, 298 F.3d at

26 (quoting Diefenbach, 229 F.3d at 30).

In its Motion to Exclude, the Estate argued that the

defendant failed to specify the qualifications for four of his

experts: Lea Leavitt, Craig Mifflin, Dennis Custeau, and Chris

Harrison. The Estate explicitly stated that it raised the issue of

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qualifications "in order to preserve its objection to the

qualification of these expert witnesses at the time of trial."

Plaintiff's Motion to Exclude at 6. It is unnecessary to address

Custeau and Harrison's qualifications here because their opinions

are not relied on in establishing the facts cognizable on summary

judgment. However, the district court did, as do we, consider some

of the opinions provided by Leavitt and Mifflin.

In his Recommended Decision and Memorandum Decision on

Ancillary Motions, the Magistrate Judge deferred making a decision

on the Estate's charge that there was a lack of specification of

the experts' qualifications based on the fact that the Estate

specifically noted that it was raising the issue to preserve the

point for trial. Minott, 2003 WL 22078070, at *3. While he did

not explicitly rule on the qualifications portion of the Motion to

Exclude, the Magistrate Judge did indicate his awareness of Leavitt

and Mifflin's qualifications when he granted or denied specific

objections the plaintiff raised to their affidavits by making

several references to their qualifications. For example, the

Magistrate noted that Leavitt "was an experienced fishing-boat

captain." Id. at *4. The judge also noted that Leavitt's

statement was based on "a mixture of specialized knowledge of an

industry (fishing)." Id. With respect to Mifflin, the Magistrate

Judge was clearly aware of the qualifications contained in

Mifflin's affidavit regarding his experience as a fisherman and as

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captain of the Vessel since he discussed Mifflin's

responsibilities, including safety responsibilities, as captain of

the F/V KATINA ASHLEY. See id. at *6.

As a district court has broad discretion in its

determination of the qualification of experts, and as the

Magistrate Judge here chose not to strike or exclude specified

portions of the expert affidavits, and noted some of the experts'

qualifications while ruling on other issues, we do not find the

lack of an explicit ruling on the qualifications portion of the

Motion to Exclude to be an abuse of discretion. However, while we

recognize that the Rule 702 inquiry is flexible and that "there is

no particular procedure that the trial court is required to follow

in executing its gatekeeping function," the use of greater clarity

in addressing the qualifications of the experts in this case would

have been preferable.

For the above reasons,2 we find that the district court

did not abuse its discretion in accepting those parts of the

affidavits which remain for consideration of summary judgment.

2
The Estate also challenges the Magistrate Judge's use of the
term "foreshadowed" where the Magistrate found certain expert
opinions to be "adequately foreshadowed" in Smith's expert
designation. Minott, 2003 WL 22078070, at 4-6. We do not deem it
necessary to decide whether the term "foreshadowed," as used by the
Magistrate Judge, is sufficient to satisfy the requirements of Rule
26(a). Rather, we find that the expert opinions remaining after
the Magistrate Judge's surgery are covered by the original
disclosure and therefore within the Magistrate Judge's discretion
to accept them.

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B. Facts Cognizable on Summary Judgment

After resolving the foregoing evidentiary issues raised

on appeal, the material facts available for consideration of the

motions for summary judgment are largely the same as those

described by the Magistrate Judge in the Recommended Decision and

Memorandum Decision.

In ruling on a motion for summary judgment, the court

must view "the facts in the light most favorable to the non-moving

party, drawing all reasonable inferences in that party's favor."

Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995).

These "standards are the same where, as here, both parties have

moved for summary judgment." Bienkowski v. Northeastern Univ., 285

F.3d 138, 140 (1st Cir. 2002) (citing 10A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure

§ 2720, at 335-36 (3d ed. 1998)("The court must rule on each

party's motion on an individual and separate basis, determining,

for each side, whether a judgment may be entered in accordance with

the Rule 56 standard.")). Therefore, as we are reviewing the grant

of Smith's motion for summary judgment, we now recite the facts in

the light most favorable to the Estate.

David Smith became the owner of the forty-four foot

Vessel named the F/V KATINA ASHLEY in 1989. During the

approximately nine years the Vessel was used for fishing, Smith was

never the captain.

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 Smith had several captains of the Vessel, including

Craig Mifflin and Carlyle Minott. Mifflin was captain of the

Vessel for approximately two years, immediately prior to Minott.

He left the position in late September 2000. Minott was the

captain of the Vessel as of October 4, 2000. There was no written

agreement between Smith and Minott regarding the operation of the

Vessel or the length of time Minott would serve as captain.

Smith's captains had a great deal of autonomy and

responsibility. Smith did not direct his captains regarding what

types of fish they were to catch or where they were to fish, with

the exception of limiting their activities to within fifty miles of

shore, based on the limit of Smith's insurance policy. In

addition, it was Minott's responsibility as captain to review all

of the boat's safety systems prior to use because he was

responsible for the crew’s safety. The Vessel had made twenty-

eight fishing trips in 2000 prior to Minott's first fishing trip on

October 19, 2000.

While the Magistrate Judge included various opinions by

Smith's experts regarding the Vessel's condition and the safety

equipment on board the Vessel, we do not find it necessary to

consider some of those opinions here. We do note that a few months

prior to leaving the Vessel, Mifflin replaced the battery in the

EPIRB, and then during his final trip on the Vessel, Mifflin

manually tested the EPIRB system.

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 On October 9, 2000, Michael Monroe, a marine surveyor,

performed a Condition & Value Survey of the Vessel on behalf of a

potential buyer. Monroe observed and inspected safety/life-saving

equipment, including the following: (1) three Type I Personal

Flotation Devices (PFDs) without lights,3 with retro-reflective

tape; (2) three survival suits with chem-lights and retro-

reflective tape; (3) one Viking inflatable four-person life raft

with hydrostatic release; and (4) one Guest 406 EPIRB with

hydrostatic release.

The last time the life raft had been serviced or

inspected prior to October 23, 2000 was on August 17, 1999. The

parties dispute whether there were lights on the Type I PFDs. We

can assume there were not. Smith does not know the last time the

life jackets were checked or serviced, nor when the lights on the

Vessel's survival suits were last inspected.

The Vessel's EPIRB was purchased on January 25, 1999, and

Smith does not know when the EPIRB was installed on the Vessel.

The EPIRB was registered on February 16, 1999. A Litton

hydrostatic release was installed for the Vessel's previous EPIRB

on September 7, 1996. Smith does not know whether this was the

same hydrostatic release used for the EPIRB on the Vessel on

October 23, 2000. Smith has no records showing that he purchased

a new hydrostatic release at the time he purchased a new EPIRB in

3
I.e., life jackets.

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January 1999, and no records showing that he purchased a new

hydrostatic release for the EPIRB at any time after September 7,

1996. He also has no records showing that the hydrostatic release

for the EPIRB was ever inspected.

On October 23, 2000, Minott took the Vessel out on a solo

fishing trip. He left port on the Vessel at approximately

3:00 a.m. that day. On October 24, 2000, at 3:36 a.m. the Coast

Guard received an EPIRB distress signal from the Vessel. A second

signal was received thirty-nine minutes later, and the distance

between the two EPIRB hits was approximately eleven nautical miles.

Thus, the speed of the EPIRB device between the first and second

EPIRB signals was approximately seventeen knots. The Vessel could

not have traveled that distance in that amount of time under its

own power. The top speed of the Vessel was only ten knots, and the

speed at which the Vessel could travel if the fishing nets were out

was only 2.3 to 3.5 knots.

The Vessel and its life raft were never found. Captain

Minott's body was recovered and the medical examiner's autopsy

determined the cause of death to be drowning.

Based on the defendant's Statement of Material Facts and

the affidavit of defendant's expert, DuBois, the Magistrate Judge

posited that the likely cause of the sinking of the Vessel was that

it was struck and dragged by another vessel, and that this must

have been a catastrophic event that separated Minott from the

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Vessel before he had a chance to reach any of the safety equipment.

While the time and distance between the two EPIRB signals suggests

that there was an outside force involved in the incident, we simply

do not know what happened or whether Minott had any time to react.

Therefore, the inclusion of this hypothesis, which is not favorable

to the plaintiff, is not appropriately considered in ruling on a

motion for summary judgment for the defendant, and it will not be

considered here.

II. Analysis

A grant of summary judgment is only justified "if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An

issue is "genuine" for purposes of summary judgment if "the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party," and a "material fact" is one which "might

affect the outcome of the suit under the governing law." Hayes v.

Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993)(quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

We review the district court's grant of summary judgment

de novo, and we may affirm the district court's decision on any

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ground supported by the record. Rodríguez v. Smithkline Beecham,

224 F.3d 1, 5 (1st Cir. 2000).

A. The Pennsylvania Rule

Since no one knows precisely what happened to the Vessel

on October 24, 2000, or how Captain Minott drowned, the issue of

burden of proof is critical in this case. In the plaintiff's

appeal from summary judgment, the plaintiff claims that the

district court erred by not applying the Pennsylvania Rule to shift

to the defendant the burden of disproving the causation necessary

to make out a claim of Jones Act negligence or a claim of

unseaworthiness. We disagree.

The Supreme Court in The S.S. Pennsylvania v. Troop, 86

U.S. (19 Wall.) 125, 135 (1873), established a burden shifting

regime for maritime cases where a statutory or regulatory violation

has some causal connection to the injury that occurred. In order

to shift the burden of proof to the defendant, the plaintiff must

meet a two-part test. "If a plaintiff can establish both that the

defendant breached a statutory duty and that the breach is relevant

to the casualty in question, the defendant assumes the burden of

proving that its breach could not have caused plaintiff's damages."

Pan American Grain Mfg. Co., Inc. v. Puerto Rico Ports Authority,

295 F.3d 108, 115-16 (1st Cir. 2002).

In Pennsylvania, the casualty was a collision that

occurred in thick fog between a steamer and a sailing bark. A

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statute to prevent collisions in heavy fog existed at the time,

which mandated that sailing ships, when under way, had to use a

foghorn to signal their presence, and when not underway, a bell.

The bark was in violation of this statute because it was using a

bell to signal its presence instead of a fog horn while it

proceeded slowly through the fog. It was unknown whether the fog

horn would have been easier for the steamer to hear or whether it

would have prevented the collision, but the Supreme Court held that

"when . . . a ship at the time of a collision
is in actual violation of a statutory rule
intended to prevent collisions, it is no more
than a reasonable presumption that the fault,
if not the sole cause, was at least a
contributory cause of the disaster. In such a
case the burden rests upon the ship of showing
not merely that her fault might not have been
one of the causes, or that it probably was
not, but that it could not have been."

The Pennsylvania, 86 U.S. (19 Wall.) at 136.

This appears to be the portion of the Pennsylvania Rule

on which the plaintiff is focused. The Estate alleges that the

Vessel was in violation of four Coast Guard regulations at the time

of Minott's ill-fated solo fishing trip: (1) the Vessel's life raft

was overdue for inspection as of August 17, 2000, in violation of

46 C.F.R. §§ 25.25-11 and 28.140; (2) the life jackets lacked

lights, in violation of sections 25.25-11 and 25.25-13, (3) the

lights on the survival suits were out of date at least as of

October 9, 2000, in violation of sections 25.25-11 and 25.25-13,

and (4) the hydrostatic release on its EPIRB had been overdue for

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servicing since September 7, 1997, in violation of sections 25.25-

11 and 28.140(b).

Assuming arguendo that the Vessel was indeed in violation

of these regulations, there is still another part of the rule which

must be met before the court will shift the burden of proving

causation. That is, the violation or "fault" must have contributed

to the casualty, at least in some degree. Id. Thus, the Supreme

Court conceded in The Pennsylvania that "if it clearly appears that

the fault could have had nothing to do with the disaster, it may be

dismissed from consideration." Id. Since then, the courts,

including this court, have held that a plaintiff must establish a

relationship between the regulatory violation and the injury in

order to invoke the Pennsylvania Rule. In re Complaint of Nautilus

Motor Tanker Co., 85 F.3d 105, 115 (3d Cir. 1996) ("[I]n cases

where there is no clear link between the statutory violation and

the casualty, the party seeking to take advantage of the

[Pennsylvania] Rule has been required to make some showing that the

statutory violation may have had some relation to the accident.");

Candies Towing Co. v. M/V B & C Eserman, 673 F.2d 91, 94 (5th Cir.

1982)(noting that invocation of the Pennsylvania Rule does not

impair the principle that in Jones Act cases, cause in fact is

still necessary); Associated Dredging Co. v. Continental Marine

Towing Co., 617 F. Supp. 961, 968 (E.D. La. 1985) (same).

Otherwise, "a contrary rule, . . . would result in a presumption of

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liability following any statutory violation no matter how remote or

inconsequential such a violation may have been to the subsequent

accident. Neither precedent nor logic compels such a drastic

result." In re Complaint of Nautilus Motor Tanker Co., 85 F.3d at

115.

In Pan American Grain, 295 F.3d, at 116, this court noted

that in addition to establishing evidence of a statutory violation,

it is necessary that the violation be "sufficiently related to the

casualty in question" for the Pennsylvania Rule to apply. In that

case we held that the appellant failed to prove that appellees

violated any statutory duty. We went on to state, however, that

"even if there were credible evidence of a statutory violation by

the appellees, any such violation was not sufficiently related to

the casualty in question." Id.

The district court [in Pan American Grain]
found that the casualty in question was a
direct result of the fact that [the Vessel]
struck obstructions outside of its proper area
of navigation. Additionally, the obstructions
which the [the Vessel] struck were properly
marked on the charts and known to the master
and pilot. Thus, appellant has only its own
imprudence to blame for the predictable
result, and the district court properly
refused to apply the Pennsylvania rule.

Id.

The policy underlying the Pennsylvania Rule aims to

enforce strict compliance with maritime regulations pertaining to

the safe operation of ships. The Pennsylvania, 86 U.S. (19 Wall.)

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at 136; Continental Grain Co. v. Puerto Rico Maritime Shipping

Auth., 972 F.2d 426, 436 (1st Cir. 1992) (applying the Pennsylvania

Rule to the capsizing and sinking of a vessel because "the policy

underlying the rule . . . is to assure strict compliance with rules

pertaining to the safe operation of ships"). The courts have noted

that the Pennsylvania Rule is "a drastic and unusual presumption."

Capt'n Mark v. Sea Fever Corp., 692 F.2d 163, 167 (1st Cir.

1982)(quoting G. Gilmore & C. Black, The Law of Admiralty 494 (2d

ed. 1975)); Wills v. Amerada Hess Corp., 379 F.3d 32, 42 (2d Cir.

2004)(quoting Dir. Gen. of India Supply Mission v. S.S. Maru, 459

F.2d 1370, 1375 (2d Cir. 1972)). As a result, courts have been

reluctant to "extend the Rule's application in ways that would

unmoor it from its animating principles." Id. at 43. Thus, for

example, [courts] have held that application of The Pennsylvania

Rule is "'limited to the violation of a statute intended to prevent

the catastrophe which actually transpired.'" Wills, 379 F.3d at 43

(quoting India Supply Mission, 459 F.2d at 1375). In addition, the

Second Circuit has held that "The Pennsylvania Rule does not apply

where proof that the legal obligation was breached does not lead

'naturally and logically' to the conclusion that the breach caused

the injury." Wills, 379 F.3d at 44 (quoting Wilkins v. Am. Exp.

Isbrandtsen Lines, Inc., 446 F.2d 480, 485 (2d Cir. 1971)).

Here we have a casualty for which it is virtually

impossible to identify the cause. The fishing boat was lost at sea

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and the only evidence of the incident are the EPIRB signals and the

recovery of Mr. Minott's remains. Without additional information

as to what occurred, it is impossible to determine whether Smith's

fault -- the statutory violations -- contributed to the casualty.

Any number of hypotheses can be constructed as to what occurred on

the F/V KATINA ASHLEY the night it was lost. In some of these

scenarios, the statutory violations might be relevant, whereas in

others, they would have had nothing to do with the casualty.

To be sure, the Pennsylvania Rule authorizes some degree

of speculation as to the causes of the accident, but it does not

authorize the degree of speculation urged by the plaintiff here.

The rule would not, for example, in the Pennsylvania case itself,

have authorized the use of the presumption of fault against the

shipping bark based on the fact that a bell was used instead of the

required foghorn but for the fact that the second ship was also in

motion and that "seasonable warning [could] have enabled her to

keep out of the way." 86 U.S. at 136-37. There must be, in other

words, proof that under the circumstances there was a reasonable

possibility that compliance with the regulatory standard would have

prevented the accident. See also Continental Grain, 972 F.2d at

436 (applying Pennsylvania Rule when shifting of free-flowing grain

caused the ship in question to sink, and the regulatory violation

consisted of failure to adequately secure bulk grain). Here, the

plaintiff offers us nothing but speculation at two levels. First,

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the plaintiff asks us to assume that the circumstances of the

accident were such that Captain Minott could have accessed the

lifesaving gear before he drowned. Second, plaintiff asks us to

assume that, as a result of the inspection and other violations,

the lifesaving gear did not perform as required by the Coast Guard

regulations, and that, if it had performed properly, the loss of

life would have been avoided. There has been no showing that there

was a reasonable possibility that compliance with the regulations

would have avoided the loss of life.

The fact is, we do not know what happened, and to rely on

pure speculation to conjure a scenario in which the Pennsylvania

burden-shifting rule should be applied would be a departure from

the limited and cautious manner in which the courts, with good

reason, have traditionally invoked this powerful rule. Therefore,

we are reluctant to impose a penalty for a statutory violation with

no known relation to the loss.

B. Jones Act and Unseaworthiness Causes of Action

We have determined that it is inappropriate to apply the

Pennsylvania Rule to shift the burden of proving necessary

causation for a claim of Jones Act negligence or unseaworthiness.

Nevertheless, these theories of liability might be met independent

of the Pennsylvania Rule. Therefore, we review both the Jones Act

and unseaworthiness causes of action to ensure that no genuine

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issue of material fact exists that would prevent Smith from being

entitled to a judgment as a matter of law.

1. Unseaworthiness

Unseaworthiness is a cause of action that enforces the

shipowner's absolute duty to provide to every member of his crew "a

vessel and appurtenances reasonably fit for their intended use."

Underwriters at Lloyd's v. Labarca, 260 F.3d 3, 7 (1st Cir.

2001)(quoting Mitchell v. Trawler Racer Inc., 362 U.S. 539, 550

(1960)); see also Ferrara v. A. V. Fishing Inc., 99 F.3d 449, 453

(1st Cir. 1996) (quoting Mitchell, 362 U.S. at 550)). While a

plaintiff need not prove negligence to recover under the general

maritime law theory of unseaworthiness, an unseaworthy condition

that is the proximate cause of the injury sustained must be shown.

Ferrara, 99 F.3d at 453 (citing Hubbard v. Faros Fisheries, Inc.,

626 F.2d 196, 199 (1st Cir. 1980).

Here, the Estate has failed to show a triable issue of

proximate cause in support of its unseaworthiness claim. Assuming

that the Estate is correct regarding the existence of safety

violations on board the Vessel, such regulatory violations could

form an "unseaworthy condition." However, in order to make out a

claim of unseaworthiness, the Estate must also prove that these

violations were the "proximate cause" of the injury. The Estate is

unable to prove causation here because no one really knows what

happened to the Vessel and Captain Minott, and thus there is no

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evidence linking the violations to the fact that the Vessel sank or

that Minott drowned. Since "[m]ere allegations, or conjecture

. . . are insufficient to raise a genuine issue of material fact,"

Thomas v. Metropolitan Life Ins. Co., 40 F.3d 505, 510 (1st Cir.

1994), the district court correctly dismissed appellant's

unseaworthiness claim given the dearth of record evidence pointing

to any causation whatsoever.

2. Jones Act Negligence

The plaintiff also failed to show the causation necessary

for a Jones Act negligence claim. The Jones Act provides seamen

with an action for damages at law "where an employer's failure to

exercise reasonable care causes a subsequent injury even where the

employer's negligence did not render the ship unseaworthy."

Ferrera, 99 F.3d at 453 (citing Toucet v. Maritime Overseas Corp.,

991 F.2d 5, 10 (1st Cir. 1993)). "In contrast to unseaworthiness,

a negligence claim under the Jones Act requires a lesser degree of

causation: 'A plaintiff's burden of proving causation under the

Jones Act is featherweight. . . . Liability, therefore, exists if

the employer's negligence contributed even in the slightest to the

plaintiff's injury.'" Gifford v. American Canadian Caribbean Line,

Inc., 276 F.3d 80, 83 n.2 (1st Cir. 2002) (quoting Ferrera, 99 F.3d

at 453).

However, the Estate is incapable of generating a triable

issue even as to this lesser, lighter burden of causation. The

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Estate cannot prove that any of the four asserted regulatory

violations was in any way causally linked to what happened to the

F/V KATINA ASHLEY and Captain Minott, because there is no evidence

of what happened other than the two EPIRB distress signals received

by the Coast Guard and the fact that Captain Minott drowned. See

Magarian v. Hawkins, 321 F.3d 235, 240 (1st Cir. 2003)

("'[C]onclusory allegations, improbable inferences, and unsupported

speculation' are insufficient to defeat summary judgment.")

(quoting Leblanc v. Great American Ins. Co., 6 F.3d 836, 842 (1st

Cir. 1993)).

Therefore, we agree with the district court that the

appellant has failed to show the necessary causation to make out a

claim of Jones Act negligence or unseaworthiness.

C. Ownership Pro Hac Vice and Contributory Negligence

As we have reached the conclusion that the plaintiff was

unable to present a triable issue of fact regarding the causation

required under the two theories of liability undergirding the

Estate's case, we find it unnecessary to address appellee's

affirmative defenses of ownership pro hac vice or contributory

negligence.

III. Conclusion

For the reasons stated above, we affirm the district

court's decision.

Affirmed. Each side to bear its own costs.

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