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
-26-
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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