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Sawyer Brothers, Inc. v. Island Transporter, LLC

United States Court of Appeals, First Circuit

April 3, 2018

SAWYER BROTHERS, INC.; RYAN SAWYER; and ROSS SAWYER, Plaintiffs, Appellees,
v.
ISLAND TRANSPORTER, LLC; and M/V ISLAND TRANSPORTER (O.N. 1087160), Defendants, Appellants.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. Nancy Torresen, U.S. District Judge]

          Terence G. Kenneally, with whom Clinton & Muzyka P.C. was on brief, for appellants.

          Twain Braden, with whom Leonard W. Langer and Thompson Bowie & Hatch LLC were on brief, for appellees.

          Before Barron, Selya, and Lipez, Circuit Judges.

          LIPEZ, CIRCUIT JUDGE.

         Sawyer Brothers, Inc. hired Island Transporter, LLC to ferry three construction vehicles and their drivers from Rockland, Maine to North Haven, Maine. The M/V ISLAND TRANSPORTER encountered rough seas while traversing Penobscot Bay, and two of the vehicles tipped over onto the vessel's port bulwark. Sawyer Brothers, Inc., and its owners Ryan and Ross Sawyer (collectively, "Sawyer Brothers"), subsequently filed this maritime action, claiming that the ship captain was negligent and seeking damages for property loss and emotional distress.

         Following a bench trial, the district court found in favor of Sawyer Brothers and awarded $257, 154.03 in damages, including $100, 000 for the Sawyers' emotional distress. On appeal, Island Transporter, LLC and M/V ISLAND TRANSPORTER (collectively, "Island Transporter") challenge both the district court's negligence finding and its damages award.

         With the exception of one minor damages issue, we agree with the district court's well-reasoned decision, including its determination on an issue of first impression in our circuit --that a plaintiff within the zone of danger can recover for negligent infliction of emotional distress in maritime cases. We therefore affirm its judgment in substantial part, vacating only one element of the damages award.

         I.

         In December 2014, Sawyer Brothers was hired to construct a foundation in North Haven, an island in Penobscot Bay.[1] It engaged Island Transporter to ferry a cement truck, a Mack truck, and a pickup truck, along with the Sawyers themselves and the cement truck's driver, from Rockland Harbor to North Haven Harbor. The M/V ISLAND TRANSPORTER began its run to North Haven on the morning of December 11, 2014, with Richard Morse as its captain and James McIntyre as its mate.

         The National Oceanic and Atmospheric Administration ("NOAA") provides mariners with weather information by making periodic forecasts and publishing data from weather buoys. For forecasting purposes, NOAA divides the ocean into forecast areas, two of which are relevant to this case. The route taken by the M/V ISLAND TRANSPORTER that morning fell within the southern portion of the Penobscot Bay area. The Coastal Waters area from Stonington to Port Clyde ("Coastal Waters") borders the Penobscot Bay area to the south.

         At the time the vessel departed -- approximately 8:30 a.m. -- the most recent forecast from NOAA predicted southerly winds of 10-20 knots with waves of 2-4 feet for the Penobscot Bay area. For the Coastal Waters area, NOAA predicted significantly higher waves of 8-11 feet, with wind gusts up to 30 knots. These predicted wave heights represent the average of the highest one third of all waves -- a measurement known as "significant wave height." Thus, when a forecast predicts waves of 2-4 feet, it is reasonable to expect some waves to be higher than 4 feet.

         NOAA also publishes data from weather buoys maintained by the North Eastern Regional Association of Coastal Ocean Observing Systems. One such buoy, known as the F01 buoy, is proximate to the route taken by the M/V ISLAND TRANSPORTER. Data from the buoy is published hourly online and on the radio. At 7:30 a.m. on December 11, 2014, the buoy recorded a significant wave height of 6.3 feet, with 10.7 seconds between waves, and wind speeds of 18.7 knots. At 8:30 a.m., the significant wave height was 6.7 feet, with 5.3 seconds between waves. By 9:30 a.m., the significant wave height had increased to 7.1 feet, with 5.3 seconds between waves.

         Captain Morse relied on the forecast for the Penobscot Bay area the morning of December 11, but disregarded the Coastal Waters forecast because his route did not cross into that area. It was part of Captain Morse's normal routine to check the F01 buoy's data, though he has no specific recollection of checking the buoy's data on that particular morning. In any event, Captain Morse determined that the forecast allowed for safe passage to North Haven, and he arrived at Rockland Harbor to load the vehicles and passengers.

         Once aboard, Ryan Sawyer sat in Sawyer Brothers' 1987 Mack truck, which was situated at the vessel's bow, with the truck's cabin facing forward. The truck was mounted with a 1992 Copma knuckleboom crane, capable of extending 68 feet and lifting 2, 400 pounds. Ross Sawyer sat in Sawyer Brothers' pick-up truck, which was located in the middle of the vessel, facing the stern. Dana Martin, who is not a party to this suit, sat in his loaded cement truck, which was situated at the vessel's stern, with the truck's cabin facing forward toward the bow. Mate McIntyre placed chocks at all three vehicles' wheels to help stabilize them for the trip. He did not take the additional precaution of chaining the vehicles to the "D rings" located on the vessel's deck.

         Conditions were mild as the vessel left the dock. Once the ship cleared the protected waters of Rockland Harbor and entered the stretch of open water between the mainland and North Haven, calm seas gave way to a far more tumultuous environment. Video captured on Ryan Sawyer's cellphone shows the vessel's bow dipping up and down, as sizeable waves crash aboard, peppering the Mack truck's windshield with sheets of ocean water. As Ryan Sawyer continued to film, a sequence of waves hit the starboard side of the ship and caused the truck to tip toward the vessel's port side until the vehicle struck the port bulwark. The truck rested diagonally against the bulwark, with the driver-side door angled downward and the passenger-side door angled upward. Ryan Sawyer feared that he would be trapped in the truck's cabin as it went overboard, or as the ship capsized. After a minute or two, he was able to escape the cabin by standing on the side of the driver's seat, pushing open the passenger-side door, lifting himself out of the cabin, and jumping down to the deck.

         At the other end of the vessel, Dana Martin was sitting inside the cement truck as it also tipped over, striking the port-side bulwark, and resting against it diagonally.[2] Martin honked the truck's horn to alert everyone to the situation, and then managed to exit the truck's cabin through its driver-side door. Ross Sawyer watched the scene unfold and feared that the cement truck and the Mack truck would tip overboard with Martin and his brother trapped inside. He also feared that the ship would capsize, and he would drown.

         Although the weight of the vehicles against the port-side bulwark caused the M/V ISLAND TRANSPORTER to develop a significant list of 37 degrees, Captain Morse navigated the ferry to North Haven harbor without further incident. The Sawyers managed to walk away physically uninjured, but their Mack truck sustained enough damage that their insurer would later deem it a total loss.

         Sawyer Brothers filed suit against Island Transporter in August 2015, alleging negligence and seeking damages for its Mack truck, lost profits, damaged construction supplies, and emotional distress. Following a three-day bench trial, the district court found that Captain Morse was negligent in failing to lash down the Mack truck and the cement truck. It awarded Sawyer Brothers $126, 859.03 for replacing the Mack truck, $5, 025 for damaged plywood panels that the Mack truck was carrying, $25, 270 for lost profits, and $100, 000 for emotional distress. Island Transporter now appeals the district court's finding of negligence and each damages award.

         II.

         A. Standard of Review

         Island Transporter challenges the subsidiary factual findings upon which the district court based its negligence determination. Where a district court conducts a bench trial and serves as the factfinder, we review its factual findings for clear error. See N. Ins. Co. of N.Y. v. Point Judith Marina, LLC, 579 F.3d 61, 67 (1st Cir. 2009); Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 181 (1st Cir. 1997). Accordingly, we will set aside a trial court's factual findings only if "after careful evaluation of the evidence, we are left with an abiding conviction that those determinations and findings are simply wrong." N. Ins. Co. of N.Y., 579 F.3d at 67 (quoting Jackson v. United States, 156 F.3d 230, 232-33 (1st Cir. 1998)).

         Island Transporter's challenge to the district court's damages award rests on both factual and legal grounds. We review the district court's factual determinations in fixing damages for clear error. See La Esperanza de P.R., Inc. v. Perez y Cia. de P.R., Inc., 124 F.3d 10, 21 (1st Cir. 1997); Reilly v. United States, 863 F.2d 149, 166 (1st Cir. 1988). We review its legal conclusions de novo. See Lawton v. Nyman, 327 F.3d 30, 42 (1st Cir. 2003) ("The district court's method of calculating damages in this case is essentially a conclusion of law, to which we give full review.").

         B. Negligence

         While the familiar elements of negligence -- duty, breach, causation, and damages -- apply in maritime cases, we look to "the principles of maritime negligence" to provide substance to each element. La Esperanza de P.R., Inc., 124 F.3d at 17; see also Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000) (reciting the elements of negligence in a maritime case). Thus, under maritime negligence law, "a shipowner owes the duty of exercising reasonable care towards those lawfully aboard the vessel who are not members of the crew." Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959). A private carrier, such as Island Transporter, also assumes a duty "to exercise due care in the protection of the goods committed to [its] care." Commercial Molasses Corp. v. N.Y. Tank Barge Corp., 314 U.S. 104, 110 (1941). "Under this standard, the degree of care required must be in proportion to the apparent risk." Muratore v. M/S Scotia Prince, 845 F.2d 347, 353 (1st Cir. 1988). A captain breaches his duty of reasonable care "if he 'makes a decision which nautical experience and good seamanship would condemn as inexpedient and unjustifiable at the time and under the circumstances.'" DiMillo v. Sheepscot Pilots, Inc., 870 F.2d 746, 748 (1st Cir. 1989) (alteration omitted) (quoting The Lizzie D. Shaw, 47 F.2d 820, 822 (3d Cir. 1931)). We have long recognized that, for a captain, the duty of reasonable care clearly includes a "duty to monitor and take into account weather conditions." Id. The district court found that Captain Morse breached his duty of care by failing to utilize the M/V ISLAND TRANSPORTER'S D-rings to lash down the construction vehicles. This negligence determination was based in part upon the district court's subsidiary finding that the weather conditions that caused the incident were foreseeable. More specifically, the court determined that the weather information available to Captain Morse would have apprised him of a likelihood of rough seas. The district court also found that the incident was not caused by two unforeseeable rogue waves.

         Island Transporter challenges both of these subsidiary factual findings. It asserts that the weather information available to Captain Morse would not have apprised him of rough seas along his route, and maintains that the incident was caused by two unpredictable rogue waves. Under its view of the facts, Island Transporter argues that Captain Morse did not breach his duty of care because the incident was unforeseeable.

         1. Available Weather Information

         The district court determined that Captain Morse could have reasonably anticipated 5-7.5 foot seas on the voyage. It reached this conclusion by averaging the 2-4 foot seas forecasted for the Penobscot Bay area and the 8-11 foot seas forecasted for the Coastal Waters area. Island Transporter believes this calculation was clearly erroneous because the M/V ISLAND TRANSPORTER'S route remained entirely within the Penobscot Bay area. Thus, according to Island Transporter, only that area's forecast was relevant to Captain Morse. Given the much calmer 2-4 foot predicted seas, he could not have reasonably foreseen the conditions the M/V ISLAND TRANSPORTER would encounter.

         Island Transporter's position overlooks an abundance of testimony suggesting that the Coastal Waters forecast was relevant to assessing the sea conditions along the vessel's route. Though the route fell entirely within Penobscot Bay, it came close to the northern border of the Coastal Waters area. The wind on the morning of December 11 was blowing from a southerly direction; that is, from the open seas of the Coastal Waters area toward the Penobscot Bay area. Maine State Ferry Captain Almer Dinsmore testified that, given the direction of the wind and the route's proximity to the Coastal Waters area, the Coastal Waters forecast was highly relevant to assessing the predicted weather conditions along the route. He opined that it would have been unreasonable in those circumstances for a ship captain to rely solely on the Penobscot Bay forecast.

         Other witnesses echoed this sentiment. Both Mate McIntyre and Maine State Ferry Service Port Captain Daniel McNichol represented that they rely on both areas' forecasts when they sail comparable routes. Island Transporter's own weather expert testified that it would be unreasonable to think there would be an abrupt transition -- from 2-4 foot seas in Penobscot Bay to 8-11 foot seas in the Coastal Waters area -- right at the boundary of the two zones.[3] Island Transporter's nautical expert similarly testified on cross examination that it would be a mistake to rely solely on the Penobscot Bay forecast. Even Captain Morse conceded that it is generally prudent to rely on more than one piece of weather information in making navigational decisions, and that the Coastal Waters forecast is in some circumstances relevant to the Rockland-to-North Haven route.

         Given this testimony, the district court's finding that the information available to Captain Morse would have apprised him of a likelihood of rough conditions did not rest on a clearly erroneous view of the facts. To the contrary, the record contains ample testimony to support the court's conclusion that the Coastal Waters area forecast was relevant to predicting the weather conditions along the M/V ISLAND TRANSPORTER'S route.

         2. The Rogue Wave Theory

         Island Transporter challenges the district court's finding that the incident was not caused by two "rogue waves." A rogue wave is classified as such if it is more than twice the significant wave height. Although the record does not reveal precisely how often rogue waves occur, expert testimony established that so-called "extreme waves" -- those reaching about double the significant wave height -- occur ...


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