Trupiano v. Captain Gus & Bros. ( 1994 )

USCA1 Opinion

          December 15, 1994     [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

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          No. 94-1690

                                   THOMAS TRUPIANO,

                                Plaintiff, Appellant,

                                          v.

                            CAPTAIN GUS & BROTHERS, INC.,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Robert B. Collings, U.S. Magistrate Judge]
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                                        Before

                                Selya, Circuit Judge,
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                            Coffin, Senior Circuit Judge,
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                              and Stahl, Circuit Judge.
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               Joseph M.  Orlando, with whom  Orlando &  Associates was  on
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          brief, for appellant.
               Thomas  J. Muzyka, with whom Robert E. Collins and Clinton &
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          Muzyka, P.C. were on brief, for appellee.
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                    Per Curiam.  Following  an evidentiary hearing in which
Per Curiam.
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          a magistrate judge awarded plaintiff-appellant Thomas Trupiano, a

          seaman,  maintenance and  cure,1 Trupiano  appealed.   His appeal

          presents what amounts to  a single factbound issue:   whether the

          court below erred in  failing to hold defendant-appellee, Captain

          Gus  & Bros.,  Inc., liable  for punitive damages  and attorneys'

          fees in consequence of its refusal to pay maintenance and cure to

          Trupiano when and as due.

                    Plaintiff,  of  course,  had   the  burden  of  proving

          defendant's liability for these imposts by showing that defendant

          was   "callous,   willful,   or   recalcitrant   in   withholding

          [maintenance and cure] payments."   Robinson v. Pocahontas, Inc.,
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          477 F.2d 1048, 1051  (1st Cir. 1973).   Given that burden,  given

          the  conflicted nature  of the  evidence, given  the gaps  in the

          available information that existed  up to the time of  trial, and

          given,  especially,  the  deferential  standard  of  review  that

          pertains,  see, e.g., DiMillo v. Sheepscot Pilots, Inc., 870 F.2d
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          746, 749 (1st Cir. 1989) ("In maritime cases, we review factbound

          findings  stemming  from a  bench  trial in  accordance  with the

          ``clearly erroneous'  principle of  Fed. R.  Civ. P.  52(a)."), we

          cannot  say that the district court clearly erred in finding that

          defendant's failure  to make  timely payments of  maintenance and

          cure,  though eventually  adjudged to  be without  adequate legal

          basis, did  not justify the imposition of punitive damages and/or

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               1The  evidentiary hearing  followed a  jury trial  on issues
          involving  claims of  unseaworthiness  and Jones  Act  liability.
          Those issues are not before us.

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          attorneys' fees.  After all, when there are two plausible sets of

          inferences that can be  drawn from the facts, the  trier's choice

          between them cannot be  clearly erroneous.  See Anderson  v. City
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          of  Bessemer City, 470 U.S. 564, 573-74 (1985); Cumpiano v. Banco
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          Santander P.R.,  902 F.2d 148,  152 (1st  Cir. 1990).   So it  is
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          here.

                    We need go no further.2   Because it "clearly appear[s]

          that  no substantial question  is presented" by  this appeal, 1st

          Cir. R. 27.1, the judgment below can be summarily



                    Affirmed.  Costs to appellee.
Affirmed.
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               2To be  sure appellant also  complains that the  lower court
          improperly denied his  motion to amend in order to  add the boat-
          owner's insurer as a party  defendant.  We think that ruling  was
          well  within the  magistrate's  discretion.   In  any event,  the
          insurer's status as a party obviously would not have affected the
          outcome either of the case or of the appeal.

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