Southworth v. F ( 1993 )


Menu:
  •                 UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 92-1693
    SOUTHWORTH MACHINERY CO., INC.,
    Plaintiff, Appellee,
    v.
    F/V COREY PRIDE, ET AL.,
    Defendants, Appellees,
    ALL TRAWL, INC. AND ROBERT ANDERSON,
    Defendants, Appellants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Marianne B. Bowler, U.S. Magistrate Judge]
    Before
    Selya, Cyr and Boudin, Circuit Judges.
    John H. Ronan for appellants.
    D.  Alice  Olsen with  whom Joseph  A. Regan,  Debra A.  Joyce and
    Morrison, Mahoney and Miller were on brief for appellees.
    June 2, 1993
    BOUDIN, Circuit Judge.   On October 19, 1987, Southworth
    Machinery, Inc. ("Southworth") filed in the district court an
    admiralty  suit in  rem against  the vessel  F/V Corey  Pride
    ("Corey Pride") and in personam against All Trawl, Inc. ("All
    Trawl"),  Robert  Anderson, and  James  Corey  for breach  of
    contract.   All Trawl  is a Massachusetts  commercial fishing
    corporation which owns  the Corey Pride  and Anderson is  All
    Trawl's president.  James Corey is identified in Southworth's
    complaint as either an agent or principal of All Trawl.
    Southworth sought to recover a balance of $12,148.28 due
    for  its assembly  and installation  of a  refurbished diesel
    engine  for the  Corey  Pride pursuant  to  an oral  contract
    between itself and  Anderson.  Shortly  after the engine  was
    installed  on the  vessel by  a Southworth  employee, a  fire
    broke out  on the Corey  Pride while it was  out at sea  on a
    fishing expedition.   Claiming  that the  fire was caused  by
    defective  engine parts  and faulty  installation, defendants
    Corey  Pride,  All Trawl,  and  Anderson filed  counterclaims
    against Southworth for breach  of contract, breach of express
    and  implied  warranties,  and breach  of  the  Massachusetts
    Consumer  Protection Act,  Mass.  Gen. L.  ch. 93A  ("chapter
    93A").  An additional claim for negligence was later asserted
    at trial.
    Southworth's  claims against  Anderson  and James  Corey
    were dismissed  without  objection  prior to  trial.    As  a
    -2-
    result,  James  Corey  was out  of  the  case altogether  and
    Anderson continued only as  a counterclaimant.  The remaining
    claims were tried in December  1990 before a magistrate judge
    by  consent of the  parties.   28 U.S.C.    636(c).    At the
    conclusion  of the  trial,  the magistrate  judge found  that
    Southworth had  breached express and implied  warranties, its
    duty of care, and chapter 93A in connection with its sale and
    installation of  the engine,  and that these  breaches caused
    the  fire   aboard  the  Corey  Pride.     Specifically,  the
    magistrate  judge  found  that  the  fire  was  caused  by  a
    defective makeshift oil pressure line connected to the engine
    and installed by Southworth's agent.   All Trawl and Anderson
    were awarded  $38,509 in  damages together with  interest and
    costs.
    The magistrate judge declined to  award multiple damages
    under chapter 93A  for willful or  knowing violations of  the
    statute.    The  magistrate  judge  also  declined  to  award
    attorney's fees  to All Trawl and Anderson under chapter 93A,
    concluding  that such  an award  would conflict  with general
    federal maritime law  under which the parties bear  their own
    legal  fees.    Lastly,  the magistrate  judge held  that All
    Trawl was liable to Southworth for the $12,148.28 balance due
    under  the contract  for the  purchase of  the engine,  which
    -3-
    remained in workable condition  after the fire and  which the
    Corey Pride continued to use.1
    Judgment  was entered  by separate  order on  January 3,
    1992.   In this appeal,  All Trawl and  Anderson contend that
    the magistrate  judge erred  in disallowing multiple  damages
    and attorney's  fees  and  in  holding All  Trawl  liable  to
    Southworth for the  balance due under  the purchase and  sale
    contract.   Southworth has not appealed  the judgment against
    it.
    We  address  at the  outset  a  question concerning  our
    appellate  jurisdiction.     The  judgment  entered   by  the
    magistrate on  January 3, 1992,  did not formally  dispose of
    all of the  claims against all of the parties.   See  Fed. R.
    Civ.  P. 54(b).  Accordingly,  this court issued  an order to
    the  parties  raising  the  subject of  our  jurisdiction  to
    consider this appeal.   Southworth responded with a motion to
    dismiss  the  appeal,  contending  that the  judgment  was  a
    nonfinal and hence unappealable order.  See 28 U.S.C.   1291.
    Our subsequent  review of  the record has  revealed that
    certain  claims  omitted from  the  January  3 judgment  were
    dismissed prior to trial  and others were disposed of  in the
    magistrate judge's written decision.  The "separate document"
    1The magistrate judge also held that Anderson was liable
    for the balance of the  purchase price.  At oral argument  in
    this  court, Southworth  conceded that  the judgment  against
    Anderson was incorrect since  all claims against Anderson had
    been dismissed before trial.
    -4-
    rule does  not defeat  appellate jurisdiction where  a timely
    appeal is filed and  the parties do not suffer  any prejudice
    from the absence of a  separate document entering judgment on
    claims  that were  clearly disposed of  in an  earlier order.
    Smith v.  Massachussetts Dep't of Correction,  
    936 F.2d 1390
    ,
    1393-94   (1st   Cir.   1991);      Smith-Bey   v.   Hospital
    Administrator, 
    841 F.2d 751
    , 756 (7th Cir. 1988).
    The  only seemingly  unresolved  matter that  may be  of
    lingering  interest to  the  parties is  Southworth's in  rem
    claim against the  Corey Pride  under a maritime  lien.   The
    magistrate judge's opinion did  not explicitly address the in
    rem  claim.  However, under  28 U.S.C.    1292(a)(3), we have
    jurisdiction over interlocutory decrees in admiralty cases as
    long as the order appealed from finally determines the rights
    and  liabilities of  the  parties on  a  particular claim  or
    issue.   See  Martha's Vineyard  Scuba Headquarters,  Inc. v.
    Unidentified,  Wrecked &  Abandoned  Steam Vessel,  
    833 F.2d 1059
    ,  1062-64 (1st Cir. 1987).  Since the claims involved in
    this  appeal were  conclusively  decided  by  the  magistrate
    judge, we have jurisdiction over them.
    Turning  to  the  merits,  we  affirm  the  magistrate's
    disallowance of multiple damages under chapter 93A.   Section
    11 of chapter 93A governing business disputes provides for up
    to three times the  amount of actual damages for  "willful or
    knowing" violations  of section 2, which  prohibits unfair or
    -5-
    deceptive trade  practices.2  Anderson and  All Trawl premise
    their claim  for multiple damages on  Southworth's failure to
    adequately  investigate the cause of  the fire and  to make a
    reasonable   settlement  offer.     This  failure   to  fully
    investigate, say  Anderson and  All Trawl, constituted  a bad
    faith response to their demand for relief under chapter 93A.
    It  is unclear  whether section  11 permits  recovery of
    multiple damages  under  such a  theory  where bad  faith  is
    proved.   Section 9  provides for  multiple  damages where  a
    demand is refused in bad faith, but section 9 is by its terms
    inapplicable (see note 2,  above) and section 11 has  no such
    counterpart language.  Massachusetts case  law is murky as to
    whether  the bad  faith  refusal  concept  can be  read  into
    section 11.  Glickman v. Brown, 
    21 Mass. App. Ct. 229
    , 238 n.
    7, 
    486 N.E.2d 737
    , 743 n. 7 (1985), expressly holds  that the
    bad faith  response provision "has no  application" to claims
    governed by section 11.  On the other hand, the Massachusetts
    Supreme Judicial  Court has  employed language that  may look
    2Section 11  applies to claims brought  by "[a]ny person
    who engages in  the conduct of any trade or  commerce and who
    suffers any loss  of money or property  . . . as  a result of
    [unfair  competition or  unfair  or deceptive  practices]  by
    another person  who engages in any trade or commerce . . . ."
    Mass.  Gen.  L. ch.  93A,     11.   Section  9,  which has  a
    different  multiple  damage   provision,  applies  to  "[a]ny
    person, other than a person entitled to bring an action under
    section eleven  of this chapter  . . .  ."  Mass. Gen.  L. ch
    93A,   9(1).  There is no question that the parties here were
    acting in a  business context.  At trial,  Anderson testified
    that he purchased the engine for business reasons.
    -6-
    the other way.   International Fidelity  Ins. Co. v.  Wilson,
    
    387 Mass. 841
    , 857, 
    443 N.E.2d 1308
    , 1318 (1983).
    We  need not  pursue  the issue  because the  magistrate
    judge  found that Southworth did not act  in bad faith.   The
    magistrate  judge agreed  that Southworth  did not  conduct a
    full investigation  of the accident when  rejecting liability
    but found that this  was due to its reasonable  belief, after
    some  amount of investigation, that the cause of the fire was
    electrical.   Shortly  after  receiving notice  of the  fire,
    Southworth sent its employee who had  installed the engine to
    investigate.   The employee did not observe any problems with
    the  engine and reported that the fire was possibly caused by
    an electrical  failure.   An electrician not  associated with
    Southworth had installed temporary  wiring on the Corey Pride
    days before the fire broke out.
    All  Trawl's own investigator  determined that  the fire
    was  caused by oil leaks  from the engine  but Southworth not
    surprisingly  chose  to rely  on  its employee's  assessment.
    Based on  this evidence  the magistrate judge  concluded that
    Southworth's  belief that it was not responsible for the fire
    was  "not  unfounded,"  and   thus  its  failure  to  conduct
    additional  investigation did  not warrant  multiple damages.
    The magistrate  judge's finding  is supported by  the record,
    has not  been challenged on  appeal, and  therefore ends  the
    matter.
    -7-
    We also affirm the magistrate judge's determination that
    All  Trawl is liable for  the unpaid portion  of the purchase
    price of the  engine.  Because the engine was  not damaged by
    the  fire  aside from  some  minor paint  peeling,  All Trawl
    decided to  keep the engine for  use on the Corey  Pride.  At
    trial, Anderson  testified that the  engine was still  in use
    and that he was satisfied with its operation.   Under section
    2-607  of the Uniform  Commercial Code,3 a  buyer who accepts
    goods is  liable for the  contract price, although  the buyer
    may recover damages resulting  from any defect.   4 Anderson,
    Uniform Commercial Code    2-607:15 (3d ed. 1983); Micromedia
    v. Automated  Broadcast Controls,  
    799 F.2d 230
    ,  235-36 (5th
    Cir. 1986).
    All Trawl argues that the contract is a service contract
    and  therefore is not governed  by the policies  of the UCC's
    sale of goods  provisions.  The  magistrate judge found  that
    the  predominant purpose of  the contract  was to  provide an
    engine and that the supply of labor was only incidental.  See
    Cambridge  Plating Co.,  Inc.  v. Napco,  Inc., No.  92-2242,
    3Although   the   contract  (involving   the   sale  and
    installation  of a  rebuilt  engine for  use  on an  existing
    commercial  vessel)  is  maritime  in  nature  and  therefore
    governed   by  general  federal  maritime  law,  1  Friedell,
    Benedict  on Admiralty    186-87  (7th ed. 1993),  the UCC is
    considered  a source  for federal  admiralty law.   Interpool
    Ltd.  v.  Char  Yigh Marine, S.A.,  
    890 F.2d 1453
    , 1459 (9th
    Cir. 1989), amended,  
    918 F.2d 1476
     (9th Cir.  1990);   Clem
    Perrin Marine Towing, Inc. v. Panama Canal Co., 
    730 F.2d 186
    ,
    189 (5th Cir.), cert. denied, 
    469 U.S. 1037
     (1984).
    -8-
    slip. op. at 7 (1st Cir., April 22, 1993).   In any event, by
    retaining  the engine and obtaining damages for the harm done
    through misinstallation,  All Trawl has been  restored to the
    position  it  would  have  been  in  had  the  contract  been
    performed.  This  is the  general aim of  suits for  contract
    damages, Farnsworth, Contracts   12.8, at 871 (2d  ed. 1990),
    and there  is no reason why  All Trawl should be  placed in a
    position  even   better  than  it  would   have  obtained  if
    Southworth had flawlessly performed the original contract.
    The  remaining  issue  concerns  attorney's  fees  under
    chapter  93A.   Prevailing  claimants under  chapter 93A  are
    ordinarily  entitled to  recover  reasonable attorney's  fees
    incurred  in connection  with the chapter  93A claim.   Mass.
    Gen. L. ch. 93A,   11.   Although finding that Southworth had
    breached chapter 93A, the  magistrate judge declined to award
    attorney's  fees.  She  reasoned  that such  an  award  would
    conflict with  federal maritime  law under which  the parties
    pay their  own fees absent bad faith or oppressive litigation
    tactics. See Templeman  v. Chris Craft  Corp., 
    770 F.2d 245
    ,
    250 (1st Cir.) cert. denied, 
    474 U.S. 1021
     (1985); Goodman v.
    1973 26 Foot Trojan Vessel, 
    859 F.2d 71
    , 74 (8th Cir. 1988).
    Under  the  "saving  to  suitors" clause,  28  U.S.C.
    1331(1), claimants in an admiralty case are not restricted to
    maritime  relief but  may  also pursue  remedies provided  by
    state law.  E.g.,  Ellenwood v. Exxon Shipping Co.,  984 F.2d
    -9-
    1270,  1279 (1st Cir. 1993).   However, "the  extent to which
    state  law  may  be  used  to  remedy  maritime  injuries  is
    constrained  by  a  so-called ``reverse-Erie'  doctrine  which
    requires that the substantive remedies afforded by the States
    conform to governing federal  maritime standards."   Offshore
    Logistics,  Inc. v.  Tallentire,  
    477 U.S. 207
    , 223  (1986).
    Thus,  where the  subject-matter falls  within the  admiralty
    jurisdiction, state law may ``supplement' federal maritime law
    but may not directly contradict it.  Gilmore & Black, The Law
    of Admiralty    1-17,  at 49-50  (2d  ed. 1975);   Austin  v.
    Unarco Industries, Inc., 
    705 F.2d 1
    , 6 n. 1 (1st Cir.), cert.
    dismissed, 
    463 U.S. 1247
     (1983).
    Pertinently, in Templeman, 770 F.2d at 250, we held that
    a Puerto  Rico rule  providing for attorney's  fees, although
    part  of  the  substantive   law  of  the  Commonwealth,  was
    inapplicable in an  action cognizable in admiralty.  This was
    so,  we noted, even though the underlying cause of action was
    created  by Puerto  Rico law  and federal  court jurisdiction
    happened to be based  on diversity.  Accord Sosebee  v. Rath,
    
    893 F.2d 54
     (3d  Cir. 1990) (Virgin  Islands attorney's fees
    statute; territorial jurisdiction);   1 Benedict on Admiralty
    114, at  n.2 (1993  Supp.) (approving Sosebee).   See  also
    Carey  v. Bahama Cruise Lines, 
    864 F.2d 201
    , 206-08 (1st Cir.
    1988)  (Massachusetts bar  to recovery  if plaintiff  is more
    -10-
    than  50%  negligent incompatible  with  admiralty  rule that
    contributory negligence only mitigates damages).
    State  statutes   providing  for  attorney's   fees  may
    sometimes be given effect  in admiralty cases, notably, where
    the attorney's fees are awarded incident to a dispute that is
    not normally a subject of maritime law.  For example, in Pace
    v.  Insurance Company of North  America, 
    838 F.2d 572
    , 578-79
    (1st Cir. 1988), we  held that maritime law did not preempt a
    Rhode Island cause of action allowing recovery of damages and
    attorney's  fees for an insurer's bad faith refusal to pay or
    settle  claims; the refusal to settle claims is normally left
    untouched by maritime  law.  More recently,  in Ellenwood, we
    held  that admiralty  law  likewise did  not foreclose  state
    claims based upon state handicap discrimination statutes, for
    maritime  law  did  not   address  the  subject  of  handicap
    discrimination.  984 F.2d at 1280.
    Turning  to the  case  at hand,  Southworth's  liability
    under chapter 93A was  not predicated on any ground  novel to
    or unaddressed by maritime law.  Rather, Southworth was found
    liable as a result of its breach of  its express warranty for
    parts and workmanship  incident to  the repair of  a ship,  a
    standard contractual breach to  which maritime law has always
    applied.    See Zych  v.  Unidentified,  Wrecked &  Abandoned
    Vessel, 
    941 F.2d 525
    , 531 (7th Cir. 1991).  The conduct found
    to violate  chapter 93A  falls squarely  within the focus  of
    -11-
    existing  maritime  law,  and  chapter 93A's  attorney's  fee
    provision,  being inconsistent with  maritime law,  cannot be
    applied in this case.
    Affirmed.