ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
The United States Magistrate Judge having filed with the Court onAugust 12, 2002, with copies to counsel, his Recommended Decision onDefendants' Motion for Partial Summary Judgment (Docket No. 68) in theabove-entitled matter; and the time for filing objections thereto havingexpired without any objections having been filed; see28 U.S.C. § 636(b)(1); and this Court having reviewed and consideredthe Magistrate Judge's Recommended Decision, together with the entirerecord; and having made a de novo determination of all mattersadjudicated by the Magistrate Judge's Recommended Decision; and thisCourt concurring with the recommendations of the United States MagistrateJudge for the reasons set forth in his Recommended Decision, and havingdetermined that no further proceeding is necessary; it is ORDERED asfollows:
(1) The Recommended Decision of the Magistrate Judge is hereby AFFIRMED.
(2) Defendants' Motion for Partial Summary Judgment is hereby GRANTED.
RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
The plaintiff in this consolidated action, Atlantic Mariner, Inc., hasmade a claim, inter alia, for lost income againstdefendants PrimorskShipping Corporation and A.L.T. Navigation Limited. Plaintiff's Complaint(Docket No. 1 in Docket No. 01-209-P-C) ¶ 10. The defendants movefor partial summary judgment on this claim. I recommend that the courtgrant the motion.
I. Summary Judgment Standard
Summary judgment is appropriate only if the record shows "that there isno genuine issue as to any material fact and that the moving party isentitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "In thisregard, `material' means that a contested fact has the potential tochange the outcome of the suit under the governing law if the disputeover it is resolved favorably to the nonmovant. By like token, `genuine'means that `the evidence about the fact is such that a reasonable jurycould resolve the point in favor of the nonmoving party.'" Navarro v.Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quoting McCarthy v.Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)). The partymoving for summary judgment must demonstrate an absence of evidence tosupport the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317,325 (1986). In determining whether this burden is met, the court mustview the record in the light most favorable to the nonmoving party andgive that party the benefit of all reasonable inferences in its favor.Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir. 2000). Once themoving party has made a preliminary showing that no genuine issue ofmaterial fact exists, the nonmovant must "produce specific facts, insuitable evidentiary form, to establish the presence of a trialworthyissue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1stCir. 1999) (citation and internal punctuation omitted); Fed.R.Civ.P.56(e). "As to any essential factual element of its claim on which thenonmovant would bear the burden of proof at trial, its failure to comeforward with sufficient evidence to generate a trialworthy issue warrantssummary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1stCir. 2001) (citation and internal punctuation omitted).
II. Factual Background
The parties do not dispute the material facts relevant to the motion.On August 5, 2001 the F/V STARBOUND, owned by the plaintiff, was involvedin a collision and sank. Statement of Undisputed Facts in Support ofDefendants' Motion for Partial Summary Judgment (Docket No. 53) ¶1; Petitioner Atlantic Mariner, Inc.'s Opposing Statement of MaterialFacts and Additional Facts ("Plaintiff's SMF") (Docket No. 58) ¶I.1. STARBOUND has not been recovered and was a total loss. Id. ¶2. Prior to her loss, STARBOUND had been engaged in the pair trawlfishery which requires the use of a similarly rigged companion vessel.Plaintiff's SMF ¶ II.1.1 STARBOUND underwent a major refit andconversion in 2000 in order to prepare her for seining and pairtrawling. Id. ¶ II.2. After the loss, the plaintiff searchedunsuccessfully for a replacement vessel. Id. ¶ II.3. Similar vesselsthat were available were too costly and required conversion to make themsuitable for the fishery. Id.
The defendants contend that claims for lost profit or loss of use areunavailable when the vessel in question is a total loss. Defendants'Motion for Partial Summary Judgment, etc. (Docket No. 52) at 3-5.The plaintiff "recognizes that, generally speaking, the applicable measureof damages where a vessel is totally lost is its value at the time of loss,plus interest and the net freight pending at the time," PetitionerAtlantic Mariner, Inc.'s Opposition to the Motion for Partial SummaryJudgment, etc. ("Plaintiff's Opposition") (Docket No. 57) at 3 (internalquotation marks and citation omitted), but argues that an exception tothis rule has been carved out for commercial fishermen, id. at 3-7.
Since at least 1897, the rule has been that the damages for a vesselthat is a total loss are limited to the value of the vessel, withinterest, and the net freight pending at the time of the loss, excludingany claim for possible profits. The Umbria, 166 U.S. 404, 421-22 (1897).This rule has been routinely applied to fishing vessels. E.g., Greer v.United States, 505 F.2d 90, 93 (5th Cir. 1974); B&M Towing Co. v.Wittliff, 258 F.2d 473, 475 (5th Cir. 1958); The Menominee, 125 F. 530,535 (E.D.N.Y. 1903).
The general rule was specifically adopted by the First Circuit in1982. A & S Transp. Co. v. Tug Fajardo, 688 F.2d 1, 2 (1st Cir. 1982)(waste disposal barge). See also DiMillo v. Sheepscot Pilots, Inc.,870 F.2d 746, 751 (1st Cir. 1989).
The plaintiff contends that fishermen are entitled to recover economicdamages because they rely upon a vessel for their livelihood and are"favorites of admiralty." Plaintiff's Opposition at 4-5. However, thecase law cited by the plaintiff in support of this proposition derivesfrom litigation involving environmental damage or damage to a vesselshort of total loss. E.g., Barber Lines A/S/ v. M/V Donau Maru,764 F.2d 50, 51 (1st Cir. 1985); Emerson G.M. Diesel, Inc. v. AlaskanEnter., 732 F.2d 1468, 1472 (9th Cir. 1984); King Fisher Marine Serv.,Inc. v. NP Sunbonnet, 724 F.2d 1181, 1187 (5th Cir. 1984); MillerIndus., Inc. v. Caterpillar Tractor Co., 473 F. Supp. 1147, 1155-56(S.D.Ala. 1979). In none of these opinions is the total-loss rule evenmentioned. These cases are readily distinguishable on their facts. Theonly case cited by the plaintiff in which lost profits were awarded whenthe fishing vessel at issue was a total loss is Barger v. Hanson,426 F.2d 640 (9th Cir. 1970). In that case, while setting forth thegeneral rule for damages when a vessel is a total loss, id. at 641, thecourt upheld an award for the value of the vessel lost and the value ofthe prospective catch, "[u]nder the particular circumstances of thiscase," noting that no interest was awarded and that the plaintiffpromptly mitigated his damages, id. at 642-43. The basis for the NinthCircuit's departure from the general rule is not entirely clear, but inany event the First Circuit rejected Barger in Fajardo, 688 F.2d at 3.
The plaintiff has offered additional facts to support its contentionthat the vessel at issue was unique and particularly costly to replace,entitling it to additional damages, but the First Circuit also rejectedthat argument in Fajardo. Id. at 2. While the vessel at issue in Fajardowas not a commercial fishing vessel, that distinction does not justifydeparture from the general rule in the instant case.
For the foregoing reasons, I recommend that the defendants' motion forpartial summary judgment be GRANTED.
1. The defendants filed no response to the plaintiff's statement ofadditional facts. Pursuant to this court's Local Rule 56(e), those factsare accordingly deemed admitted to the extent supported by the recordcitations given.