USCA1 Opinion

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
________________
________________
_______________
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"),
contract.

Robert

Anderson, and

All Trawl

corporation which owns

Trawl's president.

James

Corey

is a Massachusetts
the Corey Pride

for breach

of

commercial fishing
and Anderson is

All

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

engine

for the

and installation
Corey

between itself and

Pride pursuant

Anderson.

installed

on the

broke out

on the Corey

defective
Corey

Claiming

implied

Consumer
93A").

that the

and faulty

All Trawl,

and

warranties,

was

employee, a

fire

out at sea

on a

fire was caused

by

installation, defendants

Anderson filed

counterclaims

of contract, breach of express

and breach

Protection Act,

contract

after the engine

a Southworth

against Southworth for breach

and

an oral

Pride while it was

engine parts

Pride,

refurbished diesel

to

Shortly

vessel by

fishing expedition.

of a

Mass.

of

the

Gen. L.

Massachusetts

ch. 93A

("chapter

An additional claim for negligence was later asserted

at trial.
Southworth's
were dismissed

claims against

without

objection

Anderson

and James

prior to

trial.

Corey
As

-2-2-

result,

James

Corey

was out

Anderson continued only as

of

the

case altogether

a counterclaimant.

claims were tried in December

and

The remaining

1990 before a magistrate judge

by

consent of the

conclusion

parties.

of the

Southworth had

trial,

28 U.S.C.

636(c).

the magistrate

At the

judge found

breached express and implied

that

warranties, its

duty of care, and chapter 93A in connection with its sale and
installation of
the

fire

magistrate

the engine,

and that these

aboard

the

Corey

judge

found

that

breaches caused

Pride.

Specifically,

the

was

fire

caused

the
by

defective makeshift oil pressure line connected to the engine

and installed by Southworth's agent.
were awarded

$38,509 in

All Trawl and Anderson

damages together with

interest and

costs.
The magistrate judge declined to
under chapter 93A
statute.

The

attorney's fees
concluding

for willful or
magistrate

fees.

knowing violations of

judge

also

declined

to

the
award

to All Trawl and Anderson under chapter 93A,

that such

federal maritime law

legal

award multiple damages

an award

would conflict

with general

under which the parties bear

Lastly,

the magistrate

judge held

their own
that All

Trawl was liable to Southworth for the $12,148.28 balance due

under

the contract

for the

purchase of

-3-3-

the engine,

which

remained in workable condition

after the fire and

which the

Corey Pride continued to use.1

Judgment
1992.

was entered

In this appeal,

by separate

All Trawl and

the magistrate

judge erred

and attorney's

fees

Southworth for the

contract.

and

order on

January 3,

Anderson contend that

in disallowing multiple
in

holding All

balance due under

Trawl

damages

liable

the purchase and

Southworth has not appealed

to
sale

the judgment against

it.
We

address

appellate

at the

outset

jurisdiction.

The

magistrate on
all of the
Civ.
the

the

did not formally

Accordingly,

raising

the

appeal,

this court issued

subject of

Our subsequent
claims

our

our

by

the

dispose of
See
___

Fed. R.

an order to

jurisdiction

to

Southworth responded with a motion to

contending

that the

nonfinal and hence unappealable order.

certain

entered

claims against all of the parties.

consider this appeal.

dismiss

question concerning

judgment

January 3, 1992,

P. 54(b).
parties

review of

omitted from

dismissed prior to trial

judgment

See 28 U.S.C.
___

the record has

the

January

was

1291.

revealed that

3 judgment

and others were disposed of

were
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.
-4-4-

rule does

not defeat

appeal is filed and

appellate jurisdiction where

the parties do not suffer

from the absence of a

claims

that were

a timely

any prejudice

separate document entering judgment on

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
lingering

only seemingly
interest to

claim against the

unresolved
the

matter that

parties is

Corey Pride

magistrate judge's opinion did

may be

of

Southworth's in rem
_______

under a maritime

lien.

The

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

issue.

See
___

the

parties on

particular claim

Martha's Vineyard Scuba Headquarters, Inc. v.

____________________________________________

Unidentified, Wrecked & Abandoned Steam Vessel,

_________________________________________________
1059,
this

or

1062-64 (1st Cir. 1987).

appeal were

conclusively

833

F.2d

Since the claims involved in

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
knowing" violations

amount of actual damages for

of section 2, which

"willful or

prohibits unfair or

-5-5-

deceptive trade
their claim

practices.2

Anderson and

for multiple damages on

All Trawl premise

Southworth's failure to

adequately

investigate the cause of

reasonable

settlement

investigate, say

offer.

Anderson and

the fire and

This

to make a

failure

to

fully

All Trawl, constituted

a bad

faith response to their demand for relief under chapter 93A.

It

is unclear

multiple damages
proved.

whether section

under

Section 9

such a

provides for

11 permits

theory

recovery of

where bad

multiple

faith

is

damages where

demand is refused in bad faith, but section 9 is by its terms

inapplicable (see note 2,
___
counterpart language.
whether

the bad

section 11.

faith

above) and section 11 has

_____

Massachusetts case
refusal

concept

law is murky as to
can be

read

into

Glickman v. Brown, 21 Mass. App. Ct. 229, 238 n.

________
_____

7, 486 N.E.2d 737, 743 n. 7 (1985), expressly holds

bad faith

no such

response provision "has no

governed by section 11.

Supreme Judicial

that the

application" to claims

On the other hand, the Massachusetts

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.
-6-6-

the other way.

International Fidelity Ins. Co. v.

________________________________

Wilson,
______

387 Mass. 841, 857, 443 N.E.2d 1308, 1318 (1983).

We
judge

need not

pursue

judge agreed

full investigation

that Southworth

of the accident when

but found that this

magistrate

in bad faith.
did not

The

conduct a

rejecting liability

was due to its reasonable

belief, after

amount of investigation, that the cause of the fire was

electrical.

Shortly

after

receiving notice

Southworth sent its employee who had

investigate.
the

because the

found that Southworth did not act

magistrate

some

the issue

of the

fire,

installed the engine to

The employee did not observe any problems with

engine and reported that the fire was possibly caused by

an electrical

failure.

An electrician not

Southworth had installed temporary

associated with

wiring on the Corey Pride

days before the fire broke out.

All
was

Trawl's own investigator

caused by oil leaks

surprisingly
Based on

chose

from the engine

to rely

this evidence

determined that

on

the fire

but Southworth not

its employee's

the magistrate judge

assessment.

concluded that

Southworth's
was

"not

belief that it was not responsible for the fire

unfounded,"

additional

thus

investigation did

The magistrate
has not

and

failure

not warrant

judge's finding

been challenged on

its

to

multiple damages.

is supported by

appeal, and

conduct

the record,

therefore ends

the

matter.

-7-7-

We also affirm the magistrate judge's determination that

All

Trawl is liable for

price of the
the

fire

decided to

engine.

aside from

the unpaid portion

Because the engine was

some

minor paint

keep the engine for

trial, Anderson

of the purchase

peeling,

use on the Corey

testified that the

of the Uniform

goods is

Commercial Code,3 a

liable for the

Uniform Commercial Code

_______________________

Pride.

At

in use

Under section

buyer who accepts

contract price, although

may recover damages resulting

All Trawl

engine was still

and that he was satisfied with its operation.

2-607

not damaged by

from any defect.

the buyer
4 Anderson,

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

sale of goods
the

provisions.

by the policies

The

predominant purpose of

of the UCC's

magistrate judge found

the contract

was to

provide an

engine and that the supply of labor was only incidental.

Cambridge Plating Co., Inc.
____________________________

v. Napco, Inc., No.

____________

that

See
___

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).
____________
-8-8-

slip. op. at 7 (1st Cir., April 22, 1993).

retaining

In any event, by

the engine and obtaining damages for the harm done

through misinstallation,
position

it

performed.

would
This

All Trawl has been

have

been

is the

in

is no reason why

position

even

the

general aim of

damages, Farnsworth, Contracts

_________
and there

had

better

restored to the
contract

suits for

12.8, at 871 (2d

it

would

have

contract
ed. 1990),

All Trawl should be

than

been

placed in a
obtained

if

Southworth had flawlessly performed the original contract.

The
chapter

remaining
93A.

ordinarily
incurred

issue

Prevailing

entitled to

11.

conflict with
pay their

fees

under

chapter 93A

are

reasonable attorney's

with the chapter

93A claim.

fees
Mass.

Although finding that Southworth had

breached chapter 93A, the

fees.

attorney's

claimants under

recover

in connection

Gen. L. ch. 93A,

attorney's

concerns

She

magistrate judge declined to award

reasoned

federal maritime

that such

an

award

law under which

would

the parties

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

-9-9-

1270,

1279 (1st Cir. 1993).

However, "the

state

law

remedy

constrained

may

be

by

used

to

extent to which

maritime

so-called `reverse-Erie'
____

injuries

doctrine

is

which

requires that the substantive remedies afforded by the States

conform to governing federal
Logistics, Inc. v.
________________
Thus,

where the

maritime standards."

Tallentire,
__________

477 U.S.

subject-matter falls

Offshore
________

207, 223

within the

(1986).
admiralty

jurisdiction, state law may `supplement' federal maritime law

but may not directly contradict it.
of Admiralty
____________

1-17,

at 49-50

(2d

Gilmore & Black, The Law

_______
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

part

the

of

substantive

inapplicable in an
so,

law

of

the

fees, although

Commonwealth,

action cognizable in admiralty.

was

This was

we noted, even though the underlying cause of action was

created

by Puerto

Rico law

happened to be based
893

providing for attorney's

F.2d 54 (3d

and federal

on diversity.

Accord Sosebee
______ _______

Cir. 1990) (Virgin

statute; territorial jurisdiction);

114, at

n.2 (1993

court jurisdiction
v. Rath,
____

Islands attorney's fees

1 Benedict on Admiralty
_____________________

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

-10-10-

than

50%

negligent incompatible

with

admiralty

contributory negligence only mitigates damages).

rule that

State

statutes

providing

sometimes be given effect

for

attorney's

fees

may

in admiralty cases, notably, where

the attorney's fees are awarded incident to a dispute that is

not normally a subject of maritime law.
v.

For example, in Pace

____

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
settle

fees for an insurer's bad faith refusal to pay or

claims; the refusal to settle claims is normally left

untouched by maritime
held

that admiralty

law.
law

More recently,
likewise did

in Ellenwood, we
_________

not foreclose

state

claims based upon state handicap discrimination statutes, for

maritime

law

did

discrimination.
Turning

not

address

the

to the

case

at hand,

handicap

incident to

standard contractual breach to

liability
novel to

Rather, Southworth was found

liable as a result of its breach of

parts and workmanship

Southworth's

not predicated on any ground

or unaddressed by maritime law.

its express warranty for

the repair of

a ship,

which maritime law has always

See Zych v. Unidentified, Wrecked & Abandoned

___ _____________________________________________

Vessel, 941 F.2d 525, 531 (7th Cir. 1991).

______
to violate

of

984 F.2d at 1280.

under chapter 93A was

applied.

subject

chapter 93A

falls squarely

-11-

The conduct found

within the focus

of

-11-

existing
provision,

maritime

law,

and

chapter 93A's

being inconsistent with

applied in this case.

Affirmed.
________

attorney's

maritime law,

fee

cannot be