United States District Court, D. Maine
Torresen United States Chief District Judge
upon the evidence and arguments presented, I make the
following findings of fact and conclusions of law pursuant to
Rule 52(a) of the Federal Rules of Civil Procedure.
Sawyer and Ross Sawyer own Sawyer Brothers., Inc.
(“Sawyer Brothers”), a concrete construction
company based in Thomaston, Maine. The company works on the
mainland and on the nearby islands.
Sawyer Brothers relies on a large truck with an attached
crane to place heavy pieces of material and equipment. Before
the accident, the company used a 1987 Mack truck. Mounted on
the Mack was a 1992 Copma knuckleboom crane, which could
extend 68 feet and lift 2, 400 pounds. Four outriggers
attached to the side of the truck provided extra stability.
The Mack truck had Department of Transportation
(“DOT”) certification, and the crane was
Occupational Safety and Health Administration
Island Transporter, LLC (“Island Transporter”), a
subsidiary of Rockland Marine Corporation, operates out of
Rockland, Maine. Defs.' Ex. 7. Island Transporter owns
and operates the passenger vessel the M/V Island
Transporter. Defs.' Ex. 7.
Because it is designed to run up onto a beach to load and
discharge cargo, the M/V Island Transporter has a
flat, steel hull like a barge or landing craft. Defs.'
Ex. 8. This makes the M/V Island Transporter more
susceptible to pitching in rough seas than a vessel like the
Maine State Ferry, which has a hull curved like a
“V” that slices through the water.
M/V Island Transporter is equipped with several
D-rings on the deck that can hold chains to lash down
vehicles. It takes approximately ten to fifteen minutes to
lash down a vehicle.
December 2014, Sawyer Brothers had a job to set panels for a
foundation on North Haven, an island in the Penobscot Bay.
Sawyer Brothers contacted Island Transporter to secure
transportation for themselves and their equipment.
Sawyer Brothers previously had hired Island Transporter six
to twelve times to take them to various island jobs over the
route from Rockland Harbor to North Haven Harbor crosses the
southern end of the Penobscot Bay and takes approximately one
hour. At its beginning and end, the route is protected by
harbors and islands; the middle passage crosses exposed, open
water for approximately two to three miles. The open waters
closer to Vinalhaven and North Haven can get especially
Weather and Sea Conditions on the Penobscot Bay
Before deciding to carry through with a planned voyage,
mariners typically check the National Oceanic and Atmospheric
Administration (“NOAA”) weather forecast and buoy
data, available through television newscasts, smartphones,
computers with internet access, and VHF radio.
a. There are two relevant NOAA forecast areas: the ANZ 151
area, which covers Penobscot Bay (the “Penobscot Bay
forecast, ”) and the ANZ 150 area, which runs from
Stonington, Maine to Port Clyde, Maine out to 25 nautical
miles (the “Coastal Waters forecast”). The route
taken by the M/V Island Transporter falls entirely
within the southwestern corner of the Penobscot Bay forecast
area, but the route is only approximately two miles north of
the border between the Penobscot Bay and the Coastal Waters
b. The route is also proximate to West Penobscot Bay weather
buoy F01 at Station 44033 (“the F01 buoy”). The
F01 buoy is just on the Coastal Waters side of the boundary
with the Penobscot Bay forecast area. The North Eastern
Regional Association of Coastal Ocean Observing System
(“NERACOOS”) manages the F01 buoy, which collects
and transmits actual weather and oceanic data, including wave
height and frequency and wind speed and direction. Court Ex.
1. NERACOOS and NOAA publish the data approximately hourly
online and on the radio.
c. Weather and sea conditions do not stop exactly at the
boundaries delineated in NOAA weather zone maps. Mariners
take into account the conditions in neighboring weather zones
to best anticipate conditions. The Plaintiffs' expert
witness Captain Dinsmore said two weather reports for regions
that border each other should be compiled. Captain Morse
stated it is prudent to take more than one piece of
information into account when making navigational decisions.
Mate McIntyre described calculating the average between the
Penobscot Bay and Coastal Waters forecast areas for the route
to North Haven. Defendants' expert witness Captain Hight
said to understand the conditions, he created a personal
forecast based on the F01 buoy data and inshore and offshore
forecasts. He said it's a mistake to rely on the
Penobscot Bay forecast and not take into account the Coastal
Waters forecast. Maine State Ferry Captain McNichol stated
that for the route in question he would listen to both the
Penobscot Bay and Coastal Waters forecasts but would really
pay attention to the Coastal Waters forecast.
d. The influence of the Coastal Waters conditions would
decrease the further north the location in the Penobscot Bay.
Mariners analyze NOAA forecasts and buoy data according to
generally understood guidelines.
a. Wave size is forecasted and measured by the significant
wave height, which is an average of the highest one third of
b. An extreme wave is twice the height of the significant
wave and may occur once every one thousand waves. Where the
significant wave height is 2-4 feet, a mariner could
reasonably anticipate an 8 foot extreme wave.
c. The term rogue wave is colloquially used to refer to an
extreme wave, but technically a rogue wave is larger and
occurs less frequently than an extreme wave.
d. When wind blows over a large exposed area of water, larger
waves can build. Mariners refer to these lengths of water
where seas build as “fetch.” Because the
Penobscot Bay is long north to south, and entirely open on
the southern end, winds from the south can create a
Weather and Sea Conditions on December 11, 2014
Gale warnings were in effect into the early morning hours of
December 10, 2014 within the Penobscot Bay and the Coastal
Waters forecast areas with gusts up to 30 knots. Pls.'
December 11, 2014 at 3:06 a.m., conditions had calmed down
from the previous day, but NOAA noted a small craft advisory
would be in effect through the afternoon in both the
Penobscot Bay and Coastal Waters forecast areas. The NOAA
forecast for the Penobscot Bay was seas 2-4 feet, a chance of
drizzle, and southerly winds 10-20 knots, becoming 15-25
knots in the afternoon. The NOAA forecast for December 11,
2014 in the Coastal Waters area was southerly winds at 20-25
knots with gusts up to 30, seas 8-11 feet, and a chance of
drizzle. Pls.' Ex. 1.
NOAA did not issue another forecast until 2:30 p.m. on
December 11, 2014. Pls.' Ex. 1.
While the NOAA forecasts provide predictions for the future,
the F01 buoy provides hourly data averages for conditions
actually occurring. On December 11, 2014 at 5:30 a.m., the
F01 buoy recorded that the significant wave height was 5.3
feet, the wave period (the seconds between waves) was 10.7
seconds, wind direction was 174.2 degrees, wind speed was
16.1 knots, and the wind gust was 20.1 knots. At 7:30 a.m.,
wave height was 6.3 feet, wave period was 10.7 seconds, wind
direction was 186.0 degrees, wind speed was 18.7 knots, and
wind gust was 23 knots. Pls.' Ex. 2.
8:30 a.m., just before the M/V Island Transporter
departed Rockland, the F01 buoy recorded that the wave height
was 6.7 feet, the wave period was 5.3 seconds, the wind
direction was 175.3 degrees, the wind speed was 18.5 knots,
and the wind gust was 23.4 knots. By 9:00 a.m., the wave
height decreased to 5.5 feet, but the wave period accelerated
to 6.4 seconds. Winds were still southerly at 18.6 knots.
Pls.' Ex. 2.
9:30 a.m., wave height at the F01 buoy swelled to 7.1 feet,
and wave period accelerated to 5.3 seconds. Pls.' Ex. 2.
It was around this time that the accident at issue occurred.
for the December 11, 2014 Voyage
Captain Richard Morse and Mate James McIntyre comprised the
entire crew assigned to the M/V Island Transporter
for the December 11, 2014 voyage. Captain Morse has a 100 ton
near coastal captain's license. Defs.' Ex. 12. He
began working with Island Transporter in 2004, and, as of
trial, had completed 3, 002 trips with the company. As the
captain of this voyage, Morse bore responsibility for the
vessel and all on board. Mate McIntyre has a 100 ton inland
waters captain's license and a 100 ton coastal waters
mate's license. Defs.' Ex. 11.
Captain David Whitney, the general manager of Island
Transporter, has a 1600 ton ocean master's license, and
he has navigated the M/V Island Transporter himself
several hundred times. Captain Whitney also has a habit of
checking the weather prior to an M/V Island
Transporter voyage. He testified he would not consider
the Coastal Waters forecast because it is out of zone of the
route from Rockland to North Haven. When pressed, he said he
would not disregard the Coastal Waters forecast either
because it is proximate.
Captain Whitney called Ryan Sawyer to cancel a voyage
scheduled for a couple of days before the December 11, 2014
trip, on account of bad weather.
December 10, 2014, Captain Whitney talked with Captain Morse
about the weather forecast for the following day. They chose
the morning of December 11th because it looked like a
favorable weather window.
Captain Whitney called Ryan Sawyer on December 10th and left
a voicemail regarding the planned December 11th voyage. He
said there may be showers and asked if the Sawyers still
wanted to go. Pls. Ex. 4. The Sawyers agreed to go.
Around 6:30 a.m. on December 11th, Captain Morse checked the
weather from his home computer, referencing the NOAA forecast
for Penobscot Bay, the website windfinder.com, and the local
television weather report. Captain Morse chose to rely on the
Penobscot Bay forecast and disregarded the Coastal Waters
forecast as not relevant to conditions on his route. He knows
of the F01 buoy, and testified that it was possible he
checked that data because that is part of his normal habit.
Captain Morse further asserted that where the weather
forecasted 2-4 foot waves, the seas could potentially rise to
5-6 feet. He testified that it would not be prudent to make
the voyage with reasonably anticipated 8 foot waves.
Mate McIntyre testified that if he were captain, he would not
sail to North Haven with vehicles on board if the Coastal
Waters forecast were for seas 8-11 feet because it would be a
Captain Morse and Mate McIntyre came aboard the M/V
Island Transporter at the Rockland Ferry Terminal at
7:15 a.m. Defs.' Ex. 1. Captain Morse did not have an
internet connection, but he did have radio. After performing
routine equipment checks and tests, they were underway at
the Trucks and Passengers
8:30 a.m., Captain Morse and Mate McIntyre arrived at Prock
Marine in Rockland Harbor, where they planned to load the
passengers and their three trucks. Defs.' Ex. 1. The
three-man crew for Sawyer Brothers included Ryan Sawyer, who
drove the Mack truck, Ross Sawyer, who drove a pickup truck,
and Dana Martin, who drove a loaded cement truck.
Mate McIntyre created the plan for arranging the trucks on
deck. He considered the weight balance between the Mack truck
and the heavier cement truck. These vehicles drove onto the
vessel from a ramp at the bow of the M/V Island
Transporter that was lowered onto the beach. The cement
truck, driven by Dana Martin, backed in first and parked in
the stern. Then, the pick-up driven by Ross Sawyer drove
straight in, and parked in the middle under the pilot house.
Last, the Mack truck, driven by Ryan Sawyer, backed on and
parked in the bow.
M/V Island Transporter was carrying the 65, 200
pound cement truck, which is top-heavy and tall, and the 54,
000 pound crane truck, but it was not overloaded beyond its
Mate McIntyre placed chocks at the trucks' wheels to
impede the vehicles from shifting position on the deck, but
he did not lash down the trucks to the D-rings on the deck of
the M/V Island Transporter. Although Captain Morse
had prior experience lashing down trucks when transiting in
rough weather, he did not think the weather conditions
merited this precaution and did not discuss the matter with
Mate McIntyre or the passengers.
a general practice, the Maine State Ferry places the vehicle
that is the tallest and most top-heavy underneath the pilot
house to help ensure that it does not tip over. The Maine
State Ferry considers not transporting trucks when there is a
southerly wind. If the captain decides to transport trucks
despite somewhat rough conditions, the practice is to lash
them down. On December 11, 2014, the Maine State Ferry
crossed the Penobscot Bay around the same time in the morning
as the M/V Island Transporter. A truck onboard that
ferry was lashed with chains through the D-rings on deck.
Neither Captain Morse nor Mate McIntyre asked the Sawyers to
deploy the Mack truck's outriggers, and the Sawyers did
not do so on their own initiative. Captain Morse previously
had the ...