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Sawyer Brothers Inc. v. M/V Island Transporter

United States District Court, D. Maine

November 3, 2016

SAWYER BROS., INC., et al., Plaintiffs,
v.
M/V ISLAND TRANSPORTER, et al. Defendants.

          ORDER

          Nancy Torresen United States Chief District Judge

         Based 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.

         FINDINGS OF FACT

         The Parties

         1. Ryan 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.

         2. 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 (“OSHA”) certified.

         3. 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.

         4. 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.

         5. The 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.

         6. In 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.

         7. Sawyer Brothers previously had hired Island Transporter six to twelve times to take them to various island jobs over the years.

         The Route

         8. 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 rough.

         Understanding Weather and Sea Conditions on the Penobscot Bay

         9. 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 forecast areas.
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.

         10. 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 all waves.
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 significant fetch.

         The Weather and Sea Conditions on December 11, 2014

         11. 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.' Ex. 1.

         12. By 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.

         13. NOAA did not issue another forecast until 2:30 p.m. on December 11, 2014. Pls.' Ex. 1.

         14. 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.

         15. At 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.

         16. At 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.

         Preparations for the December 11, 2014 Voyage

         17. 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.

         18. 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.

         19. 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.

         20. On 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.

         21. 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.

         22. 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.

         23. 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 mess.

         24. 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 8:15 a.m.

         Loading the Trucks and Passengers

         25. At 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.

         26. 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.

         27. The 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 weight capacity.

         28. 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.

         29. As 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.

         30. 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 ...


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