                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 04a0184n.06
                           Filed: December 21, 2004

                                            No. 03-6208

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


Charles Hartley, Owner/Operator of the M/V        )
Nina’s Casino                                     )
                                                  )
       Petitioner-Appellant,                      )
                                                  )   ON APPEAL FROM THE UNITED
v.                                                )   STATES DISTRICT COURT FOR THE
                                                  )   EASTERN DISTRICT OF KENTUCKY
St. Paul Fire & Marine Insurance Company,         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
The Travelers Indemnity Company of                )
Illinois,                                         )
                                                  )
       Intervenor-Appellee,                       )
                                                  )
Erie Insurance Group,                             )
                                                  )
       Defendant-Appellee.                        )



       Before: RYAN, COLE and ROGERS, Circuit Judges.
       Rogers, Circuit Judge. Charles Hartley, the owner and operator of the M/V Nina’s

Casino, appeals a determination he was negligent in causing a fire aboard his houseboat that

spread and damaged seventeen vessels at the marina where he docked. Mr. Hartley argues that:

(1) the district court’s finding of negligence was clearly erroneous; (2) the district court abused

its discretion in admitting the testimony of Rick Franklin while excluding the testimony of

Samuel Flowers, the deposition testimony of Robert Harshman, and two photographs taken by
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Mr. Harshman; and (3) the district court erred to the extent liability was based on

unseaworthiness. We affirm the district court because its finding of negligence was not clearly

erroneous and the district court did not abuse its discretion in its evidentiary rulings. While the

district court erred in determining that Mr. Hartley’s vessel was unseaworthy, the finding of

negligence is sufficient to support the judgment of liability and any error regarding the doctrine

of seaworthiness is therefore harmless.


I.     Background


       On January 29, 2001, just after midnight, Mr. Jack Hughes and Ms. Patricia Hughes were

awakened by an explosion at the Pier 99 Marina, on the Ohio River near Warsaw, Kentucky.

Mr. and Mrs. Hughes, who lived a short distance from the marina, looked out their window and

saw three vessels on fire. Mr. Hughes testified that the interior of the center boat, the M/V

Nina’s Casino, was burning, while the exterior hulls of the boats on either side were on fire, an

account confirmed by Ms. Hughes. The fire spread and severely damaged seventeen vessels and

boat slips at the marina. After the fire was put out, investigators for the Commonwealth of

Kentucky and various private investigators began an inquiry into the cause of the fire. The

investigators focused on the M/V Nina’s Casino as the origin of the fire based on Mr. and Mrs.

Hughes’ eyewitness accounts.


       The M/V Nina’s Casino was a 65 foot seagoing houseboat docked at slip 33 of the Pier

99 Marina. Mr. Hartley regularly spent weekends on the Nina’s Casino during the winter



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months and shared the houseboat with his cat, Daily, who freely roamed the boat year-round.1

To heat the boat during the winter, Mr. Hartley employed three space heaters, two of which were

identified by experts as possible causes of the fire.2 The first was an electric space heater kept in

the main cabin of the boat, near the kitchen, and was used as the primary source of heat when

Mr. Hartley stayed on the boat during the winter. This space heater had various safety features,

including an automatic shut-off which turned the heater off if disturbed. The second was a

propane space heater in the main cabin that Mr. Hartley occasionally used to “knock the chill

off.” Mr. Hartley left his houseboat before noon on the morning before the fire, earlier than

usual. He testified that his practice was to unplug all the appliances,3 including the main electric

space heater, from a surge protector in the kitchen when he left the boat, but he could not

specifically recall unplugging the main space heater that morning.


       Following the fire, the Nina’s Casino and the two boats docked next to her were removed

from the river and investigators entered the boat to remove and catalog items with potential

significance to the cause of the fire. The fire did not reach the engine compartment of the Nina’s

Casino, which was protected by a steel fire barrier, but the main cabin of and its contents had


       1
        Daily was not found following the fire and is presumed dead.
       2
         The district court’s findings of fact refer to an energized space heater kept in the engine
compartment of the Nina’s Casino to prevent the water lines as freezing. This heater was not
identified by experts as a cause of the fire. Experts testified that the main cabin was the origin of
the fire and that a steel fire barrier helped to protect the engine compartment where the space
heater referred to by the district court was stored.
       3
         Mr. Hartley did testify that a hood light for the stove remained plugged into the strip at
all times.

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been damaged severely. The electric space heater in the main cabin was severely damaged, but

was recovered with the control switch in the “on” position. Investigation of the fire scene also

revealed evidence of short-circuiting in the electrical systems of two of the first three ships to

catch fire, as well as the dock between slips 33 and 34, where the three ships were moored.


       Based on the available evidence from the Nina’s Casino, Mr. and Ms. Hughes’

statements and an analysis of the burn pattern aboard the Nina’s Casino, the experts who

investigated the fire came to different conclusions as to its origin and cause. Rick Franklin, the

expert for appellee Travelers Indemnity Company (Travelers), concluded that the fire originated

in the living quarters of the Nina’s Casino and that the fire was caused by the electric space

heater in the main cabin being left on and coming into contact with a combustible material.

Danny Stivers, a Kentucky state arson investigator, and Samuel Flowers, a Kentucky state fire

marshal, could not determine the cause of the fire from the available evidence. Both experts

retained by Mr. Hartley testified that the fire originated on the boat docked next to the Nina’s

Casino, but could not determine a cause.


       Mr. Hartley petitioned for exoneration or limitation of liability under the Limitation of

Liability Act. 46 U.S.C. app. § 181, et seq. (2000), and several claimants stepped forward to seek

damages from Mr. Hartley. Briefly stated, the purpose of the Limitation of Liability act is to

encourage shipping by eliminating or limiting, in certain cases, liability for losses or damage

incurred without the “privity or knowledge” of the owner. In re Muer, 146 F.3d 410, 414 (6th

Cir. 1998). A limitation action involves a two step inquiry: (1) whether the loss was caused by

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negligence or unseaworthiness; and, if so, (2) whether the vessel owner was privy to or had

knowledge of the cause of the loss. Id. at 415. If the owner, his vessel, and crew are free of fault

in causing the loss, the owner is entitled to exoneration. In re Cleveland Tankers, 67 F.3d 1200,

1203 (6th Cir. 1995). Even if not completely free of fault, if the vessel owner has no knowledge

of or privity to the ship’s negligence or unseaworthiness, the owner’s liability is limited to the

value of the ship and its cargo. Id. The claimant in a limitation action bears the burden of

proving the negligence or unseaworthiness. See Id.


        The district court bifurcated the case between liability and damages and held a bench trial

on liability. Following the liability phase of the trial, the district court issued findings of fact and

conclusions of law denying Mr. Hartley’s petition for exoneration or limitation from liability and

finding him negligent in causing the fire. The district court relied on the expert testimony of

Rick Franklin to support its finding of negligence. Specifically, the district court concluded that

Mr. Hartley was negligent in leaving an energized space heater aboard the boat unattended with

an unrestrained cat and that this was the actual and proximate cause of the fire. The court

inferred that Mr. Hartley left the heater on to keep Daily (the cat) warm on a day when the

temperature was in the high twenties.4 In addition, the district court concluded that the Nina’s

Casino was unseaworthy and that the unseaworthy condition of the boat caused the loss,

apparently as an alternative ground for denying the petition for exoneration or limitation of




        4
        Although not specifically stated by the district court, the court appeared to infer further
that Daily, much like Mrs. O’Leary’s cow, started the fire by disturbing the space heater.

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liability. Mr. Hartley appeals the district court’s finding of liability.5


II.     Analysis


        A.      The District Court’s Finding of Negligence


        Although the evidence was slim and the issue accordingly close, the district court did not

clearly err in finding both negligence and causation in this case. Following a bench trial, the

findings of fact of a district court will be set aside only if clearly erroneous. FED. R. CIV. P.

52(a). Reversal is warranted “when although there is evidence to support [the factual finding of

the district court], the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,

395 (1948). In admiralty cases, negligence and causation are factual determinations reviewed

under the clearly erroneous standard. See Grosse Ile Bridge Co. v. Am. S.S. Co., 302 F.3d 616,

621 (6th Cir. 2002) (citing Todd Shipyards Corp. v. Turbine Serv., Inc., 674 F.2d 401, 405 (5th

Cir.1982)).


        Although this case is brought under admiralty jurisdiction, we apply ordinary common

law tort concepts. Of course, substantive maritime law applies to a cause of action brought in

admiralty, and general maritime law provides the elements of negligence in the absence of

statutory modification. E. River S.S. Corp. v. TransAmerica Delaval, Inc., 476 U.S. 858, 864




        5
         Interlocutory appeals are allowed in admiralty cases. 28 U.S.C. § 1292(a)(3) (2000).

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(1986). However, under the general maritime law, the elements of negligence are generally the

same as a common law negligence action, i.e. duty, breach, causation and damages. See Pearce

v. United States, 261 F.3d 643, 647-48 (6th Cir. 2001); 1 THOMAS J. SCHOENBAUM, ADMIRALTY

& MARITIME LAW § 5-2 at 183 (4th ed. 2004).


       As with many negligence cases, the elements of the tort are much easier to state than to

apply to a given set of facts, especially where a question of causation is raised. Mr. Hartley

argues that the district court clearly erred in finding that the fire was caused by the ignition of

some combustible material by the energized space heater in the main cabin. Specifically, Mr.

Hartley argues that the district court’s finding of negligence was clearly erroneous because: 1)

the district court ignored evidence that the space heater, alleged to be the cause of the blaze, was

unplugged; and 2) the testimony of Travelers’ expert, Rick Franklin, was insufficient to establish

that the space heater aboard the Nina’s Casino was the actual or proximate cause of the fire.


       First, the district court’s finding of negligence in leaving a space heater energized was

not clearly erroneous. Mr. Hartley admits that leaving an energized space heater unattended is

an unsafe boating practice and therefore negligent. However, he relies on his testimony that his

habit was to unplug all of the appliances prior to leaving the boat to argue that the district court

was clearly erroneous in finding that the space heater was actually energized. However, Mr.

Hartley testified he could not remember unplugging the space heater the morning before the fire,

and the evidence showed the space heater’s control switch was in the on position. It was well

within the province of the district court, as trier of fact, to reject Mr. Hartley’s testimony based

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on the undisputed fact that the space heater’s control switch was in the on position, combined

with the evidence that the fire started in the cabin where the space heater was located.

Therefore, the district court did not clearly err in finding that Mr. Hartley breached his duty of

care.


        Second, the district court did not clearly err in determining that the energized space

heater was the actual and proximate cause of the fire, based on the expert testimony of Rick

Franklin. Given that, “[b]y the very nature of a fire, its cause must often be proven through a

combination of common sense, circumstantial evidence, and expert testimony[,]” the reliance on

expert testimony to support a common sense inference is not clearly erroneous. Minerals &

Chems. Philipp Corp. v. S.S. Nat’l Trader, 445 F.2d 831, 832 (2d Cir. 1971). Further, the

evidentiary requirement for causation is less when there is evidence both of negligence and of

the very harm that made the activity negligent in the first place (here, fire from a negligently

unattended space heater). See DAN B. DOBBS, THE LAW OF TORTS § 173 p. 420 (“if the

defendant’s conduct is deemed negligent for the very reason that it creates a core risk of the kind

of harm suffered by the plaintiff, then it is often plausible to infer causation in fact”); see also

RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM § 28 cmt. b (Tent. Draft No. 2,

March 25, 2002) (citing David W. Robertson, The Common Sense of Cause in Fact, 75 TEX. L.

REV. 1765, 1774-75 (1997); Kwasny v. United States, 823 F.2d 194 (7th Cir. 1987); Charles E.

Carpenter, Concurrent Causation, 83 U. PA. L. REV. 941, 943 (1935)). The combination of the

destruction of much of the direct evidence that would prove causation and the expert testimony



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placing the origin of the fire in the main cabin of the Nina’s Casino near the space heater

sufficiently support the district court’s conclusion that the energized space heater in the main

cabin was the actual and proximate cause of the fire. Therefore, the district court’s

determination that Mr. Hartley’s negligence caused the fire is not clearly erroneous.


       B.      The District Court’s Evidentiary Rulings.


       Moreover, none of the district court’s evidentiary rulings challenged on appeal warrants

reversal. Mr. Hartley objected to the district court’s decisions: (1) to admit Rick Franklin’s

expert testimony that the electrified space heater was the cause of the fire; (2) to exclude the

expert testimony of Samuel Flowers as a sanction for failing to appear at his deposition; and (3)

to exclude the deposition testimony of Robert Harshman and photographs taken by him. In each

case, the evidentiary rulings of the district court are reviewed for abuse of discretion. Bowman v.

Corrections Corp. of America, 350 F.3d 537, 547 (6th Cir. 2003).


               1.      Expert Testimony of Rick Franklin


       The district court did not abuse its discretion by admitting Rick Franklin’s expert

testimony on the cause of the fire. Mr. Franklin’s opinion meets the standard for admissibility

under Federal Rule of Evidence 702. The inability to eliminate other causes of the fire or state

with certainty the source of the accelerant go the reliability of his conclusions, not to the

admissibility of his opinion. The admissibility of expert testimony is governed by a two step

inquiry. The district court must determine (1) that the expert testimony is scientifically valid,

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based on scientific technical or other specialized knowledge, and, if so, (2) that the testimony

will assist the trier of fact to understand or determine a fact in issue. FED. R. EVID. 702; Daubert

v. Merrill Dow Pharms., Inc., 509 U.S. 579, 592 (1993); Jahn v. Equine Servs., PSC, 233 F.3d

382, 388 (6th Cir. 2000). Testimony may be admitted when “an expert, whether basing

testimony on professional studies or personal experience, employs in the courtroom the same

level of intellectual rigor that characterizes the practice in the relevant field.” Kumho Tire Co.,

Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). An opinion on causation need not eliminate all

other possible causes of the injury and the fact that other causes are not eliminated or a precise

cause is not stated go to the accuracy of the conclusion, not the soundness of the methodology.

Jahn, 233 F.3d at 390. Mr. Franklin’s expert testimony meets this standard and the district court

did not abuse its discretion in admitting his testimony.


               2.      Expert Testimony of Mr. Samuel Flowers


       The exclusion of the testimony of Mr. Samuel Flowers, a Kentucky state fire marshal, as

a sanction for failing to appear at his deposition was harmless regardless of whether the district

court ruled properly in excluding the testimony. When Mr. Hartley called Mr. Flowers to testify,

counsel for Travelers objected claiming prejudice. The parties had agreed to divide

responsibility for noticing and arranging the depositions of fact witnesses. Counsel for Mr.

Hartley noticed Mr. Flowers deposition, but when he failed to appear counsel for Mr. Hartley did

not reschedule his deposition. When Mr. Hartley called Mr. Flowers’ at trial, the district court

excluded his testimony ruling, “If [Mr. Flowers] didn’t come to discovery he ain’t coming

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today.”6 However, the district court considered Mr. Flowers opinion as the district court referred

to the testimony in its findings of fact and conclusions of law. The fact that the district court

considered Mr. Flowers testimony renders harmless any error in excluding the testimony.


               3.      The Exclusion of Evidence Associated with Robert Harshman


       The district court did not abuse its discretion by excluding the deposition testimony of

Robert Harshman or photographs taken by him. Because it does not appear from the record that

Mr. Hartley attempted to introduce any deposition testimony of Mr. Harshman, but rather only

the photographs, Mr. Hartley’s argument that the district court erred in excluding Mr.

Harshman’s deposition testimony is without merit. Similarly, while the district court’s reasoning

is not clear, Mr. Hartley could not produce Mr. Harshman at trial to authenticate the

photographs, nor did he attempt any other means of authentication. Like other evidence,

photographs must be authenticated prior to being admitted into evidence. See FED. R. EVID. 901;

United States v. Blackwell, 694 F.2d 1325, 1330 (D.C. Cir. 1982). The district court was within

its discretion when it refused to accept the unauthenticated photographs into evidence as

authentication is a necessary precondition to admissibility. See Blackwell, 694 F.2d at 1329-30.




       6
        After the district court excluded Mr. Flowers testimony, counsel for Mr. Hartley took his
testimony by avowal. Testimony by avowal is the equivalent of an offer of proof under the
Federal Rules of Evidence. Compare KY. R. CIV. P. 43.10 with FED. R. EVID. 103(a)(2). The
purpose is to preserve the substance of the excluded evidence for appeal.

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       C.      Seaworthiness


       It is true that the district court erred to the extent that its finding of liability was

predicated on the conclusion that Mr. Hartley’s vessel was “unseaworthy.” See Kermarec v.

Compagnie Generale Transatlantique, 358 U.S. 625, 629 (1959) (doctrine of seaworthiness

serves to protect only crew members and a small class of shore-workers); see also 1 THOMAS J.

SCHOENBAUM, ADMIRALTY & MARITIME LAW § 5-9 at 229 (4th ed. 2004). However, in the

context of this case, any such error is harmless. Mr. Hartley is not entitled to exoneration or

limitation of liability because the district court did not clearly err in determining he was

negligent in causing the fire, and the finding of unseaworthiness was entirely unnecessary to the

liability determination.


III.   Conclusion


       For the foregoing reasons, the district court’s finding of liability is AFFIRMED.




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