
USCA1 Opinion

	




          December 15, 1994     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1690                                   THOMAS TRUPIANO,                                Plaintiff, Appellant,                                          v.                            CAPTAIN GUS & BROTHERS, INC.,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Robert B. Collings, U.S. Magistrate Judge]                                             _____________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Joseph M.  Orlando, with whom  Orlando &  Associates was  on               __________________             _____________________          brief, for appellant.               Thomas  J. Muzyka, with whom Robert E. Collins and Clinton &               _________________            _________________     _________          Muzyka, P.C. were on brief, for appellee.          ____________                              _________________________                              _________________________                    Per Curiam.  Following  an evidentiary hearing in which                    Per Curiam.                    __________          a magistrate judge awarded plaintiff-appellant Thomas Trupiano, a          seaman,  maintenance and  cure,1 Trupiano  appealed.   His appeal          presents what amounts to  a single factbound issue:   whether the          court below erred in  failing to hold defendant-appellee, Captain          Gus  & Bros.,  Inc., liable  for punitive damages  and attorneys'          fees in consequence of its refusal to pay maintenance and cure to          Trupiano when and as due.                    Plaintiff,  of  course,  had   the  burden  of  proving          defendant's liability for these imposts by showing that defendant          was   "callous,   willful,   or   recalcitrant   in   withholding          [maintenance and cure] payments."   Robinson v. Pocahontas, Inc.,                                              ________    ________________          477 F.2d 1048, 1051  (1st Cir. 1973).   Given that burden,  given          the  conflicted nature  of the  evidence, given  the gaps  in the          available information that existed  up to the time of  trial, and          given,  especially,  the  deferential  standard  of  review  that          pertains,  see, e.g., DiMillo v. Sheepscot Pilots, Inc., 870 F.2d                     ___  ____  _______    ______________________          746, 749 (1st Cir. 1989) ("In maritime cases, we review factbound          findings  stemming  from a  bench  trial in  accordance  with the          `clearly erroneous'  principle of  Fed. R.  Civ. P.  52(a)."), we          cannot  say that the district court clearly erred in finding that          defendant's failure  to make  timely payments of  maintenance and          cure,  though eventually  adjudged to  be without  adequate legal          basis, did  not justify the imposition of punitive damages and/or                                        ____________________               1The  evidentiary hearing  followed a  jury trial  on issues          involving  claims of  unseaworthiness  and Jones  Act  liability.          Those issues are not before us.                                          2          attorneys' fees.  After all, when there are two plausible sets of          inferences that can be  drawn from the facts, the  trier's choice          between them cannot be  clearly erroneous.  See Anderson  v. City                                                      ___ ________     ____          of  Bessemer City, 470 U.S. 564, 573-74 (1985); Cumpiano v. Banco          _________________                               ________    _____          Santander P.R.,  902 F.2d 148,  152 (1st  Cir. 1990).   So it  is          ______________          here.                    We need go no further.2   Because it "clearly appear[s]          that  no substantial question  is presented" by  this appeal, 1st          Cir. R. 27.1, the judgment below can be summarily                    Affirmed.  Costs to appellee.                    Affirmed.                    ________                                        ____________________               2To be  sure appellant also  complains that the  lower court          improperly denied his  motion to amend in order to  add the boat-          owner's insurer as a party  defendant.  We think that ruling  was          well  within the  magistrate's  discretion.   In  any event,  the          insurer's status as a party obviously would not have affected the          outcome either of the case or of the appeal.                                          3
