
USCA1 Opinion

	




          December 7, 1995  United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1462                                      CEH, INC.,                                 Plaintiff, Appellee,                                          v.                          F/V SEAFARER (ON 675048), ET AL.,                               Defendants, Appellants.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  this Court  issued on November  28, 1995  is          corrected as follows:               On  page 11,  line  15 -  insert  the following  text  after          "Moragne, 398 U.S. at 401-02": "(quoting The Lottawanna, 88  U.S.           _______                                 ______________          (21 Wall.) 558, 575 (1875))".               On page 12, line 10 - change "and" to "[and]".                On  page 13,  last line  - insert  the following  text after          "(5th Cir. 1995)":  "(en banc)".               On page 14 - delete footnote 9.               On  page 22,  first  paragraph,  line  11  -  change  "[Lake                                                                       ____          Shore.]" to "Lake Shore . . . ."          _____        __________                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1462                                      CEH, INC.,                                 Plaintiff, Appellee,                                          v.                          F/V SEAFARER (ON 675048), ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                      Coffin and Aldrich, Senior Circuit Judges.                                          _____________________                                 ____________________               Leonard W. Langer with whom Marshall J. Tinkle was on brief               _________________           __________________          for appellants.               Mark A. McSally for appellee.               _______________                                 ____________________                                  November 28, 1995                                 ____________________               COFFIN, Senior Circuit Judge.  Defendant-appellants, the F/V                       ____________________          SEAFARER, a fishing trawler, and Michael Doyle and Charles Niles,          its owner  and captain respectively, appeal  the district court's          decision  after  a  bench  trial  finding  them  liable  for  the          destruction   of   appellee's   lobstering   gear   and  imposing          compensatory and  punitive damages.   CEH, Inc. v.  F/V Seafarer,                                                _________     ____________          880  F.  Supp. 940  (D.R.I. 1995).   Defendants  challenge, inter                                                                      _____          alia,  the  sufficiency  of  the evidence,  the  availability  of          ____          punitive damages as  a matter  of law, and  the district  court's          adoption of the  Restatement (Second) of Torts    909 as  a basis                           _____________________________          for vicarious liability.  We affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND               The  facts,  as  the  court  found  them,  are  as  follows.          Plaintiff-appellee  CEH,  Inc.  ("CEH")  owns  the  F/V  COURTNEY          ELIZABETH, an off-shore lobstering  vessel based in Point Judith,          Rhode  Island.   During May  and June  of 1992,  CEH owned  4,200          lobster   traps,  2,857  of  which  were  grouped  off  shore  in          arrangements referred  to as "lobster  trawls."  A  lobster trawl          consists of  40 to 55 traps  connected to each other  by a ground          line.   Each end  of the ground  line is attached  to a blivet, a          cement block that keeps the trawl  in place.  A rope extends from          the  top of each blivet to a  high flier, a floatable device that          consists of ring  floats, an aluminum pole and  a flag, and which          is often marked with  radar reflectors.  The high fliers mark the          location of the lobster traps below.                                         -3-               The  COURTNEY ELIZABETH  regularly tended  to these  lobster          traps, but  between May 13, 1992 and June 7, 1992, she was ashore          undergoing repairs.  From May 19 to May 23, another vessel hauled          and reset the traps.  Upon returning to  duty on June 7, the crew          of the COURTNEY ELIZABETH discovered that 1,093 traps and related          equipment were  missing.   Subsequently, CEH brought  this action          against defendants, alleging that during two trips between May 23          and June  7,  the  SEAFARER  dragged  through  CEH's  trawls  and          destroyed 671 traps.1               The SEAFARER  is a trawler that  drags for fish by  way of a          net extending beyond its  stern.  During May and June,  1992, the          SEAFARER was dragging for  monkfish, a fish found near  the ocean          floor,  often  in  close  proximity  to  high  concentrations  of          lobster.  The shared migrations of these  species typically cause          an  overlap in  the operating  areas of draggers  and lobstermen,          causing  tensions  between the  two groups.   The  close quarters          result in inevitable gear  conflicts, with trawlers often hauling          up lobster traps unintentionally.   Trawlers generally dispose of          damaged,  destroyed  or  abandoned  traps  ("ghost  gear"),   but          customarily return working traps ("fixed gear") to their owner.                During  her first  trip,  May 23  to  May 24,  the  SEAFARER          operated under the direction of Captain Roger Smith, with Charles          Niles  serving  as  mate.   On  May 24,  the  captain  of another          lobstering vessel observed the SEAFARER in the area of several of                                        ____________________               1  CEH initially accused defendants of destroying  all 1,093          traps, but amended this figure upon discovering that the SEAFARER          did not tow in certain regions.                                           -4-          the COURTNEY ELIZABETH's trawls,  and, through his wife, informed          Timothy Handrigan,  the vice-president  of CEH, that  his lobster          trawls  were at risk.   The next  day, Handrigan  called Niles in          order to  advise  Niles  of the  location  of his  gear.    Niles          responded that he did not need this information.               Niles captained the second trip of the SEAFARER, from May 28          through June 7, 1992.  Also on board were John  McKay (mate), and          deckhands  Phien Hoang, Niles Pearsall and Richard Baker.  Except          for  Baker,  who  was  Captain  Niles'  nephew,  all  crewmembers          regularly  worked on  the SEAFARER.   On  May 29,  Captain Robert          Buffinton  of the F/V EDNA  MAE observed the  SEAFARER near fixed          gear  of the COURTNEY ELIZABETH.   Upon approaching the SEAFARER,          he observed 20 unidentifiable lobster traps on board its deck.                 Over the next few days, the SEAFARER hauled up and discarded          approximately  200 traps,  about 140  of which  constituted fixed          gear.   In addition, the crew  cut loose trawl lines  that became          entangled in  the nets of  the vessel.   In  total, the  SEAFARER          destroyed 134 of CEH's traps.               CEH commenced  this action against the  ship's owner, Doyle,          and  the  two captains,  Niles and  Smith,  in personam,  and the          SEAFARER  in  rem,  pursuant  to the  district  court's  maritime          jurisdiction.  See 28 U.S.C.   1333; Executive Jet Aviation, Inc.                         ___                   ____________________________          v.   City  of  Cleveland,  409  U.S.  249  (1972).    CEH  sought               ___________________          compensatory damages for negligence, and punitive damages for the          willful destruction of  its property.   Following a bench  trial,          the  court absolved  Captain Smith  of  all liability,  but found                                         -5-          Niles and the  vessel at fault  for destroying plaintiff's  gear.          The court further found that Niles acted in reckless disregard of          CEH's  property rights by towing through its fixed gear, and that          he acted intentionally  and maliciously in  ordering his crew  to          cut trawl lines.   The court awarded CEH compensatory  damages in          the  amount  of  $6,759.81  jointly  and  severally  against  all          parties, punitive damages against Captain Niles  in the amount of          $10,000, and punitive damages against Michael Doyle in the amount          of $50,000.               Defendants attack the legal and factual bases of the court's          award.  We address these issues seriatim.                           II.  SUFFICIENCY OF THE EVIDENCE                           II.  SUFFICIENCY OF THE EVIDENCE               To establish liability for negligence under general maritime          law, CEH needed to prove by a preponderance  of the evidence that          the  SEAFARER destroyed  CEH's traps,  and that  such destruction          could  have  been  reasonably avoided.    1st  Bank Southeast  of                                                    _______________________          Kenosha, Wis. v. M/V Kalidas, 670 F. Supp. 1421,  1431 (E.D. Wis.          _____________    ___________          1987);  see Burgess  v. M/V Tamano,  564 F.2d 964,  977 (1st Cir.                  ___ _______     __________          1977).                 Defendants'  core argument  is  that the  evidence fails  to          demonstrate that the SEAFARER  destroyed any of CEH's traps.   We          review  this  factual  issue  in  accordance  with  the  "clearly          erroneous"  standard  of  Fed. R.  Civ.  P.  52(a).   DiMillo  v.                                                                _______          Sheepscot  Pilots,  Inc.,  870 F.2d  746,  749  (1st  Cir. 1989).          ________________________          Unless, after examining the record and according due deference to          the  trial  court, we  form a  "strong  unyielding belief  that a                                         -6-          mistake has been made," we will adopt the court's findings.  Juno                                                                       ____          SRL v. S/V Endeavour, 58 F.3d 1, 4 (1st Cir. 1995).          ___    _____________               The district court  determined that  the SEAFARER  destroyed          134  of  CEH's traps  and  related  gear  through  the  following          specific  findings:  the  SEAFARER dragged through  Trawl 114 (50          wire traps) on May 31,  and Trawls 16 (50 wire traps) and  60 (34          A-frame  wooden pots)  on June  1, 1992.    In arriving  at these          findings, the district court relied on a wealth of circumstantial          evidence,  all  of which  is set  forth  in the  district court's          opinion,  and need  not  be repeated  here  in entirety.    After          scrutinizing this evidence, we conclude that the inferences drawn          by  the district court  were plausible.   As such, we  affirm the          court's  findings.  Cumpiano v.  Banco Santander Puerto Rico, 902                              ________     ___________________________          F.2d  148, 152  (1st  Cir. 1990)  (quoting  Anderson v.  City  of                                                      ________     ________          Bessemer City,  470 U.S.  564, 573-74  (1985)  ("If the  district          _____________          court's  account of  the evidence  is plausible  in light  of the          record reviewed in  its entirety,  the court of  appeals may  not          reverse it  even though convinced that had it had been sitting as          the  trier  of   fact,  it  would   have  weighed  the   evidence          differently.")).               In light of  the factual  complexity of this  case, we  will          discuss in some detail the key evidence that supports the court's          findings.  The court relied primarily on the testimony of crewman          Baker, and on a  comparison of the logbooks  of the SEAFARER  and          the COURTNEY ELIZABETH.                                         -7-               Baker testified that during the trip:  1) the SEAFARER often          operated within 50 to 100  yards of high fliers; 2) a  high flier          belonging  to CEH was  towed behind the boat;  3) about 200 traps          were brought on  deck of  the SEAFARER and  dumped overboard;  4)          approximately 140 of these traps  were reusable, and roughly  115          of these belonged  to the  COURTNEY ELIZABETH; and  5) Baker  and          other crewmembers regularly cut  trawl lines that hung up  on the          doors  of the  net.   Baker also  asserted that  after the  trip,          Charles Niles phoned  him in an  effort to induce Baker  to alter          his recollection of the trip.               Baker's   testimony,  taken  alone,   permits  a  reasonable          inference that  the SEAFARER destroyed  a number of  CEH's traps.          In response, defendants  argue that each of Baker's assertions is          in conflict  with  the testimony  of  the other  crewmembers  and          Captain  Niles.   The  district court,  however,  was within  its          prerogative to  find Baker  "wholly credible"  while disbelieving          the other witnesses.  See Rivera-Gomez v. de Castro,  900 F.2d 1,                                ___ ____________    _________          4 (1st Cir. 1990).               To  pinpoint  the  dates   on  which  specific  trawls  were          destroyed, the  court used the log books  of both vessels to plot          the course of the  SEAFARER against the position of  the COURTNEY          ELIZABETH's  lobster  trawls.    The court  determined  that  the          SEAFARER's path  intersected the groundlines of  the three trawls          on May 31 and June 1.                 Defendants  contend that inherent  inaccuracies in the Loran          system and rounding errors  in the log books render  a comparison                                         -8-          of the logs  misleading.  Their  expert, Thomas Bushy,  testified          that the cumulative effect of all possible errors could cause two          separately  recorded identical readings to be  up to 1.6 nautical          miles apart.  Nevertheless,  on cross examination, Bushy admitted          that this figure was  the absolute worst case scenario;  that, in          fact, he  did not know  whether either vessel's  system contained          correction factors  that would  have reduced possible  error; and          that the  locations of the  tows and  the trawls could  have been          much  closer  together.   Upon  examining  the whole  of  Bushy's          testimony,  we find  no error  in the  court's plotting  of Loran          coordinates to reach its specific findings.                 Baker's testimony, in conjunction with the court's  analysis          of the  ship logs,  provides sufficient  evidence to support  the          court's conclusion that the SEAFARER destroyed Trawls  16, 60 and          114 on May 31 and June 1, 1992.  Niles' failure to take any steps          to  avoid CEH's traps, as  demonstrated by his  disregard for the          presence  of high  fliers and  his  rejection of  the information          offered by Handrigan, establish, at the very least, negligence on          his part.               Because the  facts set forth above  sufficiently support the          court's   disposition,   we    need   not   address   defendants'          miscellaneous   objections  to  other  pieces  of  circumstantial          evidence.  In any  event, we find  them unpersuasive.  We  uphold          the court's  finding of negligence  and its concomitant  award of          compensatory damages.                                 III.  PUNITIVE DAMAGES                                III.  PUNITIVE DAMAGES                                         -9-               The  defendants  raise  four  challenges  to  the  award  of          punitive  damages:  1) both  Niles and Doyle  claim that punitive          damages are unavailable as a matter of law in a maritime case; 2)          both  claim   that  punitive  damages  are   unjustified  by  the          underlying  conduct  in  this  case; 3)  Doyle  claims  that such          damages  may  not  be   awarded  against  him  through  vicarious          liability; and 4) both claim that the awards imposed against them          are excessive.           A.  Punitive Damages Under General Maritime Law          A.  Punitive Damages Under General Maritime Law               We review  de novo  the district court's  determination that                          __ ____          punitive damages are recoverable pursuant to  plaintiff's general          maritime claims.  See In re Extradition of Howard, 996 F.2d 1320,                            ___ ___________________________          1327 (1st Cir. 1993).                  Although  rarely imposed,  punitive damages  have  long been          recognized  as an  available remedy  in general  maritime actions          where  defendant's intentional  or  wanton  and reckless  conduct          amounted  to a conscious disregard of  the rights of others.  See                                                                        ___          The Amiable Nancy, 16  U.S. (3 Wheat.) 546, 558  (1818) (criminal          _________________          trespass);  Muratore v. M/S Scotia Prince, 845 F.2d 347, 354 (1st                      ________    _________________          Cir.  1988)  (intentional  infliction  of   emotional  distress);          Protectus Alpha  Navigation Co.  v. North Pacific  Grain Growers,          _______________________________     ____________________________          767 F.2d 1379,  1385 (9th Cir.  1985) (destruction of  property);          Robinson  v. Pocahontas, Inc.,  477 F.2d 1048,  1051-52 (1st Cir.          ________     ________________          1973) (willful failure to pay maintenance and cure); In re Marine                                                               ____________          Sulphur  Queen, 460 F.2d 89, 105 (2d Cir. 1972) (wrongful death);          ______________          Pino  v. Protection Maritime Ins.  Co., 490 F.Supp.  277, 281 (D.          ____     _____________________________                                         -10-          Mass.  1980)  (tortious  interference  with  employment  rights);          Dredge General, 1944  A.M.C. 948, 948 (S.D.  Fla. 1944) (property          ______________          damage);  The Ludlow, 280 F. 162, 163 (N.D. Fla. 1922) (malicious                    __________          and unlawful arrest); The Seven Brothers, 170 F. 126, 127 (D.R.I.                                __________________          1909) (property damage); Gallagher v. The Yankee, 9 F. Cas. 1091,                                   _________    __________          1093 (N.D. Cal. 1859)  (No. 5,196) (unlawful deportation), aff'd,                                                                     _____          30 F.  Cas. 781 (C.C.N.D. Cal. 1859) (No. 18,124); Ralston v. The                                                             _______    ___          States  Rights, 20  F.  Cas. 201,  209-10  (E.D. Pa.  1836)  (No.          ______________          11,540) (collision).               Nevertheless, in the wake of Miles v. Apex Marine Corp., 498                                            _____    _________________          U.S. 19 (1990),  courts have been increasingly  hesitant to allow          punitive damages  in certain general  maritime actions  involving          personal injury or death.   In Miles, the Court held, inter alia,                                         _____                  _____ ____          that damages recoverable in an action for the wrongful death of a          seaman do not include  loss of society.  Id. at 37.   In reaching                                                   ___          this conclusion,  the Court  enunciated principles  of uniformity          relevant to wrongful death actions, and more broadly, to maritime          tort law, which have moved subsequent courts to limit recovery in          other similar contexts.  Defendants ask us to extend Miles to bar                                                               _____          recovery  of  punitive damages  in  all  general maritime  cases.          However,  as described  more  fully below,  we  believe Miles  is                                                                  _____          inapposite to plaintiff's maritime claim.               In Miles, the mother of a deceased seaman brought a wrongful                  _____          death action sounding both in negligence under the Jones Act, and          unseaworthiness  under  the general  maritime  law.   In  denying          recovery  for loss of society, a form of nonpecuniary relief, the                                         -11-          Court ensured a uniform scheme of recovery regardless of  whether          a wrongful death action  was brought under the Death on High Seas          Act  (DOHSA),2  the Jones  Act3 or  general  maritime law.4   The          statutory actions  provided only for pecuniary  relief: the DOHSA          explicitly5   and  the   Jones   Act  implicitly,   through   its          incorporation of  the Federal  Employers'  Liability Act  (FELA),          which,  prior to  the  enactment  of  the  Jones  Act,  had  been          construed to allow only pecuniary relief.   Miles, 498 U.S. at 32                                                      _____          (citing Michigan Cent.  R. Co.  v. Vreeland, 227  U.S. 59,  69-71                  ______________________     ________          (1913)).     The   Court   extended  this   restriction  to   the          unseaworthiness   claim,   explaining   that   "[i]t   would   be          inconsistent with our place in the constitutional scheme  were we          to sanction more expansive remedies in a judicially created cause          of action in which  liability is without fault than  Congress has                                        ____________________               2    DOHSA,  46  U.S.C.      761,  authorizes  the  personal          representative of the decedent to bring an action "[w]henever the          death of  a person shall  be caused by wrongful  act, neglect, or          default occurring on the high seas."                3   The Jones Act, 46  U.S.C.   688, provides  that a seaman          injured  in the  course of employment,  or his  representative in          case of death, may  "maintain an action for damages at  law . . .          and in such action all statutes of the United States modifying or          extending the common-law  right or  remedy in  cases of  personal          injury to railway employees shall apply."               4  In Moragne v. States Marine Lines, Inc. 398 U.S. 375, 409                     _______    _________________________          (1970),  the  Court  recognized  a wrongful  death  action  under          general  maritime   law.    Prior  to   Moragne,  plaintiffs  not                                                  _______          satisfying the requirements of DOHSA or the Jones Act had to rely          on state  wrongful death  acts, which,  if  they existed,  varied          greatly in nature and scope.               5   Recovery under DOSHA  is limited to  "the pecuniary loss          sustained  by the persons for whose benefit the suit is brought."          46 U.S.C.   762.                                         -12-          allowed in cases  of death  resulting from negligence."   Id.  at                                                                    ___          33.6                The Court's  decision to "restore a  uniform rule applicable          to  all actions  for  the  wrongful  death  of  a  seaman,"  id.,                                                                       ___          logically followed the principle espoused in Moragne, 398 U.S. at                                                       _______          401-02  (quoting The  Lottawanna,  88 U.S.  (21  Wall.) 558,  575                           _______________          (1875)), to promote "uniformity [that] not  only will further the          concerns of  both of the 1920  Acts but also will  give effect to          the constitutionally  based principle that federal  admiralty law          should  be 'a  system  of  law  coextensive with,  and  operating          uniformly in,  the whole country.'"   Though these  principles of          uniformity defy  precise  limits,  we  think it  clear  that  the          Supreme  Court had  in  mind  the  need  to  defer  to  statutory          enactments  addressing like issues.   As the  Court reasoned: "In          this  era, an  admiralty  court should  look  primarily to  these          legislative enactments for policy  guidance. . . . [and]  must be          vigilant not to  overstep the well-considered boundaries  imposed          by  federal legislation."    Miles,  498  U.S.  at  27.    Miles,                                       _____                         _____          therefore, does not,  as defendants contend,  signify a call  for          universal  uniformity  of   maritime  tort  remedy,   but  rather                                        ____________________               6   A shipowner's breach of the warranty of seaworthiness, a          strict liability obligation, see Miles, 498 U.S.  at 25, provided                                       ___ _____          a  basis of liability under the general maritime law.  Therefore,          a plaintiff suing for  the wrongful death of a seaman could bring          a Jones Act claim, which required a showing of negligence, and/or          a  general  maritime  unseaworthiness  claim,  which required  no          showing  of  fault.    Yet  under  the  unseaworthiness claim,  a          plaintiff could anticipate, potentially, a much greater  recovery          than under the Jones Act.                                         -13-          emphasizes the importance of uniformity in the face of applicable          legislation.               The  cases  post-Miles   reflect  this  focus  on   relevant                                _____          legislation.  If  the factual situation  could support an  action          under  either DOHSA or the Jones Act, then nonpecuniary relief is          unavailable.  See, e.g., Horsley v. Mobil Oil Corp., 15 F.3d 200,                        ___  ____  _______    _______________          203  (1st  Cir.  1994)   (punitive  damages  not  recoverable  in          unseaworthiness action  for injured  seaman); Miller  v. American                                                        ______     ________          President  Lines,  Ltd., 989  F.2d  1450,  1459 (6th  Cir.  1993)          _______________________          (punitive damages not available in unseaworthiness action for the          wrongful death of a seaman);  Rollins v. Peterson Builders, Inc.,                                        _______    _______________________          761 F. Supp. 943, 950 (D.R.I. 1991) (same).               The import of  this legislation in  the context of  personal          injury  has  led  some  courts  to  bar  nonpecuniary  relief  in          circumstances addressed by the Jones Act, but involving non-Jones          Act plaintiffs and defendants.  See,  e.g., Wahlstrom v. Kawasaki                                          ___   ____  _________    ________          Heavy  Industries,  Ltd.,  4  F.3d  1084,  1094  (2d  Cir.  1993)          ________________________          (concluding, based  in large  part on post-Miles  authority, that                                                     _____          representatives  of  a  deceased  nonseaman  could  not   recover                                            _________          punitive  damages under  the general  maritime law);   Trahan  v.                                                                 ______          Texaco,  Inc.,  625  So.2d 295,  297  (La.  App.  4th Cir.  1993)          _____________          (dismissing  a  general maritime  claim  for  loss of  consortium          brought  by a  seaman's  spouse  against nonemployer  third-party                                                   ___________          defendants); but see, e.g.,  Emery v. Rock Island Boatworks,  847                       ___ ___  ____   _____    _____________________          F.  Supp.  114,  117-18  (C.D. Ill.  1994)  (injured  passenger's          husband could recover nonpecuniary  damages because his claim not                                         -14-          cognizable under the Jones Act or DOHSA and, therefore,  concerns          for  uniformity do not exist); Sugden v.  Puget Sound Tug & Barge                                         ______     _______________________          Co.,  796 F. Supp.  455, 457 (W.D. Wash.  1992) (wife of deceased          ___          seaman  could  recover  nonpecuniary  damages  from  non-employer          because husband  was not a Jones  Act seaman for purposes  of the          suit).               Recently, the  Fifth Circuit held that  cure and maintenance          claims,  often considered  to lack  a statutory  counterpart, see                                                                        ___          Anderson v. Texaco, Inc., 797 F. Supp. 531, 536 (E.D.  La. 1992),          ________    ____________          were, in fact, governed  by Miles.  Guevara v.  Maritime Overseas                                      _____   _______     _________________          Corp., 59 F.3d 1496, 1512 (5th Cir. 1995) en banc; see also Glynn          _____                                              ___ ____ _____          v. Roy Al  Boat Management Corp., 57 F.3d  1495 (9th Cir. 1995).7             _____________________________          While at first  glance, Guevara  may seem to  provide comfort  to                                  _______          defendants,  a  closer reading  supports  our  belief that  Miles                                                                      _____          simply is irrelevant here.               Guevara followed the  approach set forth  in Miles.   First,               _______                                      _____          the  court determined whether the factual setting of the case was          covered by a  statute like the Jones  Act or DOHSA.   59 F.3d  at          1506.    Then,  upon  finding a  statutory/general  maritime  law          overlap,8   the  court  invoked  the  "Miles  damages  uniformity                                                 _____                                        ____________________               7    Glynn and  Guevara  reached  identical results  through                    _____      _______          different  means.   Though concluding  that limiting  recovery in          cure and maintenance claims was  consistent with Miles, the Ninth                                                           _____          Circuit relied  primarily  on its  conclusion that  there was  no          legal  support for  punitive damages in  such cases.   57 F.3d at          1504-05.               8  The Fifth Circuit delineated two types of maintenance and          cure actions:  one based in tort involving the deterioration of a          seaman's health due  to failure to provide maintenance  and cure;          and one  based in  contract, not  requiring personal injury,  but                                         -15-          principle"  and excluded punitive damages.   Id. at  1512-13.  As                                                       ___          the  court  reasoned,  "[i]t  makes  little  sense  to  create  a          fragmentation of  admiralty law  by allowing punitive  damages in          one  class of maintenance and  cure cases" while disallowing them          in another.  Id. at 1513.                         ___               Guevara does not assist  defendants in any way.   Rather, it               _______          merely illustrates, as do the other post-Miles cases cited above,                                                   _____          that  Miles  may be  applicable in  those  areas of  maritime law                _____  ___          where, at the very  least, there is an overlap  between statutory          and decisional law.   In the instant  case, however, there  is no          legislation  whatever that  touches upon  circumstances involving          the  reckless or willful destruction of  property.  Quite simply,          Congress has not spoken,  and we consequently see no  basis under          Miles for barring nonpecuniary relief here.              _____               Defendants' contention that it  would be peculiar to provide          plaintiffs greater  relief for property damage  than for personal          injury  has some force.  The concern expressed in Miles, however,                                                            _____          was  not  with respect  to an  award  of nonpecuniary  damages in          maritime   cases  in   general,   but  with   inconsistency  with          Congressional pronouncement.   Miles  does not mandate  a uniform                                         _____          result for every maritime  action and we are hesitant  to ascribe          to the Court a holding that goes  well beyond any issue discussed                                        ____________________          claiming reimbursement  for the personal  outlay of funds.   Even          though  Guevara  brought the  latter type  of claim,  because the          tort-like action  "overlaps with the personal  injury coverage of          the  Jones  Act,"  id. at  1511,  the  court  concluded that  the                             ___          legislative scheme affected his recovery.                                              -16-          there.  See United States v. London, 66 F.3d 1227, 1241 (1st Cir.                  ___ _____________    ______          1995).                 In sum, in the absence of any relevant legislation, we think          that   the   uniformity   principle   enunciated   in  Miles   is                                                                 _____          inapplicable.   Therefore,  plaintiffs are  entitled to  forms of          relief  traditionally available  under the general  maritime law,          including punitive damages.   Accordingly, we affirm the district          court's determination that punitive damages are recoverable under          plaintiff's general maritime claim.          B.  Niles' Conduct          B.  Niles' Conduct               Having  held that  punitive  damages are  available, we  now          address  defendants'  claim  that  the district  court  erred  in          finding that Niles' conduct warranted them.               The award of punitive damages is within the sound discretion          of the district court.  Muratore, 845 F.2d at 354.  We review the                                  ________          factual findings in support of the award for clear error.  Bergen                                                                     ______          v. F/V St. Patrick, 816 F.2d 1345, 1349  (9th Cir. 1987).  And we             _______________          reiterate that  the only circumstances  that support an  award of          punitive damages are "where defendant's actions were intentional,          deliberate  or  so  wanton  and  reckless  as  to  demonstrate  a          conscious disregard of the rights of others."  Muratore, 845 F.2d                                                         ________          at 354.               The court  awarded punitive damages upon  finding that Niles          acted in reckless  disregard for  the property rights  of CEH  in          towing  through   its   trawls,  and   acted  intentionally   and          maliciously in  destroying trawl  lines and traps.   In  reaching                                         -17-          these  conclusions,   the  district  court  relied   on  evidence          pertaining  to the time before,  during and after  the conduct in          question.                 The  testimony indicated that prior  to May 1992, apart from          the general  conflict between lobstermen and  trawlers, Niles and          the Handrigans had been  involved in a dispute over  a generator.          As a result of this row, Niles, as a matter of custom, refused to          return any  gear  to the  COURTNEY  ELIZABETH regardless  of  its          condition.   Niles  also acknowledged  that, at  the time  of the          trip,  he was  aware  that the  COURTNEY  ELIZABETH was  laid  up          undergoing repairs.               Niles'  actions  during  the  trip, as  reported  by  Baker,          directly  support the court's findings.   Early on, Niles ordered          that "no  gear comes home, and  all traces of lines  and stuff go          over  board."   Later,  Niles  operated  the  SEAFARER  in  close          proximity to high fliers, and at  one point, dragged a high flier          behind the  boat.  His  crewmen cut and  disposed of  trawl lines          that became entangled  in the  nets of the  SEAFARER, and  dumped          overboard  all  gear brought  on  board,  including all  workable          traps.  Niles  even joked about  selling gear back to  the owner.          After  the trip,  Niles phoned  Baker in  an effort  to influence          Baker to change his story.  The district court, quite accurately,          characterized Niles' explanation of this  call -- to get  Baker's          phone number --  as "to  say the least  foolish, circuitous,  and          illogical."                                         -18-               Defendants,  again, protest  that these  findings are  based          solely on Baker's  testimony; again,  this is of  no avail.   See                                                                        ___          Rivera-Gomez, 900 F.2d at 4.  And, even if defendants are correct          ____________          that  there is inconclusive proof that each line cut or each trap          dumped belonged  to  CEH, the  record contains  more than  enough          factual support  to  demonstrate  Niles'  willful  and  malicious          conduct  toward CEH.  Therefore,  we affirm the  court's award of          punitive damages against Niles.            C.  Vicarious Liability          C.  Vicarious Liability               The district  court found Doyle liable  for punitive damages          under the standard enunciated in  Restatement (Second) of Torts                                              _____________________________          909(c),9  because  Doyle  delegated "nearly  absolute  managerial          authority" to Niles.   The adoption of the Restatement  rule as a                                                     ___________          basis  of liability  is a  question of  first impression  in this          circuit,  although we alluded to it in Muratore, 845 F.2d at 354-                                                 ________                                        ____________________               9  Section 909 states:                    Punitive damages can properly be awarded against a               master or  other  principal because  of  an act  by  an               agent, if but only if,                     (a) the principal or  a managerial agent authorized the                    doing and the manner of the act, or                    (b)  the  agent  was  unfit  and  the  principal  or  a          managerial          agent  was reckless in employing or retaining          him, or                    (c) the agent was employed in a managerial capacity and                        ___________________________________________________                    was acting in the scope of employment, or                    _____________________________________                    (d)  the  principal  or   a  managerial  agent  of  the          principal           ratified or approved the act.          (Emphasis added.)                                         -19-          56.       Muratore concerned  the liability  of a  ship charterer                    ________          for the  acts of ship photographers  that constituted intentional          infliction of emotional distress.   We discussed three approaches          courts have taken  when addressing the  liability of a  principal          who  neither  authorizes  nor  ratifies  her  agent's misconduct.          Under   the  majority  approach,  punitive  damages  are  treated          indistinguishably   from   compensatory  ones,   and  traditional          respondeat  liability attaches.  Id. at 354.  Principals are held                                           ___          accountable  for their  agents'  misdeeds that  occur within  the          scope of  employment.   In  contrast, a  significant minority  of          courts follow the strict  complicity rule of Lake Shore  & M.S.R.                                                       ____________________          Co.  v. Prentice,  147  U.S. 101  (1893), which  limits principal          ___     ________          liability to those acts  participated in, authorized or ratified.          Finally,  the   Restatement  rule  incorporates  the  Lake  Shore                          ___________                           ___________          limitation but extends liability,  regardless of authorization or          ratification, to acts committed by a  managerial agent within the          scope of employment.  845 F.2d at 355.               In  Muratore,  we  declined  to follow  the  majority  view,                   ________          favoring a more limited approach to "ensure that punitive damages          are  awarded   against  the   guilty  offender."  Id.     Further                                                            ___          discriminating   between   the   latter  two   formulations   was          unnecessary as the  plaintiff did not satisfy the requirements of          either one.  Now, however, our determination of Doyle's liability          hinges upon which standard we adopt, because although there is no          evidence that  Doyle authorized, ratified or  participated in the                                         -20-          wrongdoing,  it  is  clear   that  Niles  meets  the  "managerial          capacity" criteria.               We  turn  first to  precedent.   In  The Amiable  Nancy, the                                                    __________________          Supreme Court rejected the imposition of punitive damages against          the  owners of  THE  SCOURGE for  the  privateering acts  of  her          captain  and  crew because   "[the  owners]  are innocent  of the          demerit  of this  transaction,  having neither  directed it,  nor          countenanced it, nor participated in it in the slightest degree."          16  U.S.  (3  Wheat.)  546,  559  (1818).    The  requirement  of          complicity of some sort became further entrenched in Lake  Shore,                                                               ___________          where in rejecting  a punitive  award against a  railway for  the          harassing conduct of its train conductor, the Court stated:                    Exemplary  or punitive damages, being awarded, not               by way of compensation  to the sufferer, but by  way of               punishment of the offender, and as a warning to others,               can only be awarded against one who has participated in               the offence.  A  principal, therefore, though of course               liable to  make compensation  for injuries done  by his               agent  within the  scope of  his employment,  cannot be               held liable for  exemplary or punitive  damages, merely               by reason of wanton,  oppressive or malicious intent on               the part of the agent.          147 U.S.  at 107.  Although Lake Shore was not an admiralty case,                                      __________          a  number of  admiralty  courts have  followed this  proposition,          rejecting  liability  absent principal  complicity of  some sort.          See,  e.g., Matter of P & E Boat Rentals, Inc., 872 F.2d 642, 652          ___   ____  __________________________________          (5th Cir. 1989); U.S. Steel Corp. v. Fuhrman, 407 F.2d 1143, 1148                           ________________    _______          (6th  Cir. 1969);  Jones v. Compagnie  Generale Maritime,  882 F.                             _____    ____________________________          Supp. 1079, 1086 (S.D. Ga. 1995); The Seven Brothers, 170 F. 126,                                            __________________          127 (D.R.I. 1909).                                           -21-               In Fuhrman, the Sixth Circuit reversed an award of  punitive                  _______          damages against U.S. Steel for the actions of one of its captains          who decided to try to beach his holed  vessel rather than abandon          ship.  The court took the position that the captain in good faith          used his  best judgment, not irrational  under the circumstances,          "for the  benefit of all concerned."   407 F.2d at  1147.  Rather          than rest on  this conclusion, which  would make unnecessary  any          consideration of  the vessel owner's liability,  the court opined          that "even if" the captain's actions warranted punitive damages:                    We think the better  rule is that punitive damages               are not recoverable against  the owner of a vessel  for               the act of the  master unless it can be shown  that the               owner  authorized or  ratified the  acts of  the master               either before or after  the accident.  Punitive damages               also  may be recoverable if the acts complained of were               those  of an unfit master and the owner was reckless in               employing him.          Id. at 1148.          ___               The Fifth Circuit followed Fuhrman in  Matter of P & E  Boat                                          _______     _____________________          Rentals,  Inc., 872  F.2d at  652.   That case  involved multiple          ______________          wrongful  death   and  personal  injury  claims  brought  against          Chevron,  USA, following a  serious collision  caused in  part by          Chevron  foremen who  directed  a charter  vessel  to operate  in          extremely foggy conditions.  The court  observed that the foremen          were  low level  supervisors with  no policymaking  authority and          stated:                      We hold  simply that  punitive damages may  not be               imposed against a corporation  when one or more of  its               employees decides on his own  to engage in malicious or               outrageous conduct.   In  such a case,  the corporation               itself  cannot be  considered  the wrongdoer.   If  the               corporation  has formulated  policies and  directed its               employees  properly,  no  purpose would  be  served  by                                         -22-               imposing punitive damages against it except to increase               the amount of the judgment.            Id.            ___               In  contrast,   the  Ninth   Circuit,  in  Protectus   Alpha                                                          _________________          Navigation Co.  v. North  Pacific Grain  Growers, Inc.,  767 F.2d          ______________     ___________________________________          1379 (9th Cir. 1985), expressly adopted the Restatement rule.  In                                                      ___________          that  case, North  Pacific's dock  foreman set  adrift a  burning          vessel in defiance  of firemen's  orders.  This  conduct in  part          caused the destruction of the vessel and the  death of a fireman.          Because the  foreman acted  with "reckless or  callous disregard"          for  the  rights  of  Protectus  Alpha,  and  because  he  was  a          managerial employee of North  Pacific acting in the scope  of his          employment, the  court upheld the imposition  of punitive damages          against North Pacific.  Id. at 1385-87.                                  ___               Justifying its  adoption of the Restatement  rule, the court                                               ___________          reasoned:                    We  believe the standard of the Restatement better               reflects the  reality of modern corporate  America.  We               agree  that  a corporation  can  act  only through  its               agents   and   employees,   and  that   no   reasonable               distinction  can  be  made  between the  guilt  of  the               employee  in a  managerial  capacity acting  within the               scope  of   his  employment   and  the  guilt   of  the               corporation.  22  Am.Jur.2d, Damages   261  (1965).  It               seems obvious that  no corporate executive or  director               would  approve  the  egregious acts  to  which punitive               damages  would attach, and,  therefore, no recovery for               more  than  compensatory  damages  could  ever  be  had               against  a  corporation  if  express  authorization  or               ratification were always required.          Id. at 1386.          ___               In  sum,  both  approaches  draw  support   from  precedent.          Although  the  Supreme  Court  cases  cited  adopted  the  strict                                         -23-          complicity view,  we do not believe the  early nineteenth century          decision  in   The  Amiable   Nancy  and  the   late  nineteenth,                         ____________________          nonadmiralty  decision in  Lake  Shore dictate  the result  here.                                     ___________          Neither  considered the  more  modern concerns  reflected in  the          contrary caselaw and, indeed, the  Court has indicated that  Lake                                                                       ____          Shore may have  been unduly  restrictive even for  its own  time.          _____          American  Society  of  Mechanical Engineers,  Inc.  v. Hydrolevel          __________________________________________________     __________          Corp.,  456  U.S. 556,  575 n.14  (1982)  ("[T]he Court  may have          _____          departed from  the trend of  late 19th-century decisions  when it          issued  Lake Shore.").    We  note,  moreover, that  most  courts                  __________          outside the maritime context  do not follow Lake Shore.   Id.; W.                                                      __________    ___          Page Keeton,  et al., Prosser and  Keeton on the Law  of Torts 13                                ________________________________________          (5th  ed.  1984).     This  growing  body  of  precedent   is  of          significance because  we discern no reason,  and defendants point          to none, why vicarious liability should be treated differently on          sea than on  land.   See Archer v.  Trans/American Services,  834                               ___ ______     _______________________          F.2d  1570, 1573 (11th Cir. 1988) ("Federal maritime law embraces          the  principles of  agency.").   After  all,  Lake Shore  itself,                                                        __________          though repeatedly  cited by admiralty courts, was  not a maritime          case.                After  giving   both  perspectives  due   consideration,  we          conclude that  strict adherence to the  complicity approach would          shield   a  principal,   who,   though  not   guilty  of   direct          participation,  authorization  or  ratification  in  his  agent's          egregious conduct, nevertheless shares blame for  the wrongdoing.          Therefore,  we  believe that  some  features  of the  Restatement                                                                ___________                                         -24-          approach  are  helpful here.    In our  view,  imposing vicarious          liability on  a principal for the  act of an agent  employed in a          managerial  capacity  and  acting  in  the  scope  of  employment          represents an appropriate  evolution of the  Lake Shore rule,  at                                                       __________          least  when linked to requiring some level of culpability for the          misconduct.                 Our approach today falls short of  wholesale adoption of the          Restatement because section 909(c),  read literally, could impose          ___________          liability in circumstances  that do not demonstrate  any fault on          the  part of  the principal.   Because this  is not  such a case,          however, we need not  resolve whether the Restatement's vicarious                                                    ___________          liability principle would in fact reach so far.               Whatever  the  outer  parameters  of  "managerial  capacity"          liability may be, the district  court supportably found that  the          circumstances here  justified the imposition of  punitive damages          against Doyle.  In so concluding, the district court discussed at          some length the intertwined issues of Niles' managerial authority          and Doyle's culpability in failing to supervise Niles.  Niles had          total  authority  to hire  and fire  the  crew, to  determine the          duration,  location and  targets of  the trips,  and to  sell the          catch  wherever  he  chose.    In  short,  Niles   had  "complete          managerial  discretion over  the means  and methods  of fishing."          Niles set forth and implemented whatever policy, if any, the crew          of  the SEAFARER followed.  Moreover, the decisions made by Niles          directly affected the success of Doyle's fishing business.                                          -25-               This delegation  of complete managerial discretion  was made          notwithstanding Doyle's knowledge that "he had hired his captains          to work in  an atmosphere  characterized in part  by the  tension          that  raged between lobstermen and draggers."  Not only was there          a  complete  delegation  of   authority  in  a  troublesome  work          situation, but also a  complete absence of any policy  directive,          written or oral,  regarding the operation  of Doyle's vessels  in          lobster trawl  areas.   This combination of  circumstances places          this case well within the sphere of culpability.10                As applied here, the imposition of punitive damages, in  the          district court's words, "encourages shipowners to  hire qualified          and responsible  captains and to exercise  supervisory power over          them."  In addition,  it fairly punishes Doyle for his failure to          provide any supervision over his captains.   In short, therefore,          the  district  court's  award  properly serves  the  purposes  of          punitive  damages:  "to punish defendant and to deter others from          engaging   in  like  manner."     Muratore,  845   F.2d  at  354.                                            ________          Accordingly,  we affirm  the  award of  punitive damages  against          Doyle.            D.  The Amount of the Awards          D.  The Amount of the Awards                                        ____________________               10  In addition, these factors further distinguish Matter of                                                                  _________          P & E Boat Rentals and Fuhrman.  In the former case, as indicated          __________________     _______          earlier, the  Fifth Circuit rejected vicarious  liability in part          because the "corporation ha[d] formulated policies."  872 F.2d at          652.   In  the latter,  the Sixth  Circuit, upon  considering the          unique  emergency  circumstances  involved,  concluded  that  the          captain  had "the responsibility to make the final decision as to          what  the proper course of action  must be in view  of all of the          factors concerned."  407 F.2d at 1147.  Here, in contrast, Niles'          misconduct occurred  during the regular course  of operations, an          area where the owner could have and should have set policy.                                         -26-               Finally, we  address defendants' arguments that  the amounts          awarded in punitive  damages were  excessive and in  error.   The          court  assessed punitive  damages against  Niles for  $10,000 and          Doyle for $50,000.               We begin  by  stating two  basic  propositions.   First,  we          review the  district court's determination of  the correct amount          of punitive damages for clear error.  See American Title Ins. Co.                                                ___ _______________________          v.  East  West  Financial, 16  F.3d  449,  461  (1st Cir.  1994).              _____________________          Second,  punitive  damages  are  solely  intended  to  serve  the          purposes  of punishment  and deterrence,  and should  not provide          plaintiff  with a  windfall.  Aldrich v.  Thomson McKinnon  Sec.,                                        _______     _______________________          Inc., 756 F.2d 243,  249 (2d Cir.  1985); Ramsey v. American  Air          ____                                      ______    _____________          Filter Co., 772 F.2d 1303, 1314 (7th Cir. 1985).  Taken together,          __________          we  will not disturb  an award of punitive  damages unless we are          certain that  it is greater  than reasonably necessary  to punish          and deter.  See Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1,                      ___ __________________________    ______          21-22 (1991); Vasbinder  v. Scott,  976 F.2d 118,  121 (2nd  Cir.                        _________     _____          1992)  (quoting Haslip, 499 U.S.  at 21) ("Thus,  the function of                          ______          appellate review of punitive damages is to make 'certain that the          punitive damages are  reasonable in their amount  and rational in          light of their purpose to punish  what has occurred and to  deter          its repetition.'").               The Supreme Court has  rejected a "mathematical bright line"          approach  to the award of punitive damages.   Haslip, 499 U.S. at                                                        ______          18;  TXO Production Corp. v. Alliance Resources Corp., 113 S. Ct.               ____________________    ________________________          2711,  2721  (1993)  (rejecting  "an  approach  that concentrates                                         -27-          entirely  on   the  relationship  between  actual   and  punitive          damages").  Instead, the Court has indicated that an award should          be reasonable  in light of  various considerations,  such as  the          magnitude  of harm caused or potentially caused and the net worth          of the  defendant.  See TXO, 113 S.Ct.  at 2722 & n.28.  Contrary                              ___ ___          to defendants'  exhortations, there  is no general  rule defining          the  maximum  proportion  of  net  worth  that  may  be  exacted.          However,  an award should not result in the defendant's financial          ruin.   Vasbinder, 976 F.2d  at 121; Arceneaux  v. Merrill Lynch,                  _________                    _________     ______________          Pierce, F. & S., 767 F.2d 1498, 1503 (11th Cir. 1985).             _______________               Having set forth these basic considerations, we address each          award  in  turn.    The  assessment  of  $10,000   against  Niles          constitutes  approximately  55%  of  his net  worth  of  $18,250.          Undoubtedly,   this   award   will   cause   financial  hardship.          Nonetheless, we  are satisfied that the  district court carefully          considered   Niles'   financial  status   when   fashioning  this          punishment.   We cannot  hold as a  matter of law  that the award          exceeds an  amount  appropriate for  punishment  and  deterrence,          particularly in light of  Niles' willful misconduct in destroying          CEH's  property and  in  attempting to  conceal that  misconduct.          Therefore, we affirm the amount of Niles' award.                 In  light of  Doyle's higher  net worth,  the  court awarded          punitive damages against  him in  the amount of  $50,000.   Doyle          argues that  it is "fundamentally  unjust" to punish  a principal          who  did not commit  the misconduct  at a  higher level  than the          actual perpetrator.  Notwithstanding the difference in amount, we                                         -28-          note  that,  in  terms  of  net  worth,  Doyle's  punishment   is          proportionately much less than Niles'.  Moreover, it is axiomatic          that any  theory of  vicarious liability will  inevitably involve          charging  liability  upon  a  less  directly involved  principal.          Additionally, the consideration of  Doyle's net worth is integral          to the objectives of punitive damages:  it ensures that the award          is neither too severe nor too trivial.               We cannot, therefore,  conclude as  a matter of  law that  a          $50,000 award here  is clearly  erroneous.  We  affirm the  award          imposed against Doyle.            Affirmed.          Affirmed.          _________                                         -29-
