

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 &amp; 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  &amp; 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 &amp; 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 &amp; 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 &amp; 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 &amp; 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. &amp; 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-
