
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1798                               CONCORDIA COMPANY, INC.,                                Plaintiff - Appellee,                                          v.                                    ANTHONY PANEK,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS              [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]                                            __________________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Selya, Circuit Judge,                                       _____________                             and Saris,* District Judge.                                         ______________                                _____________________               Richard H.  Gens, with  whom Lawrence  M. Perlmutter  was on               ________________             _______________________          brief for appellant.               Stephen C. Fulton,  with whom Law Office of Bruce R. Fox was               _________________             __________________________          on brief for appellee.                                 ____________________                                     June 4, 1997                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    SARIS, District Judge.   This case  began with a  bang.                    SARIS, District Judge.                           ______________          In the early morning hours of March 29, 1993, Gerald Chapman, the          night  watchman  at  Concordia   Company's  boat  yard  in  South          Dartmouth,  Massachusetts, awoke  to the  sound of  an explosion.          The PROWLER, a pleasure boat owned by Anthony Panek and moored at          the boat yard, burst into flames.  Although fire fighters arrived          in only  a few minutes, by  the time they  extinguished the blaze          the  PROWLER was still afloat  but burned almost  to its gunnels.          However, by morning the PROWLER had sunk beneath the briny waters          of Apponagansett Bay, leaving an oil slick in its wake.                      A lawsuit ensued.  Concordia filed a complaint alleging          a single count in admiralty for  its costs of cleaning up the oil          and hauling the  remains of the  PROWLER out of  the Bay.   Panek          counterclaimed for the damage done  to his boat, alleging  causes          of action for breach  of contract, negligence, misrepresentation,          and a violation of Chapter 93A of the Massachusetts General Laws.          Panek  alleged  generally  that  Concordia did  not  fulfill  its          promise  to provide adequate security  at the boat  yard and that          the lack  of security caused the  fire.  Panek also  alleged that          Concordia  should  have prevented  the  PROWLER  from sinking  by          adequately securing it to the dock while it was still afloat.                    The case  was  tried  to the  district  court  with  an          advisory jury.   The district  court found for  Concordia on  its          admiralty  claim for  all  of its  clean  up and  hauling  costs.          However, it also found for Panek on his claims that Concordia was          negligent and breached its contractual duty to secure the boat by                                         -2-          failing to remove the hull of the boat from the water when it was          still floating.  The  Court awarded damages to  Panek for all  of          the  clean up and  half the hauling  costs, which  resulted in an          offset  judgment for Concordia for half of its hauling costs.  On          appeal, Panek argues that the district court erred by denying his          request for  a jury trial  on his common  law counterclaims.   We          affirm.                              I.  PROCEDURAL BACKGROUND                              I.  PROCEDURAL BACKGROUND                    Concordia's  complaint  included  a   single  admiralty          count, was captioned "In Admiralty", and stated it was within the          court's admiralty and maritime jurisdiction  as set forth in Fed.          R. Civ.  P. 9(h).   Plaintiff  made no demand  for a  jury trial.          Panek's  pleading  containing the  Answer  and Counterclaims  was          similarly  captioned  "In  Admiralty"  with  no  other  basis  of          jurisdiction  stated and  no  jury demand  made.   This  pleading          contained no  mention of Fed. R.  Civ. P. 9(h).   However, in its          answer  to the counterclaims, Concordia made a jury demand, which          it  later withdrew.  Before  trial, Panek moved  to bifurcate his          common law  counterclaims from the complaint to  allow the former          to be  tried  by jury.    He mistakenly  based  his motion  on  a          previous request for a jury trial, which was never made, at least          in writing.  The district court denied this motion.                    After  the close  of  evidence at  trial, the  district          court judge ruled that there was insufficient evidence to warrant          a finding on  the negligence  count and submitted  the breach  of          contract  and misrepresentation counts to the advisory jury.  The                                         -3-          jury returned a verdict finding that Concordia was not liable for          misrepresentation  but that it was liable to Panek for the breach          of contract count in the amount of $16,000 -- the total amount of          damage done to the PROWLER.  The district court declined to adopt          the   advisory  jury's   verdict  on   the  breach   of  contract          counterclaim, entering its own  bench judgment on all the  claims          as  follows: Concordia  was not  liable for  misrepresentation or          violating Chapter 93A;  Panek was liable for the  admiralty claim          for $4,560.35; and Concordia was liable for negligence and breach          of contract  for $3,938.50 -- the  cost of the clean  up and half          the  hauling.   The  Court acknowledged  it  was "reversing"  its          earlier determination that there was insufficient evidence on the          negligence claim  with respect to Concordia's  failure to prevent          the  PROWLER from sinking.   After offsetting  the two judgments,          Panek was held liable for $621.85 plus statutory interest.                               II. STANDARDS OF REVIEW                               II. STANDARDS OF REVIEW                    The primary  dispute on appeal is  whether the district          court erred by failing to  submit Panek's common law claims  to a          non-advisory jury.  Panek argues that  he retained his right to a          jury  on  his common  law claims  under  the "saving  to suitors"          clause of 28 U.S.C.   1333(1).1   We review claimed errors of law                                        ____________________          1  The saving to suitors clause provides:                    The  district  courts  shall   have  original                    jurisdiction, exclusive of  the courts of the                    States, of: (1) Any  civil case of  admiralty                    or maritime jurisdiction,  saving to  suitors                    in all cases all other remedies to which they                    are otherwise entitled.                                         -4-          de novo.  Windsor Mount Joy Mut. Ins. Co. v.  Giragosian, 57 F.3d          _______   _______________________________     __________          50,  53 (1st Cir. 1995) (citing Williams  v. Poulos, 11 F.3d 271,                                          ________     ______          278 (1st Cir.  1993); Blanchard  v. Peerless Ins.  Co., 958  F.2d                                _________     __________________          483,  487 (1st Cir. 1992)).   Panek also  challenges the district          court's calculation  of damages.  "The  district court's findings          of  fact,  however,  will  not  be  set  aside  unless  they  are          demonstrated  to  be  clearly  erroneous."   Id.  at  53  (citing                                                       ___          Williams, 11 F.3d at 278; Fed. R. Civ. P. 52(a)).          ________                                   III. DISCUSSION                                   III. DISCUSSION                           A.  The Claimed Right to a Jury                           A.  The Claimed Right to a Jury                    The  first issue  the  Court considers  is whether  the          counterclaimant waived any right  to a jury he may  have retained          by designating his  counterclaim as "In  Admiralty" with no  jury          demand.                    If this  suit had  involved only  non-admiralty claims,          Panek would  have had a right to  a jury trial on  his common law          claims.   Fed. R. Civ.  P. 38(a)  provides that  "[t]he right  of          trial  by  jury  as declared  by  the  Seventh  Amendment to  the          Constitution or as given by a  statute of the United States shall          be preserved to the  parties inviolate."  Any party  can preserve                                                    ___          its right to a jury by  making a timely demand for a  jury trial,          Fed. R. Civ. P. 38(b), and once the demand is  made, both parties                                                               ____          must consent before  it can be withdrawn, Fed.  R. Civ. P. 38(d),          39(a).  See  Dell'Orfano v.  Romano, 962 F.2d  199, 202 (2d  Cir.                  ___  ___________     ______                                        ____________________          28 U.S.C.   1333(1).                                         -5-          1992) ("A plaintiff  is entitled  to rely on  a defendant's  jury          demand to preserve his own right to a jury trial....").                     When  claims  which could  be  characterized  as either          admiralty  or common law claims  are raised in  a case, a party's          right to a jury trial becomes more complex.   Cf. Fed. R. Civ. P.                                                        ___          38(e) (providing  that "[t]hese rules  shall not be  construed to          create a right to trial by jury of the issues in an  admiralty or          maritime claim  within the  meaning of Rule  9(h)").   Generally,          there  is no  constitutional right  to jury  trial for  admiralty          claims.  See  Fitzgerald v. United States Lines Co., 374 U.S. 16,                   ___  __________    _______________________          19 (1963).  Congress has, however, created a statutory right to a          jury trial for certain admiralty claims.  See, e.g., 28 U.S.C.                                                       ___  ____          1873  (1994) (Great Lakes Act); 46 U.S.C.App.   688 (1988) (Jones          Act).   In addition, the  Supreme Court has  held that plaintiffs          who  assert both  a Jones  Act claim,  which creates  a statutory          right  to a jury trial on the law  side of the court, and closely          related admiralty claims for unseaworthiness  and maintenance and          cure are  entitled to  a  jury trial  on  both kinds  of  claims.                                                    ____          Fitzgerald, 374 U.S. at 21 (holding  that "only one trier of fact          __________          should be  used for the trial of  what is essentially one lawsuit          to  settle  one  claim  split conceptually  into  separate  parts          because  of  historical  developments"); see  also  Charles  Alan                                                   _________          Wright & Arthur  R. Miller,  9 Federal Practice  and Procedure                                            _______________________________          2315 (1995).                     When a claim  sounds both  in admiralty  and in  common          law,  a plaintiff can preserve  his right to  a jury by following                                         -6-          certain  procedures.    Pursuant  to  the  so-called  "saving  to          suitors" clause, 28 U.S.C.   1333(1), the federal district courts          have  "original  jurisdiction, exclusive  of  the  courts of  the          states," over admiralty  and maritime cases, saving to suitors in          all  cases  all  other  remedies  to  which  they  are  otherwise          entitled.   Lewis v. United  States, 812 F. Supp.  620, 626 (E.D.                      _____    ______________          Va.  1993).    Interpreting the  "saving  to  suitors" clause  to          reserve to  plaintiffs the right to  a common law remedy  "in all          cases where the common law is competent to give it,"  the Supreme          Court held that  "the common law is as competent as the admiralty          to  give a  remedy in  all cases  where the  suit is  in personam          against the owner of  the property."   Leon v. Galceron, 78  U.S.                                                 ____    ________          (11 Wall.) 185, 191  (1870).  This statute permits  plaintiffs to          retain a right  to a  jury for "saving-clause  claims"2 --  those          admiralty claims  that could have  also been tried  to a jury  at          common law  -- by either bringing  suit in state court  or in the          general jurisdiction of federal court.  See generally Odeco Oil &                                                  ___ _________ ___________          Gas Co., Drilling  Division v.  Bonnette, 74 F.3d  671, 674  (5th          ___________________________     ________          Cir. 1996) ("The  saving to suitors  clause evinces a  preference          for jury  trials and  common  law remedies  in the  forum of  the          claimant's choice.").   Consequently, a plaintiff's saving-clause          decision determines whether the judge or a jury will act as fact-          finder for saving-clause claims.                                          ____________________          2   See Barbara  Bennett Woodhouse,  Comment, Powell  v. Offshore              ___          Navigation,  Inc.:   Jurisdiction Over  Admiralty Claims  and the                               ____________________________________________          Right  to  Trial by  Jury,  82 Colum.  L.  Rev.  784, 787  (1982)          _________________________          (describing  common  law claims  also  sounding  in admiralty  as          "saving-clause claims").                                         -7-                    Where claims are cognizable either in admiralty or in a          nonmaritime ground of federal  jurisdiction, Rule 9(h) sets forth          the procedure  by  which  a  plaintiff indicates  his  choice  to          proceed in admiralty  for a saving-clause claim in federal court.          Fed.  R.  Civ.  P.  9  advisory  committee  note;  see  generally                                                             ______________          Woodhouse,  supra, at  79 (noting  that after the  unification of                      _____          admiralty and civil procedure  rules in 1966, the  "saving clause          option to choose whether to proceed in admiralty or diversity has          been  retained in Rule 9(h), which permits the suitor to identify          his  claim as  an  admiralty claim  in  order to  have  admiralty          procedures applied").  Rule 9(h) provides in pertinent part:                    A pleading or count setting forth a claim for                    relief  within  the  admiralty  and  maritime                    jurisdiction   that   is   also  within   the                    jurisdiction  of the  district court  on some                    other   ground   may   contain  a   statement                    identifying  the claim  as  an  admiralty  or                    maritime  claim  for  the purposes  of  Rules                    14(c), 38(e), and the Supplemental  Rules for                    Certain Admiralty and Maritime Claims.          Fed. R. Civ. P. 9(h).                      "The impact of the 9(h) election is that all claims are          tried  by the court, rather than the  jury."  Insurance Co. of N.                                                        ___________________          Am. v. Virgilio,  574 F. Supp.  48, 50 (S.D.  Cal. 1983)  (citing          ____   ________          Charles  Alan Wright & Arthur  R. Miller, 9  Federal Practice and                                                       ____________________          Procedure   2315  at 76 (1971); Arkwright-Boston  Mfrs. Mut. Ins.          _________                       _________________________________          Co. v. Bauer   Dredging, 74 F.R.D. 461, 461 (S.D. Tex. 1977)).  A          ___    ________________          waiver of the right to a jury is implicit in this election.   See                                                                        ___          Koch Fuels, Inc.  v. Cargo of  13,000 Barrels of  No. 2 Oil,  704          __________________   ______________________________________          F.2d 1038,  1041 (8th  Cir. 1983) ("Generally,  such an  election                                         -8-          precludes a  jury trial."); Romero v. Bethlehem  Steel Corp., 515                                      ______    ______________________          F.2d 1249,  1252-53 (5th Cir. 1975)  (denying plaintiff's request          for  a jury trial because  complaint alleged that  the "basis for          jurisdiction is the admiralty and maritime jurisdiction"); McCann                                                                     ______          v. Falgout  Boat Co., 44  F.R.D. 34,  42 (S.D. Tex.  1968) ("Rule             _________________          38(e)  ...  preserves  for   admiralty  and  maritime  cases  the          plaintiff'sright toforecloseademandbydefendantforjurytrial....").                    When  the  case  itself  is  hybrid  --  that  is,  the          complaint  is  designated  as   in  admiralty  and  a  compulsory          counterclaim  contains saving-clause  claims  -- as  the case  is          here, matters become even more  complicated.  See generally Billy                                                        _____________          Coe  Dyer, Note,  The Jury  on  the Quarterdeck:   The  Effect of                            _______________________________________________          Pleading Admiralty Jurisdiction  When a Proceeding  Turns Hybrid,          ________________________________________________________________          63 Tex. L. Rev. 533, 537 (1984) (analyzing  the problem of hybrid          actions).   In  hybrid  cases, the  question  arises whether  the          plaintiff's 9(h)  designation should  control the  procedures for          the  entire  case   or  whether  the  court  should   attempt  to          accommodate the counterclaimant's Seventh Amendment right.                    There  is a  split of  authority on  this issue.   Some          courts  have  concluded that  a  plaintiff's  Rule 9(h)  election          characterizes  the  whole  action   regardless  of  any   Seventh          Amendment right the counterclaimant may have had to a jury trial.          See, e.g.,  Virgilio, 574 F. Supp. at 51 (denying jury trial on a          ___  ____   ________          compulsory counterclaim  filed by  an insured  in  response to  a          declaratory judgment action by an insurance  company); Arkwright-                                                                 __________          Boston  Mfrs. Mut. Ins. Co., 74 F.R.D. at 461 (same); Camrex Ltd.          ___________________________                           ___________                                         -9-          v.  Camrex Reliance Paint Co., Inc., 90 F.R.D. 313, 317 (E.D.N.Y.              _______________________________          1981) ("The  right to a jury  trial in actions at  common law ...          provides no basis for claiming  a jury trial with respect to  the          issues in  an  admiralty  or maritime  claim  so  designated  (as          plaintiff has done) under Rule 9(h)....").                    Other courts  have allowed a separate jury trial on the          common law claims where  "both parties using different  triers of          fact,   could  prevail   on  their   respective  claims   without          prejudicing the other party or arriving at inconsistent results."          Koch  Fuels, Inc.,  704 F.2d  at 1042   (citing  Fed. R.  Civ. P.          _________________          42(b)); accord  Alaska Barite Co.  v. Freighters Inc.,  54 F.R.D.                  ______  _________________     _______________          192,  194 (N.D. Cal. 1972)  (admiralty claim tried  to bench with          separate trial for  permissive counterclaim).  But see Royal Ins.                                                         _______ __________          Co. of  Am. v. Hansen, 125  F.R.D. 5, 9 (D.  Mass. 1988) (denying          ___________    ______          counterclaimant's request  for a  jury trial because  of relation          between  counterclaims and  admiralty  claim  and possibility  of          inconsistent results).  For example, in Koch Fuels, Inc. v. Cargo                                                  ________________    _____          of 13,000 Barrels of No.  2 Oil, the Eighth Circuit  affirmed the          _______________________________          district  court's grant of a  separate jury trial  for the common          law counterclaim and a bench  trial for the plaintiff's admiralty          claim.  704  F.2d at 1041-42.   The court noted  that "[a]lthough          there is no  constitutional right  to a jury  trial in  admiralty          cases,"  the  "trial court  must,  whenever  possible, strive  to          preserve  the right  to a  trial by  jury."   Id.  (citing Beacon                                                        ___          ______          Theaters,  Inc.  v. Westover,  359 U.S.  500,  510 (1959)).   The          _______________     ________          Eighth Circuit affirmed  the district court's grant of  two fact-                                         -10-          finders because  the parties'  claims were easily  separated, one          involving wrongful  conversion and the other  breach of contract.          Id. at 1042.          ___                    The  Court  declines  to  resolve  the difficult  issue          raised by  the hybrid nature of the suit because this case can be          resolved on a narrower  ground.  Assuming without deciding  under          the  Koch Fuels  rationale  that Concordia's  designation of  the               __________          action  as arising in  admiralty did not  necessarily control the          entire  action, we  nonetheless  conclude that  Panek waived  his          right  to  a  jury  by  making a  9(h)  election  to  proceed "In          Admiralty"  without   making  a   demand  for   a  jury   in  the          counterclaim.                    To begin,  Rule 9(h)  applied  to Panek's  counterclaim          because  his claims for  breach of  contract and  negligence were          saving-clause claims that could  have been brought either in  the          district  court's  supplemental  jurisdiction  or  in  admiralty.          Panek's  contract  with Concordia  was  sufficiently  maritime in          nature   to   fall   within   the   district  court's   admiralty          jurisdiction.  See Kossick v. United Fruit Co., 365 U.S. 731, 735                         ___ _______    ________________          (1961)  (marine  insurance  contracts);  Carroll   v.  Protection                                                   _______       __________          Maritime Ins. Co.,  Ltd., 512 F.2d 4, 6 (1st Cir. 1975) (contract          ________________________          between seamen and  vessel owner); T.N.T.  Marine Serv., Inc.  v.                                             __________________________          Weaver Shipyards &  Dry Docks,  Inc., 702 F.2d  585, 587-88  (5th          ____________________________________          Cir.) (contract  for repairs at shipyard), cert. denied, 464 U.S.                                                     ____________          847  (1983).    Panek's  negligence claim  that  Concordia's  lax          security  caused  the fire  or that  its  failure to  prevent the                                         -11-          PROWLER from sinking  is also maritime in nature.   See Butler v.                                                              ___ ______          American  Trawler  Co., Inc.,  887 F.2d  20,  21 (1st  Cir. 1989)          ____________________________          ("[T]here  is admiralty  jurisdiction  if the  tort  at issue  1)          occurred  on navigable waters and  2) bore a significant relation          to  traditional maritime  activities."); Executive  Jet Aviation,                                                   ________________________          Inc. v. City of Cleveland, 409 U.S. 249, 268 (1972) (holding that          ____    _________________          for the purposes of  admiralty jurisdiction, a tort  occurs where          the  negligence  "takes  effect,"  not where  the  negligent  act          occurred).  Consequently, the district court could have exercised          jurisdiction    over   the   counterclaims   either   under   its          "supplemental  jurisdiction" pursuant  to  28 U.S.C.    1367,  or          admiralty, 28 U.S.C.   1333, at least with respect to the  breach          of contract and negligence claims.                    Having concluded  that Rule  9(h) could be  invoked, we          next  consider whether  Panek  in fact  made  the requisite  9(h)          "identifying statement" in his  counterclaim, thereby waiving his          right to a jury trial.  Insurance Co.  of N. Am. v. Virgilio, 574                                  ________________________    ________          F. Supp. 48, 51 (S.D. Cal. 1983) ("By invoking 9(h) the plaintiff          may  preclude a  right  to a  jury  trial which  might  otherwise          exist.").  We conclude  that he did, although the  election could          have  been more artfully made.3  While the preferred technique is          to  invoke expressly Rule 9(h),  Charles Alan Wright  & Arthur R.          Miller,  5 Federal Practice and  Procedure   1313  at 719 (1990),                     _______________________________                                        ____________________          3   Cf. Fed. R.  Civ. P.  Form 2(d)  ("If the  pleader wishes  to              ___          invoke the distinctively maritime  procedures referred to in Rule          9(h), add the following or its substantial equivalent: This is an          admiralty or maritime claim within the meaning of Rule 9(h).").                                          -12-          the words  "In Admiralty"  in  the caption  with no  accompanying          demand for a  jury trial,  were sufficient to  constitute a  9(h)          election  for admiralty  procedures.   See,  e.g., Teal  v. Eagle                                                 ___   ____  ____     _____          Fleet,  Inc., 933 F.2d 341,  345 (5th Cir.  1991) (holding that a          ____________          party need  not make a  specific reference  to Rule 9(h)  to fall          under admiralty jurisdiction).                    One important  factor in determining whether a claimant          has elected to proceed in admiralty is whether he demanded a jury          trial.  Lewis  v. United States, 812 F. Supp.  620, 627 (E.D. Va.                  _____     _____________          1993) (holding that a demand for a trial by jury "is inconsistent          with an intent to  proceed in admiralty"); cf. Royal Ins.  Co. of                                                     ___ __________________          Am. v. Hansen, 125 F.R.D. 5, 8 (D. Mass. 1988) ("Where a claim is          ___    ______          made  in accordance with Rule 9(h), the existence of diversity as          an alternative  basis of jurisdiction will  not entitle plaintiff          to a jury trial.");  Banks v. Hanover Steamship Corp.,  43 F.R.D.                               _____    _______________________          374,  376-77 (D. Md. 1967) (holding that a complaint that asserts          both admiralty jurisdiction and  diversity jurisdiction is not an          adequate 9(h) designation to trigger admiralty procedures).                     Panek  argues  that the  words  "In  Admiralty" in  the          caption  of the  counterclaim  were merely  a  label and  not  an          "identifying statement."  However,  courts have held that similar          titles  in the captions of  complaints were sufficient to trigger          the identification mechanism in Fed. R. Civ. P. 9(h).  See, e.g.,                                                                 ___  ____          Teal, 933 F.2d at  345.  Moreover, Panek's argument that his jury          ____          trial right  was preserved  by Concordia's subsequent  jury trial          demand  in its  answer to  the  counterclaim is  unavailing here.                                         -13-          While in a non-admiralty case any party may assert a demand for a                                        ___          jury trial and both parties must consent to the withdrawal of the                         ____          demand,  in an  admiralty  case, a  9(h)  election for  admiralty          cannot be undone by  the opposing party's jury demand.   See Fed.                                                                   ___          R. Civ.  P. 9(h); Craig v.  Atlantic Richfield Co., 19  F.3d 472,                            _____     ______________________          476-77 (9th Cir.), cert.  denied, 115 S. Ct. 203  (1994) (holding                             _____________          that plaintiff was  not entitled  to rely on  a defendant's  jury          demand where  the defendant  had neither a  constitutional nor  a          statutory right to make  such a demand); Cateora v.  British Atl.                                                   _______     ____________          Assurance, Ltd., 282 F. Supp. 167, 169 (S.D. Tex. 1968) (striking          _______________          defendant's jury demand because  plaintiff had made 9(h) election          in favor of admiralty).  In short, Concordia's jury demand was  a          nullity and Panek could not rely on it.                    We hold that Panek made a 9(h)  election by designating          his claim as "in admiralty" with no jury demand, assuming without          deciding that  he retained  his right  to a  jury even  after the          plaintiff had made its Rule 9(h) designation.4                                     B.  Damages                                     B.  Damages                    Panek claims that  the trial judge  erred in not  using          the  advisory jury's  determination  of damages  on the  contract          count  of  the  counterclaims.    Specifically,  Panek  seeks  to          reinstate  the jury award of  $16,000 to reflect  the evidence in          the record that the tuna tower (worth $10,000) and the navigation                                        ____________________          4  Because we decide  the case on this ground we need not address          Concordia's  further argument that  the district court's judgment          should be affirmed because  there was insufficient evidence under          either a breach  of contract  or negligence theory  to find  that          Concordia's breach of duty caused the fire.                                         -14-          and  fishing  equipment  (worth  $6,000) were  destroyed  in  the          explosion.   However,  the  district court  found that  Concordia          breached its duty to  Panek only after the fire  was extinguished          and after this property was burned.  The district court carefully          assessed the damages proximately  caused by Concordia's breach of          duty by failing to take reasonable  care of the hull while it was          still afloat and by permitting the PROWLER to sink.  The district          court's factual  determinations of  damage are reviewed  only for          clear error, see Windsor  Mount Joy Mut. Ins. Co.  v. Giragosian,                       ___ ________________________________     __________          57 F.3d 50,  53 (1st Cir. 1995), and Panek does not come close to          meeting this standard.   We hold that the district court  did not          clearly err in its damages findings.                    AFFIRMED.                    AFFIRMED.                    ________                                         -15-
