
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1876                                 RODNEY A. SULLIVAN,                                Plaintiff - Appellee,                                          v.                           YOUNG BROTHERS & COMPANY, INC.,                                Defendant - Appellee.                                 ____________________                                VERNAY PRODUCTS, INC.,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                 Cyr, Circuit Judge,                                      _____________                         and Skinner,* Senior District Judge.                                       _____________________                                _____________________               Richard  L. Suter,  with whom  Preti,  Flaherty, Beliveau  &               _________________              _____________________________          Pachios was on brief for appellant.          _______               John R. Bass II, with  whom Thompson, McNaboe, Ashley & Bull               _______________             ________________________________          was on  brief for  appellee Rodney A.  Sullivan; Barry  K. Mills,                                                           _______________          with whom Hale & Hamlin was on brief for  appellee Young Brothers                    _____________          & Company, Inc.                                 ____________________                                    August 1, 1996                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    TORRUELLA, Chief Judge.  This products liability action                    TORRUELLA, Chief Judge.                               ___________          arose out  of the sinking of  the lobster vessel, the  SEA FEVER.          The vessel's owner and operator, Rodney Sullivan ("Sullivan"), by          his insurer, brought this suit  to recover for damages  sustained          due to  the SEA FEVER's  sinking.  Sullivan brought  suit against          Vernay Products, Inc.  ("Vernay") and Young Brothers  and Company          Inc. ("Young  Brothers")  under  theories  of  strict  liability,          negligence, and breach of implied  and express warranties.  Young          Brothers  crossclaimed  against  Vernay  for indemnification  and          contribution,  and Vernay  similarly  crossclaimed against  Young          Brothers  for  indemnification and  contribution.    The district          court found  only Vernay to be  liable for the  damages caused by          the SEA  FEVER's sinking and  awarded damages to Sullivan  in the          amount of $54,318.68.  On  the crossclaim, it entered judgment in          favor of  Young Brothers.   Before us  is Vernay's appeal  of the          district court's judgment, damage award, and denial of its motion          for summary judgment and motions for judgment as a matter of law.          Also before us is Sullivan's cross-appeal of the district court's          finding  that Young  Brothers was  not liable.   For  the reasons          stated  below, we  affirm, in  part,  and reverse,  in part,  the          judgment below.                                    I.  BACKGROUND                                    I.  BACKGROUND                                        __________                    We  take the  facts,  particularly  the more  technical          aspects,  almost  verbatim  from the  district  court's  detailed          opinion.                                          -2-                    The  SEA FEVER is a forty-foot, fiberglass hull lobster          boat built  by Young Brothers  in 1989, which  Sullivan purchased          new from Young Brothers in  February 1990 for $122,000.  Sullivan          added  various  items  of  gear  and furnishings  at  a  cost  of          approximately $10,000.  Young Brothers built the SEA FEVER with a          wet  exhaust  system, which  was composed,  in part,  of six-inch          diameter   Vernatube  fiberglass   marine   wet  exhaust   tubing          manufactured by  Vernay Products  (the "Vernatube"),  which is  a          manufacturer  of  various  fiberglass components  of  marine  wet          exhaust systems. H  & H Propeller Shop ("H & H Propeller" or "H &          H"),1 Vernay's distributor in Maine, was the parts  supplier from          which Young Brothers purchased the Vernatube installed aboard the          SEA FEVER.                     The SEA FEVER's wet exhaust system was constructed with          a fifteen-foot length of Vernatube.  Because Vernatube is sold in          ten-foot lengths, Young Brothers fiberglassed together a ten-foot          and a five-foot length of  Vernatube, making, in effect, a single          length of  tube.   This span  of Vernatube  was connected to  the          engine  at the  exhaust manifold  by a  flexible rubber  hose and          rigidly installed in  the hull of the vessel  by fiberglass where          the   Vernatube  passed  through  the  fish  hold  bulkhead,  the          lazarette bulkhead, and the transom.  Aft of the manifold, it was          also fiberglassed  to each of  the two bulkheads and  the transom                                        ____________________          1  Sullivan's  complaint included claims against H  & H Propeller          under  theories of  strict liability  and  breach of  express and          implied warranties.  Before trial began, those claims, along with          crossclaims and third-party  claims brought by and against  H & H          Propeller, were dismissed by stipulation of the parties.                                         -3-          and  the Vernatube  exhaust was  supported by  a 3/4-inch  marine          plywood bracket  lined with urethane  rubber at about  the midway          point of the  fish hold.  The  district court found that  the SEA          FEVER's  Vernatube wet exhaust system was installed in conformity          with generally accepted methods of installation among builders of          similar vessels in Maine.  The SEA FEVER was also equipped with a          Rule  1500 gallon  automatic bilge  pump.   This pump,  which was          capable  of discharging  up to  1500 gallons  of water  per hour,          could be operated manually or automatically.                      Sullivan operated the SEA FEVER as a commercial lobster          vessel  during  the  1990  fishing   season  without  significant          problems.  In early 1991,  Sullivan discovered a crack (the "1991          crack") in  the portion of  the Vernatube exhaust located  in the          lazarette, which permitted water to enter the vessel to the point          of near sinking.  Sullivan discovered the crack because the bilge          pump was running more than usual.  At the time, the boat was tied          to the dock and fully loaded with 90-100 lobster traps, such that          the  wet  exhaust  tubing  was   completely  submerged.  Sullivan          notified  Young  Brothers  of  this  crack,  and  Young  Brothers          repaired it by fiberglassing over the break.  Young Brothers also          notified  H  & H  Propeller  of  the  crack.   Neither  of  these          companies  notified  Vernay  of  this  crack,  and there  was  no          evidence that  Sullivan did.  The cause of  this crack  was never          investigated or discovered.                      After  this  repair,  the  SEA FEVER  operated  without          further  problems and  Sullivan  fished  the  1991  season  until                                         -4-          January 1992.   Thereafter,  the SEA FEVER  remained at  her slip          until March  1992, when it  was hauled  for routine  maintenance.          While  the  SEA FEVER  was  out of  the  water, Sullivan  did not          specifically inspect the exhaust system.   The record shows  that          the last time  he inspected it was  at the end  of the summer  of          1991.  On March 17,  1992, Edward S. Blackmore, a marine surveyor          appointed by Sullivan's  marine hull insurance  company, surveyed          the SEA  FEVER.   Blackmore  found  the  vessel to  be  in  "A-1"          condition with  a fair  market  value of  $130,000.   Blackmore's          inspection included  observation of the Vernatube  exhaust, which          did not have any water in it at the time of the inspection as the          SEA FEVER  was not loaded.   Nothing unusual was  noted about the          condition of the  Vernatube and Blackmore observed  no fractures,          no discoloration, and no staining or other evidence of failure in          the Vernatube.                      After  the March  maintenance and  inspection, the  SEA          FEVER was not operated  and remained at  her slip until April  4,          1992.    On   that  day,  Sullivan  and  his   sternman  made  an          eight-to-ten-mile   trip  aboard  the   SEA  FEVER,   picking  up          approximately eighty lobster  traps.  After returning,  they tied          the SEA FEVER to the  dock at about 1:00  p.m. and went home  for          the day.  Due to the weight of the lobster traps, the  end of the          exhaust discharge port  was several inches under water  and, as a          result, the Vernatube  had water in it.   The SEA FEVER  was left          with the automatic bilge pump switch in the "off" position rather          than the "automatic" one.   Later that day, at approximately 7:30                                         -5-          p.m., Sullivan  was notified that the  SEA FEVER had  sunk at the          dock.  Sullivan retained Wayne Godfrey,  a salvage diver from D &          G  Diving Services, to raise  the vessel, which was approximately          90% to  95% submerged.   The  SEA FEVER  was  surveyed by  Werner          Splettstoesser   of  Marine  Safety   Consultants  on  behalf  of          Sullivan's insurer, who determined that the SEA FEVER sank due to                            ,           a crack  in the  wet exhaust  tubing which  was visible from  the          access hatch to the fish hold compartment.  This suit followed.                    On  July 26,  1995, after a  four-day bench  trial, the          district court issued its written decision and order, in which it          found  that the  cause  of the  SEA  FEVER's sinking  was a  full          circumference crack in the Vernatube located a few inches forward          of the  bulkhead between the  lazarette and fish hold  (the "1992          crack").  The district court further found that this crack  was a          fatigue  failure caused by  tension stresses over  time exceeding          the  axial length  of the  tube.   As  there was  no  other known          instance prior  to the lawsuit  in which a Vernatube  had cracked          under  similar circumstances,  much of  the  trial testimony  was          directed  at the  question of  whether  the 1992  crack had  been          caused  by  a  defective  section  of  Vernatube  or by  improper          installation of the exhaust system by Young Brothers.                      After  evaluation of  expert testimony  offered  by all          three  parties, review  of the  largely  technical evidence,  and          inspection  and  analysis  of  the  SEA  FEVER's  Vernatube,  the          district  court found that the ten-foot section of the Vernatube,          which developed at least two cracks during a two-year period, was                                         -6-          defective.   The  district  court  specifically  found  that  the          evidence regarding the Vernatube's  porosity, wall thickness, and          longitudinal  strength  "clearly  proves   that  the  section  of          Vernatube was defective" and that  its defect contributed to  the          Vernatube's  failure in  the  SEA  FEVER.    In  particular,  the          district   court  found  that  with  respect  to  these  physical          measures, the  Vernatube did  not live up  to the  specifications          described  in the Vernay Products Information Sheet (the "VPIS").          In making  its finding, the district court  noted that inspection          of the Vernatube revealed several cracks, delamination, and areas          of prospective  failure, all located  in the ten-foot  section as          well as one area of  debonding (i.e., where strands of  fiber had          come loose).    The district  court  explicitly ruled  out  other          claimed  reasons for the  Vernatube's failure, noting  that there          was no  evidence of owner  misuse and no indication  of Vernatube          failures in boats  similarly constructed.  Noting that  the trial          testimony  "clearly established that hundreds of boats of similar          design have  been constructed  with  this type  of rigid  exhaust          system without one known failure,"  the district court found that          the rigid  installation of SEA  FEVER's exhaust system was  not a          cause  of  the  Vernatube's failure  and  that,  therefore, Young          Brothers was not strictly liable  for its installation of the wet          exhaust system.  In making this finding, the district court noted          that "the existence of multiple failures and imperfections within          the  single  ten-foot section  of Vernatube,  notwithstanding the          product's   known   track   record   of   problem-free    similar                                         -7-          installations  in  hundreds  of   other  vessels,  supports   the          conclusion that the SEA FEVER sank because this particular length          of tube, rather than its installation, was defective."                    In  addition, the district court held that (i) Vernay's          warning  against rigid installation,  while insufficient, did not          give rise to recovery --  but Vernay was nonetheless liable under          theories of negligence  and strict liability based on  defects in          tubing; (ii) Sullivan was partially responsible for damage due to          his failure to leave his  boat's bilge pump in automatic position          despite knowing  of another crack  in the Vernatube  exhaust that          needed repair; (iii) Vernay was also liable for breach of express          and  implied warranties; (iv) Sullivan's notice to Young Brothers          was  sufficient  to  allow  recovery for  breach  of  warranty by          Vernay; and  (v) Sullivan's recovery  would be reduced by  40% to          reflect his comparative fault.                    The  district  court  entered an  amended  judgment  on          July 28,  1995, based  on its  earlier decision  and order.   The          district court had subject matter jurisdiction based on diversity          of citizenship  and  satisfaction of  the jurisdictional  amount.          See 28  U.S.C.   1332(a).   We have  jurisdiction pursuant to  29          ___          U.S.C.   1291 (appeals from a district court's final judgment).                                     II.  DISCUSSION                                   II.  DISCUSSION                                        __________                    After  a bench  trial, we  review  the trier's  factual          determinations for clear error, see Smith v. F.W. Morse & Co., 76                                          ___ _____    ________________          F.3d 413, 420 (1st Cir. 1996); Cumpiano v. Banco Santander  P.R.,                                         ________    _____________________          902 F.2d  148, 152 (1st  Cir. 1990); Fed.  R. Civ. P.  52(a), but                                         -8-          afford  plenary review to  the trier's formulation  of applicable          legal  rules,  see  Smith,  76  F.3d at  420;  Johnson  v.  Watts                         ___  _____                      _______      _____          Regulator  Co.,  63  F.3d  1129,  1132  (1st  Cir.  1995).    The          ______________          jurisprudence of  clear  error prevents  us from  ruling anew  on          factual issues.   See, e.g.,  Jackson v. Harvard Univ.,  900 F.2d                            ___  ____   _______    _____________          464, 466 (1st Cir.), cert. denied, 498 U.S. 848 (1990); Keyes  v.                               ____________                       _____          Secretary of the Navy, 853 F.2d 1016, 1019 (1st Cir. 1988).          _____________________                    This case  comprises interrelated  issues of  liability          involving  three players.   The  basic outline  of the  flurry of          claims  is as  follows.   Vernay  contests  the district  court's          ruling that  it  was  liable  under theories  of  warranty,  both          express  and implied,  as well  as strict  liability  for product          defects  and negligence.   Furthermore,  Vernay  argues that  the          district  court  erred  in  rejecting  the  argument  that  Young          Brothers' negligence constitutes a defense to Vernay's liability.          Additionally,  Vernay argues  that the  district  court erred  in          failing  to  conclude  that Sullivan's  own  conduct  should have          operated to bar  Vernay's liability, rather  than occasion a  40%          reduction.  Finally, Vernay argues  that the district court erred          in finding  Young Brothers to  be without liability under  any of          Sullivan's theories.                    Sullivan  rejects  Vernay's  arguments that  we  should          reverse the district court's conclusions with respect to Vernay's          liability to him.  Moreover, Sullivan  contends that the district          court correctly did not bar his recovery due to his  own conduct.          Sullivan also  argues that  the district  court erred  in finding                                         -9-          that Young  Brothers was not  liable under theories of  breach of          warranty  and  strict  liability for  product  defects,  although          Sullivan  contends that  the district  court correctly  concluded          that  Young Brothers was  not liable  under a  negligence theory.          For  its part,  Young  Brothers argues  that  the district  court          correctly decided that it was not liable and that Vernay was.                    We  address   first  Vernay's  liability,   then  Young          Brothers'  liability.  Issues of Sullivan's conduct are discussed          as they apply to the other two parties' liability.  Following our          liability discussions, we turn to issues of damages.                                A. Vernay's Liability                                A. Vernay's Liability                    The  district court found  that Vernay breached certain          express and  implied warranties in  the sale of the  Vernatube to          Young Brothers, all in violation of Me. Rev. Stat. Ann.  tit. 11,             2-313   (express   warranty),  2-314   (implied   warranty  of          merchantability),  and 2-315 (implied  warranty of fitness  for a          particular  purpose), and  that  Vernay  was  also  liable  under          theories  of strict liability for product defects and negligence.          The  district court  arrived  at  its  conclusions  after  making          extensive findings  regarding the  Vernatube and  the VPIS  which          were  based  both  on  trial  testimony,  exhibits  entered  into          evidence and the parties' joint stipulations, dated  June 1, 1994          ("Joint  Stipulations").   On appeal,  Vernay  challenges, for  a          number of reasons,  the district court's conclusions  that Vernay          is liable  for breach  of express warranties,  breach of  implied          warranties, and strict liability for product defects.                                           -10-                              Breach of Express Warranty                              Breach of Express Warranty                              __________________________                    Pursuant to the Maine  Uniform Commercial Code, express          warranties by  the seller  are created  by "[a]ny affirmation  of          fact or promise made by the seller to the buyer which  relates to          the goods  and becomes part  of the basis  of the bargain."   Me.          Rev. Stat.  Ann. tit.  11,   2-313.   Furthermore,  "[i]t is  not          necessary to the creation of  an express warranty that the seller          use formal words such as 'warrant' or 'guarantee' or that he have          a  specific  intention to  make  a warranty,  but  an affirmation          merely of the value of the goods or a statement purporting  to be          merely the seller's opinion or commendation of the goods does not          create  a warranty."    Id.   In  general,  the question  whether                                  __          certain language creates an express warranty is  reserved for the          trier of fact.   See Cuthbertson  v. Clark Equip.  Co., 448  A.2d                           ___ ___________     _________________          315,  320  (Me.  1982).  Below,  Sullivan contended  that:    the          Vernatube had insufficient nominal  wall thickness; the Vernatube          was porous  on the  inner surface,  affecting the  tube's overall          integrity; and the longitudinal strength was insufficient for the          application and could have been  increased through changes in the          tube's  manufacture.    Based  on  an  extensive  review  of  the          technical  evidence presented, the district court agreed, finding          that  the  deficiency  in  the  nominal  wall thickness  and  the          substandard longitudinal strength were  not what Vernay expressly          warranted in  its VPIS, and that  the porous nature of  the inner          surface  of the  Vernatube contributed  to  the weakening  of the          fibers and  the fatigue  crack which caused  the vessel  to sink.                                         -11-          The district court ultimately concluded that the "breach of these          express  warranties was collectively the cause  of the failure of          this  section  of  Vernatube."   Vernay  challenges  the district          court's conclusion that  it breached an express  warranty arising          from the VPIS on several grounds.  We reject all of them.                    First,  Vernay points  out  that neither  Sullivan  nor          Young  Brothers pled any violation of an express warranty arising          from the VPIS.  Sullivan only pled a violation of the express and          implied  warranties   of  merchantability   and  fitness   for  a          particular purpose, and  Young Brothers only pled a  breach of an          implied warranty of merchantability.  Accordingly, Vernay argues,          the district  court erred  when it  held Vernay breached  certain          express warranties made in the VPIS.  We do not agree.                      Under Fed. R. Civ. P.  15(b),2 we find that the express          warranty  arising from  the VPIS  was  tried by  implied, if  not          express, consent  of the parties  and, thus, we "treat[]  [it] in          all respects as  if [it] had been raised  in the pleadings." Id.;                                                                       ___          see  Charles A. Wright, Arthur R. Miller  & Mary K. Kane, Federal          ___                                                       _______                                        ____________________          2  Fed. R. Civ. P. 15(b) provides, in pertinent part:                       When issues not  raised by the  pleadings                      are tried  by express or  implied consent                      of the  parties, they shall be treated in                      all  respects as if  they had been raised                      in the  pleadings. Such amendment  of the                      pleadings  as may  be necessary  to cause                      them to  conform to  the evidence  and to                      raise  these  issues  may  be  made  upon                      motion  of  any party  at any  time, even                      after judgment; but  failure so to  amend                      does  not affect the  result of the trial                      of these issues.                                          -12-          Practice and Procedure: Civil 2d    1493 (1990) ("Rule 15(b) does          ________________________________          not require that  a conforming amendment be made and  there is no          penalty for  failing to  do so.").   In his  pretrial memorandum,          Sullivan  argues  that Vernay  Products breached  certain express          warranties in connection with  the sale of the Vernatube,  citing          to Me.  Rev. Stat.  Ann. tit. 11,    2-313 and  referring to  the          statements made in the VPIS.  Although in its pretrial memorandum          Vernay  did point  out, albeit  somewhat in  passing and  without          reference  to any  legal rule, that  Sullivan had  not originally          pled breach of an express warranty arising from the VPIS, we find          that,  because  issues  relating  to  both  express  and  implied          warranties arising from  the VPIS were tried  interchangeably and          without  further objection,  the breach  of  an express  warranty          arising  from the  VPIS was  tried  by implied,  if not  express,          consent under  Fed. R.  Civ. P.  15(b).   The  record shows  that          Vernay did not  object to the presentation of  evidence regarding          express  warranties made  in  the VPIS,  and  that Vernay  itself          introduced considerable testimony regarding its interpretation of          the VPIS.                      Furthermore,   we    are   unpersuaded    by   Vernay's          counterargument  that, because  the VPIS  was  only admitted  and          discussed for purposes of the strict liability claim's failure to          warn issue, its failure to object to the admission of the VPIS or          to related testimony cannot be deemed an implied consent to amend          the pleadings.  Not only was the evidence and testimony regarding          the VPIS related directly to the breach of warranties claims that                                         -13-          Sullivan and Young Brothers had  pled, but Vernay failed to raise          any sort  of objection or  state for the  record that it  was not          consenting to Sullivan's claim of a breach of an express warranty          claim arising  from  the VPIS.    In addition,  Vernay's  counsel          explicitly admitted to  the breach of warranties  claims, without          reference to the  fact that an express warranty  arising from the          VPIS had not  been pled:   In support  of defendants' motion  for          judgment  as  a  matter  of law,  Vernay's  counsel  stated  that          "[w]ell, we have a  breach of contract account here,  but I would          say  there is  [an] absolute  defense to  Vernay under  [Me. Rev.          Stat. Ann. tit. 11,  ] 2-607(3)" given that Vernay  was not given          notice of the defect.  (6/21/94 Tr. p. 223).   In any event, even          assuming,   arguendo,  that  Vernay  had  not  consented  to  the                      ________          amendment of the pleadings, it does not affect the outcome of the          appeal as  we nonetheless  affirm the  district court's  findings          that Vernay breached the express and implied warranties which had          originally been pled.                    Second, Vernay argues that, even if a breach of express          warranty  is deemed  to have  been  pled, there  was no  evidence          proffered at trial to show that either Young Brothers or Sullivan          relied on  the representations made in  the VPIS.  In  support of          his argument, Vernay cites Phillips v. Ripley & Fletcher Co., 541                                     ________    _____________________          A.2d 946, 950 (Me. 1988),  and cases from other jurisdictions for          the  proposition that  reliance  is  an element  of  a breach  of          express warranty claim in Maine.   As Phillips notes, comments to                                                ________          Me.  Rev.  Stat.  Ann.  tit.   11,     2-313  suggest  that  "the                                         -14-          requirement that the affirmation become part of the 'basis of the          bargain'  is meant to continue the  uniform sales act requirement          that the purchaser must show reliance on the affirmation in order          to make out a cause of action for breach of warranty."  Phillips,                                                                  ________          541 A.2d at 950 (internal citations omitted).                      Although the district court did not explicitly  discuss          reliance as an element of the breach of express warranty claim in          its memorandum, testimony was given that Young Brothers relied on          the VPIS.   The  following  colloquy ensued  between counsel  for          Sullivan and Colby Young, part  owner and vice president of Young          Brothers:                    Q.  Is it  fair to  state that  you made  the                        decision  to  change   your  installation                        practice and use vernatubing for your wet                        exhaust    tube     based    upon     the                        representations set forth in the [VPIS]?                    A.  Yes, sir.                                        . . .                     Q.  So [sic] in other words, your decision to                        use  the  vernatube  was based  upon  the                        content of the  information set forth  in                        [the VPIS]?                     A.  That's correct.                                        . . .                    Q.  If Vernay  in its  brochure had told  you                        that a  rigid installation  was improper,                        you wouldn't have done it?                    A.  Certainly not.  It never would have  been                        done.           (6/21/94 Tr.  T. at 199,  203).  Following  up on this  and other          testimony by  Young, counsel for Vernay engaged  in this exchange          with Young:                     Q.  Mr.  Young, you  said that you  relied on                        this document to decide whether or not to                        install Vernay in your  first boat; isn't                        that right?                                         -15-                    A.  That and the  representation from the rep                        [from H & H Propeller], yes.                    Q.  Okay.   So you relied on things that [the                        representative]  from  H  &  H  Propeller                        Shop, Inc. told you?                    A.  In fact, he brought it to us and asked us                        to try it, yes.                    Q.  You say that [the VPIS] is the only thing                        that Vernay gave you?                    A.  Yes.          (6/21/94 Tr. T. at 207).                      Based on Young's testimony, including cross-examination          by  Vernay's counsel, we  conclude that the  district court could          have reasonably inferred  reliance.  Thus, although  the district          court  did not explicitly address reliance, we nonetheless affirm          the  breach of  an express  warranty  claim based  on the  record          evidence and  the failure  of Vernay's counsel  to object  to it,          finding that  the district  court's failure  amounts to  harmless          error  in this case, since  the failure to  make findings of fact          and conclusions  of law dealt  here with  an issue on  which most          relevant facts are undisputed and  the law can be applied without          the district court's assistance.  See Conservation  Law Found. v.                                            ___ ________________________          Busey,  79 F.3d  1250,  1271 (1st  Cir.  1996); Associated  Elec.          _____                                           _________________          Coop., Inc. v. Mid-America Transp.  Co., 931 F.2d 1266, 1272 (8th          ___________    ________________________          Cir. 1991).                                    Lack of Privity                                   Lack of Privity                                   _______________                    We  dismiss  as  meritless  Vernay's  next  claim  that          Sullivan may not  enforce the express warranty  because there was          no evidence proffered that Sullivan  "ever saw" the VPIS prior to          litigation,  let alone relied on  its representations.  In Maine,          "[l]ack  of privity between  plaintiff and defendant  shall be no                                         -16-          defense in any action brought against the manufacturer, seller or          supplier of  goods for breach  of warranty,  express or  implied,          although the  plaintiff  did  not purchase  the  goods  from  the          defendant, if the plaintiff was  a person whom the  manufacturer,          seller or supplier might reasonably have expected to use, consume          or be affected by the goods."  Me. Rev. Stat.  Ann. tit. 11,   2-          318 (1995); see  Stanley v. Schiavi Mobile Homes,  Inc., 462 A.2d                      ___  _______    ___________________________          1144,  1147 n.4 (Me.  1983) (noting  that lack  of privity  is no          defense in  breach of implied warranty actions).   Although there          is a lack of privity between Sullivan and Vernay in that Sullivan          did not purchase the Vernatube directly from Vernay, Sullivan was          certainly a person  whom Vernay might reasonably have expected to          use, or  be affected  by, the Vernatube.   Indeed,  Vernay itself          stipulated to  this very  fact.  See  Joint Stipulations,  No. 6.                                           ___          Even without the  stipulation, the record supports  this finding.          As Vernay  points out in  its brief, approximately 70-75%  of its          products are sold directly to boat builders and the rest are sold          to  wholesale  distributors  and  engine  dealerships.    H  &  H          Propeller Shop  was Vernay's distributor  in Maine and  the parts          supplier  from  which  Young  Brothers  purchased  the  Vernatube          installed aboard the SEA  FEVER.  As a purchaser of  a new vessel          from  a Maine boat  building company  which purchased  goods from          Vernay's  Maine distributor, Sullivan was certainly a person whom          Vernay might  reasonably expect  to use, or  be affected  by, its          product.                                  Notice Requirement                                  Notice Requirement                                  __________________                                         -17-                    Vernay  contends  that  the  district  court  erred  in          holding it liable under a breach of warranty theory, arguing that          it cannot be  held responsible for  the damages because  Sullivan          failed to  comply with the  notice requirements set forth  in Me.          Rev. Stat. Ann. tit. 11,   2-607(3).  That section requires that,          where the  tender has  been accepted, the  buyer must  notify the          seller of any  breach within  a reasonable time  after he or  she          discovered or should have discovered any breach or be barred from          any  remedy.   Id.,   2-607(3).   The "seller"  is defined  as "a                         ___          person who  sells or contracts  to sell  goods."  Me.  Rev. Stat.          Ann. tit. 11,   2-103(d).  The district court found that Sullivan          satisfied  the  notice  requirement,  because  he notified  Young          Brothers, his immediate seller, of the 1991 crack.                      On appeal  Vernay contends --  as it did below  -- that          Sullivan is  barred from any  remedy because he failed  to notify          Vernay of the  undisputed 1991 crack which caused  water to enter          the SEA FEVER's  holds.  Vernay argues  as follows:  If  the 1992          crack  is considered  to be  a breach  of any  warranty  then the          similar 1991 crack must also  be considered a breach and, because          it  is  undisputed  that  neither  Sullivan  nor  Young  Brothers          provided Vernay with  any notice of the 1991  crack,3 Sullivan is          barred from  any remedy.   For support,  Vernay argues  that "the          majority of courts"  have held that for claims  of economic loss,          remote manufacturers must  be notified,  and that  notice to  the                                        ____________________          3   As  the district  court  noted, although  Young Brothers  did          notify H  & H Propeller of the  1991 crack, H & H  did not notify          Vernay.                                         -18-          seller  of the  product  alone is  insufficient  for purposes  of          Section 2-607(3).  The consequence of not receiving notice of the          first crack, Vernay explains, is that it never had an opportunity          to offer a cure.  See Me. Rev. Stat. Ann. tit. 11,   2-605.  The                            ___          district  court rejected Vernay's  argument, concluding  that the          majority of courts in fact have held that buyers need only notify          their  immediate  sellers.    Sullivan,  893  F.  Supp.  at  1159                                        ________          (collecting cases).  However, Vernay  disputes the cases that the          district court cited,  and argues that a majority  of courts hold          the opposite.                    However, even  accepting, arguendo,  Vernay's argument,                                              ________          the record supports  the conclusion that Vernay  had constructive          notice and  knowledge of the 1991  crack.  As the  district court          noted when denying defendants' motion for judgment as a matter of          law,  viewing the  evidence in  the light  most favorable  to the          plaintiff -- as the verdict here requires us to -- a  fact finder          could  conclude   that  Vernay   was  effectively   notified  via          communication  to H  & H  Propeller,  Vernay's representative  in          Maine.  The district court  concluded, and we agree, that a  fact          finder could  reasonably infer  that the  representative had  the          apparent  authority to accept reports  for Vernay and that notice          given to  that agent  was effectively  constructive knowledge  to          Vernay, who  retained that representative and that company as its          exclusive representative in Maine.                    Finally, Vernay raises an additional  argument based on          the district  court's finding  that Sullivan was  aware of  a new                                         -19-          crack in 1992 which he "had been meaning to repair."   Vernay now          contends that because there is no evidence that Sullivan provided          anyone  with notice  of  the  1992 crack  prior  to the  sinking,          Sullivan is barred from any remedy.  Vernay further contends that          on the facts  of this case  (namely, that  the 1991 crack  almost          resulted in the  sinking of the SEA  FEVER and the new  crack had          the  potential to  do the  same), reasonable  notice of  this new          crack could be nothing less than immediate notice.                    Vernay has  failed to  adduce legal  authority for  the          proposition that, under Maine's version  of Article 2 of the UCC,          Sullivan's failure to give immediate  notice voids his claim.  In          contrast, an applicable comment to the UCC states that:                      "[a]  reasonable  time"  for notification                      from a retail consumer is to be judged by                      different standards  [than notice  from a                      merchant  buyer], . .  . for the  rule of                      requiring  notification  is  designed  to                      defeat  commercial  bad   faith,  not  to                      deprive a  good  faith  consumer  of  his                      remedy.          Uniform Commercial Code,   2-607.4 cmt.   In this case, where the          1992 crack had  given Sullivan no indication of  trouble, we must          reject Vernay's "immediate  notice" gloss on what  constitutes "a          reasonable  time."   To  adopt  Vernay's  reading  would  require          consumers to give  notice of problems that amount  to little more          than  a nuisance,  and would  tend to  defeat worthy  claims with          little off-setting benefit to anyone.   Even if consumers were to          comply  with this  burden, manufacturers  would  be deluged  with          notices about  harmless defects.   In light of the  UCC comment's                                         -20-          apt  caution   regarding  the   notice  requirement  and   retail          consumers, we think that it would  be unwise to shift the balance          in this flow of information in the manner that Vernay urges.                    As  a result, we uphold the district court's conclusion          that  Vernay was  liable  for breach  of  its express  warranties          regarding the Vernatube's nominal wall thickness, porosity of its          inner surface, and longitudinal strength.  Furthermore, given the          expert  testimony heard  by the  district court,  its finding  of          causation cannot be  clear error.  See Clement  v. United States,                                             ___ _______     _____________          980 F.2d 48, 53 (1st. Cir.  1992) (stating that, under Maine law,          causation-in-fact is a  factual inquiry);  Greenstreet v.  Brown,                                                     ___________     _____          623  A.2d 1270, 1271 (Me.  1993) (stating that "[p]roximate cause          is  a question  of fact"  and "[w]e  will not  disturb the  trial          court's finding of fact unless  there is no competent evidence in          the record to support it");  LaFerriere v. Paradis, 293 A.2d 526,                                       __________    _______          528-29  (Me.  1972).   Because  we  uphold  the district  court's          finding of  Vernay's liability based  on a breach of  its express          warranty, we need not consider Vernay's liability with respect to          theories of  implied warranty, or  with respect to  negligence or          strict  liability for  product  defects.4   See Dudley  v. Bungee                                                      ___ ______     ______                                        ____________________          4  We  taken no  position, however,  on the  question of  whether          Sullivan's   loss  constitutes   purely  "economic   loss"  under          Oceanside.   We note  in passing that,  with respect  to Vernay's          _________          liability  under theories of  negligence or strict  liability, we          express no opinion as to the district court's assertion that "the          [Maine] Law  Court has not  decided th[e] issue" of  the economic          loss  doctrine's applicability to recoveries under such theories,          Sullivan v. Young  Bros. & Co., 893  F. Supp. 1148, 1153  (D. Me.          ________    __________________          1995),  in light  of  Oceanside  at Pine  Point  Condo. Ass'n  v.                                _______________________________________          Peachtree Doors, Inc.,  659 A.2d 267, 270-71  (Me. 1995) (decided          _____________________          two months prior to Sullivan)  (stating that "plaintiffs may  not                              ________                                         -21-          Int'l Mfg., 76 F.3d 372, 1996 WL 36977, *2, (4th Cir.  1996) (per          __________          curiam)  (finding  it  "unnecessary to  address  the  question of          whether   labelling  on   the  [product]   created  any   express          warranties,"  since the court had affirmed claim for compensatory          damages on a negligence count); Compton v. Wyle Laboratories, 674                                          _______    _________________          F.2d 206, 208 n.1 (4th Cir. 1982) (declining to address alternate          theory of  breach of  warranty on which  plaintiff had  prevailed          below,  since  the  court of  appeals  affirmed  district court's          finding  of liability  based on  negligence);  Drayton v.  Jiffee                                                         _______     ______          Chem.  Corp.,  591  F.2d  352, 358  (6th  Cir.  1978)  (upholding          ____________          district  court's conclusion  of liability  solely  on breach  of          express warranty grounds, without ruling with respect to court of          appeals'  concerns  regarding  district  court's  conclusions  of          liability   on  bases  of  breach  of  implied  warranty,  strict          liability and negligent design).5                                        ____________________          recover for [economic] damages in tort").          5  Vernay also contends that the district court's judgment should          be reversed because Sullivan's insurers made payments to Sullivan          as "volunteers"  and were under  no contractual obligation  to do          so, but  we  think this  argument is  without merit.   As  Vernay          itself  states in  its brief,  an  insurer is  a "volunteer"  and          without rights to  subrogation only if it pays  its insureds when          it  clearly has no  obligation to do  so under its  policy.  See,              _______                                                  ___          e.g., Allstate Ins. Co. v. Quinn Constr. Co., 713 F. Supp. 35, 38          ____  _________________    _________________          (D. Mass. 1989) (stating that  an insurer "could be characterized          as a  volunteer only if it paid [insured]  when it clearly had no          obligation to do so," and any "doubt . . . is  construed in favor          of the insurer and the nonexistence of a volunteer status").  The          purpose of this rule is "to encourage insurers to settle promptly          claims that appear to be valid."  Id.  To be sure, Vernay asserts                                            ___          that because Sullivan's policy states that recovery shall be made          "provided such  loss or damage has not  resulted from want of due          diligence by  the assured," the  insurer acted as a  volunteer in          paying  Sullivan  despite  his negligent  conduct.    However, we          conclude that the  district court did not err  in concluding that                                         -22-                                  Sullivan's Conduct                                  Sullivan's Conduct                                  __________________                    Vernay also  appeals the district court's  finding that          its acts were the proximate cause of Sullivan's injuries.  Vernay          contends  that Sullivan's  own actions  were  an intervening  and          superseding  cause of  his loss.   Because  proximate cause  is a          factual inquiry,  the district court's  determination must  stand          unless it  is clearly  erroneous.   See Clement,  980 F.2d at  53                                              ___ _______          ("[c]ausation-in-fact is,  by definition a factual inquiry" under          Maine law); Greenstreet, 623 A.2d at 1271 ("[p]roximate cause  is                      ___________          a question of fact").                    The district court ruled that the breach of the express          warranties  was  collectively the  cause  of the  failure  of the          Vernatube,  which   in  turn  caused   the  complained-of   harm.          Sullivan, 893  F. Supp.  at 1159.    Vernay correctly  identifies          ________          evidence  that Sullivan's own  actions could have  contributed to          the  SEA  FEVER's sinking.    However,  the  district court  also          considered expert  testimony regarding  the Vernatube's  physical          defects and their role in  the SEA FEVER's sinking.  Furthermore,          the  district  court  reduced  Sullivan's  recovery  accordingly.          Based  on our review of this evidence, we conclude that there was          sufficient evidence  to render  the  district court's  conclusion          reasonable.   As a result,  we cannot conclude that  the district          court's finding that Vernay  proximately caused the complained-of                                        ____________________          any  consequent argument  that the  insurer  was not  necessarily          required to pay  Sullivan was not sufficiently compelling to meet          the legal standard that the  insurer clearly had no obligation to                                               _______          pay.                                         -23-          harm was clearly erroneous.   Accordingly, we affirm the district          court's  conclusion that Vernay is liable  to Sullivan for breach          of its express warranty.                    We  note in  passing that  we do  not opine  on whether          Sullivan's recovery  under a  breach of  express warranty  theory          could  appropriately  be  reduced  under  comparative  negligence          principles, since Sullivan  does not cross-appeal  the reduction.          As the district court properly noted, whether such a reduction is          permissible  regarding a  breach-of-warranty theory  is an  "open          question  under Maine  law."    Sullivan, 893  F.  Supp. at  1161                                          ________          (citing Dongo v.  Banks, 448 A.2d 885, 891  (Me. 1982) (expressly                  _____     _____          declining to decide  the issue of whether  plaintiff's negligence          is or  should be  a defense to  an action  for breach  of implied          warranty)).  The district court reduced Sullivan's recovery under          both express warranty and implied warranty  theories on the basis          of  trends in case law applying comparative negligence principles          to  actions for breach  of implied warranties.   Id.   We neither                                     _______               ___          adopt  nor reject the principle that express warranties implicate          the same  interests as  implied warranties  with respect  to this          question.6   Rather, we uphold the  reduction of Sullivan's award                                        ____________________          6   Some courts  have apparently extended  comparative negligence          principles  to actions for  breach of  express warranties.   See,                                                                       ___          e.g., Haysville U.S.D.  No. 261 v. GAF Corp.,  233 Kan. 635, 644,          ____  _________________________    _________          666 P.2d 192,  201 (1983); Interwest Constr. v.  Palmer, 886 P.2d                                     _________________     ______          92, 99-100 (Ct. App.  Utah 1994); see also Merritt Logan, Inc. v.                                            ________ ___________________          Fleming Cos.,  901 F.2d 349,  365 (3d Cir. 1990)  (construing New          ____________          Jersey  statutes   to  authorize  consideration   of  comparative          negligence in assessing  damages for breach of  warranty, without          stating whether holding  applies to express warranties).  But see                                                                    _______          Shaffer v. Debbas, 21 Cal. Rptr. 2d 110, 114 (Cal. Ct. App. 1993)          _______    ______          (stating that  "comparative  negligence is  not  a defense  to  a                                         -24-          because of his waiver by  failing to cross-appeal.  As  a result,          we  caution that  our  decision  to allow  a  reduction under  an          express warranty theory for comparative negligence does not stand          for an endorsement  of comparative negligence's applicability  to          express warranty theory-based claims.                            B.  Young Brothers' Liability                            B.  Young Brothers' Liability                    Vernay  argues that the district court erred in finding          no  liability  on the  part  of  Young  Brothers on  theories  of          negligence, implied warranty and strict liability.  Sullivan also          argues that  the district court  correctly found no  liability on          Young  Brothers' part  under  a negligence  theory, but  that the          district court  erred in  finding Young  Brothers not liable  for          breach of implied warranty.  We address Young Brothers' liability          on each of these theories in turn.                                     Negligence                                      Negligence                                     __________                    Vernay  argues that the district court erred in finding          no liability on  Young Brothers' part under  a negligence theory.          Vernay makes  a two-part  argument.   First,  Vernay argues  that          Young Brothers  was negligent in  its design and building  of the          SEA  FEVER.   Second,  Vernay contends  that  Young Brothers  was          negligent in its  conduct after the SEA FEVER  had been delivered          to Sullivan.                    With  respect to Vernay's first argument, we affirm the          district court's conclusion that Young Brothers was not negligent          in designing and building the SEA FEVER.  Vernay points  out that                                        ____________________          breach of express warranty action").                                         -25-          Young  Brothers used  a  rigid  installation  of  the  Vernatube,          disregarding  written  boat  building  standards,  and  that  the          district court heard testimony  disapproving of such installation          methods.  But  the district court also heard  testimony of others          in the industry to the  effect that the installation of Vernatube          in the SEA FEVER was typical  of customary installation practices          in Maine7 -- and  custom within the boat building profession is a          factor relevant to  the standard of care owed  by Young Brothers.          See Restatement  (Second) of Torts    294A (1965).   The district          ___          court  also heard  testimony as  to  the relatively  trouble-free          operation  of Vernatube generally with rigid installation.  While          Vernay may wish it otherwise,  ours is not the task  of crediting          witnesses,  see Coastal Fuels  of Puerto Rico,  Inc. v. Caribbean                      ___ ____________________________________    _________          Petroleum Corp.,  79 F.3d  182, 195 (1st  Cir. 1996);  Wytrwal v.          _______________                                        _______          Saco  Sch.  Bd.,  70  F.3d  165, 171  (1st  Cir.  1995),  and the          _______________          testimony of these witnesses, we conclude, justified the district          court's conclusion that Young  Brothers acted without negligence,          see The T.J.  Hooper, 60 F.2d  737, 740 (2d  Cir.) (L. Hand,  J.)          ___ ________________          (stating that  the court  should not find  that the  "whole [boat          building] calling may  have unduly lagged" without  good reason),          cert. denied, 287 U.S. 662 (1932).          ____________                                        ____________________          7   In fact, another boat builder testified that he had been  "in          every  boatyard up and  down the Maine  coast" and  he had "never          seen it  done differently."  See Sullivan,  893 F. Supp. at 1157.                                       ___ ________          Additionally, Vernay's distributor in Maine testified that 90% of          boat  builders  install Vernatube  in  the  same  way as  it  was          installed in SEA FEVER.  Id.                                     ___                                         -26-                    Vernay also  contends that Young Brothers was negligent          in failing to notify Vernay regarding the 1991 crack.  We dismiss          this  argument for  the same  reason that  we  dismissed Vernay's          claim that Vernay  is not liable because  it was not  notified of          the 1991 crack.   In fact, Sullivan notified  Young Brothers, and          Young Brothers in turn notified  H & H Propellers, Vernay's Maine          distributor and the  supplier from whom Young  Brothers purchased          the Vernatube.  In light  of this notice to Vernay's distributor,          we cannot  accept the contention that Young  Brothers was somehow          negligent in its handling of the  1991 crack.  Vernay also argues          that Young  Brothers was  negligent in not  finding the  cause of          this  crack; however,  one must  possess  a duty  before one  can          breach it,  and as  Vernay has not  pointed to  authority showing          that Young Brothers owed a duty beyond notifying its supplier, we          reject  this contention.   As  a result,  we conclude  that Young          Brothers cannot be held liable under a negligence theory.                        Implied Warranty and Strict Liability                        Implied Warranty and Strict Liability                        _____________________________________                    Vernay  argues that the district court erred in finding          Vernay liable  and Young  Brothers not  liable under  theories of          implied warranty  and strict liability.   Vernay argues  that the          district court erred by concluding that Vernay was liable under a          theory of implied warranty, while  Young Brothers did not  breach          its  implied  warranty that  the  vessel  would  be fit  for  its          ordinary use.  Additionally,  according to Vernay, both  of these          parties  participated  in  the sale  of  the  allegedly defective          Vernatube, and therefore, it is  impossible for Vernay to be held                                         -27-          strictly  liable  and Young  Brothers  not  to be  held  strictly          liable.                    The  district  court  correctly  concluded  that  Young          Brothers  could not  be found  liable  for breach  of an  implied          warranty of merchantability.  Maine's version of Article 2 of the          UCC  provides  that   "a  warranty  that   the  goods  shall   be          merchantable  is implied  in a  contract  for their  sale if  the          seller is a  merchant with respect to  goods of that kind."   Me.                                ___________________________________          Rev. Stat. Ann. tit. 11,  2-314(1) (emphasis added).  In Suminski                                                                   ________          v. Maine Appliance Warehouse, 602 A.2d 1173 (Me. 1992), the Maine             _________________________          Law Court  interpreted the phrase  "goods of that kind."   Id. at                                                                     ___          1175 (discussing section 2-314(1)).  The Law Court concluded that          a defective  switch that did not  affect use of a  television for          more than a  year did not  render a seller of  televisions liable          for breach of  an implied warranty.  In particular, the Law Court          stated that                      the  sale of  a  major  appliance with  a                      switch  that fails more than a year later                      cannot support a finding  that the entire                      appliance was  unmerchantable when  sold.                      To   use   an  automotive   example,   an                      unmerchantable battery may  not render an                      entire vehicle unmerchantable.          Suminski, 602 A.2d at 1175.   We conclude, similarly, that in the          ________          instant  case, where the Vernatube did  not impede use of the SEA          FEVER for more than one year, and Young Brothers sells boats, not          Vernatube, Young Brothers cannot be  held liable for breach of an          implied warranty of fitness for ordinary purposes.                                         -28-                    However,  we  cannot  agree with  the  district court's          conclusion  that  Young  Brothers  was  not  strictly  liable  to          Sullivan.  Maine's strict liability statute provides that                      [o]ne who sells any goods  or products in                      a   defective   condition    unreasonably                      dangerous to the user or consumer  or his                      property  is  subject  to  liability  for                      physical harm thereby caused  to a person                      whom the manufacturer, seller or supplier                      might  reasonably have  expected to  use,                      consume or be  affected by the goods,  or                      to  his property  . .  .  . This  section                      applies although the seller has exercised                      all possible care in  the preparation and                      sale  of  his  product  and  the  user or                      consumer has not  bought the product from                      or entered into  any contractual relation                      with the seller.          Me. Rev. Stat. Ann. tit. 14,   221.  The district court concluded          that  Young Brothers was  not strictly liable  because "the rigid          installation of SEA FEVER's exhaust system was not a cause of the                                                         ___________          failure in the Vernatube."  Sullivan, 893 F. Supp. at 1155.  This                                      ________          conclusion  cannot  be  reconciled with  the  statute's  explicit          direction that a seller's  liability attaches notwithstanding the          seller's  exercise  of "all  possible  care."   If  the Vernatube          section was  "defective"  and "unreasonably  dangerous,"  as  the          district court  suggests in its  opinion, it would  be immaterial          that  Young  Brothers'  own  actions  did  not  cause  Sullivan's          injuries.   As  a result,  we  must vacate  the district  court's          judgment that Young  Brothers was not liable to  Sullivan under a          strict liability theory.                    Young  Brothers'  sole apparent  argument to  rebut the          conclusion that it is strictly  liable to Sullivan is that, based                                         -29-          on Suminski,  Young Brothers'  should be  considered a  seller of             ________          boats,  not the  Vernatube in  the  boats.   As discussed  above,          Suminski  applies  on its  face  to allegations  that  an implied          ________          warranty of merchantability has been violated, not to theories of          strict liability.   Suminski, 602 A.2d at 1175.  We decline to so                              ________          greatly extend  Suminski's reach, and  as a result we  must grant                          ________          judgment to  Sullivan against  Young Brothers under  a theory  of          strict liability.  As the parties have neither briefed nor argued          Maine indemnification  law among  tortfeasors, we  remand to  the          district court for further  proceedings regarding Young Brothers'          rights to indemnity from Sullivan.                                         C.  Damages                                     C.  Damages                    Vernay also challenges the district court's computation          of Sullivan's damages.    In particular, Vernay  takes issue with          the district  court's choice  of the cost  of repair  rather than          diminution in  the value  of the damaged  property.   Under Maine          law, both measures may  be used to  prove the amount of  damages.          See Paine v. Spottiswoode, 612 A.2d 235, 240 (Me. 1992).          ___ _____    ____________                    "Generally, we  will  not substitute  our judgment  for          that of  the  [factfinder]  in  assessing damages  and  will  not          disturb the [factfinder's]  damage award unless  that award is  a          product  of bias, prejudice,  improper influence, or  was reached          under a mistake of law or  in disregard of the facts."   Bradford                                                                   ________          v. Dumond, ___ A.2d  ___, ___, 1996 WL 242615, at  *5 (Me. 1996);             ______          Currier v. Cyr,  570 A.2d 1205,  1210 (Me. 1990).   The  district          _______    ___          court "is entitled  to act upon probable and  inferential as well                                         -30-          as direct and positive proof  in determining damages."  Bradford,                                                                  ________          1996 WL 242615,  at *5; Cyr,  570 A.2d at  1210.  In  the present                                  ___          case, we think  that the district court was  justified in relying          on   the   undisputed   costs   of   Plaintiff's   initial   loss          investigation,  the cost  of a  salvor  to raise  the SEA  FEVER,          Plaintiff's  repair costs  for the  vessel's  machinery, and  the          insurer's estimate of water damage to the deck and superstructure          of the vessel.  As  a result, we do  not think that the  district          court's estimate of Plaintiff's loss, reduced for Plaintiff's own          comparative negligence,8 of  $54,318.68 can be said  to have been          made in disregard of the facts.  And certainly, no contention has          been made  that the award was  the product of  bias, prejudice or          improper influence.                      However,  we conclude  that a  mistake  of law  compels          reduction of the  award by $5,000 -- the amount of the settlement          between H  & H Propellers and Sullivan.   Under Maine Law, when a          person seeks recovery  for property damage caused by  two or more          parties, if a settlement  or release is made with one party, "the          trial judge shall reduce the verdict [against the non-settling or          non-releasing  party  or  parties]  by  an  amount  equal to  the          settlement with or the consideration for the release of the other          [party or parties]."  Emery Waterhouse Co. v. Lea,  467 A.2d 986,                                ____________________    ___          995  (Me.  1983).   The  district  court  neglected to  take  the          settlement  with H  & H  Propellers  into account  in fixing  the                                        ____________________          8  See, supra n.6.             ___  _____                                         -31-          verdict.  As a result, the verdict against Vernay must be reduced          to $49.318.68.                                      CONCLUSION                                      CONCLUSION                                      __________                    For  the   foregoing  reasons,  the   district  court's          decision is affirmed in part and  reversed in part.  No costs  to                      affirmed in part      reversed in part.                      ________________      ________________          any party.                                         -32-
