The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
IN THE MATTER OF THE )
COMPLAINT OF THE MAINE )
MARITIME MUSEUM, AS OWNER ) Docket No. 2:21-cv-00238-NT
OF THE SCHOONER MARY E, )
FOR EXONERATION FROM OR )
LIMITATION OF LIABILITY )
DEFAULT JUDGMENT AND DECREE OF EXONERATION
Before me are Plaintiff Maine Maritime Museum’s Renewed Motion for Entry
of Default Judgment and Decree of Exoneration (“Renewed Motion for Default
Judgment”) (ECF No. 44) and the Plaintiff’s Motion in Limine as to Evidence of
Compromise of Claims (ECF No. 49). For the reasons stated below, both motions are
GRANTED.
BACKGROUND
On August 20, 2021, The Maine Maritime Museum (the “Plaintiff” or the
“Museum”), as owner and operator of the Schooner Mary E, filed a Complaint
pursuant to the Limitation of Liability Act (the “LOL Act”), 46 U.S.C. §§ 30501–12,
and Rule F of the Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions (“Supplemental Rule F”) of the Federal Rules of Civil Procedure.
Compl. (ECF No. 1). The Complaint sought exoneration and limitation of liability for
all losses, damages, or destruction caused by or resulting from the knock-down of the
Mary E on July 30, 2021, while the vessel was carrying passengers on a Kennebec
River cruise that sailed out of Bath, Maine. Id.
On August 26, 2021, the Court entered an order, requiring the Plaintiff to file
an ad interim stipulation for value in the form of a surety bond in the amount of
$150,000.00. Order Regarding Motion for Order Directing Issuance of Notice,
Approving Plaintiff’s Appraiser’s Report, and Restraining Prosecution of Claims
(ECF No. 7). As required under Supplemental Rule F, I established a monition period,
ending November 15, 2021, and issued a restraining order prohibiting the filing of
any claim in any other court or jurisdiction. Order Directing Issuance of Notice and
Restraining Prosecution of Claims (ECF No. 10). During this time, the Museum
mailed notice to known potential claimants and published notice in the Portland
Press Herald stating that potential claimants were to file claims within the monition
period or face the entry of default and default judgment. Decl. of William H. Welte
¶¶ 9–13 (ECF No. 21); Decl. of William H. Welte Ex. B (ECF No. 21-2).
Three individuals filed claims against the Museum. On October 19, 2021,
Karen Baldwin filed a claim. Answer, Claim & Countercl. (ECF No. 13). And on
November 12, 2021, Allison Poirier and Thomas Poirier both filed claims. Answer &
Claim (ECF No. 15); Answer & Claim (ECF No. 16). All three claimants of record
subsequently agreed to dismiss their claims against the Plaintiff with prejudice. See
Stipulations of Dismissal of Claims (ECF Nos. 36, 38).
On November 16, 2021, after the monition period had ended, the Plaintiff
moved for an entry of default against all claimants who had not filed claims by the
November 15, 2021 deadline. Mot. for Entry of Default (ECF No. 20). In accordance
with Federal Rule of Civil Procedure 55(a) and Supplemental Rule F(5), the Clerk of
Court granted the Plaintiff’s motion on November 17, 2021. Order (ECF No. 22). No
further claims have been filed.
On March 2, 2022, the Plaintiff moved for default judgment and an exoneration
decree as to all non-appearing claimants. Mot. for Default J. and Exoneration Decree
as to Non-Appearing Claimants (ECF No. 34). After reviewing the Plaintiff’s initial
motion, I held a telephonic conference (ECF No. 37) with counsel for the Plaintiff on
March 7, 2022, during which time I asked for supplemental briefing on two issues:
(1) the Plaintiff’s entitlement to an exoneration decree absent some factual
determination on the question of the Museum’s degree of culpability, and (2) the
Plaintiff’s entitlement to default judgment, particularly as this form of relief is
impacted by the special consideration of minors and “incompetent” persons contained
in section 30508(d) of the LOL Act and Federal Rule of Civil Procedure 55. Following
the conference, the Plaintiff submitted supplemental briefing again asking me to
grant its motion for default judgment and an exoneration decree. Me. Mar. Museum’s
Suppl. Br. in Supp. of its Mot. for Entry of Default J. with Exoneration Decree as to
Non-Appearing Claimants (ECF No. 39).
Based on the lack of information before me that would support exoneration or
limiting liability, I denied the Museum’s motion for default judgment and for an
exoneration decree. Order on Mot. for Entry of Default J. with Exoneration Decree as
to Non-Appearing Claimants (“First Order”) (ECF No. 41). Specifically, I held that
the record did not permit me to find: (1) that the Plaintiff was entitled to exoneration
because there was not enough factual information to support a finding both that the
Mary E was seaworthy and that the Museum was not negligent; and (2) that the
Plaintiff was not entitled to an order limiting liability because the Complaint failed
to provide the facts on which the right to limit liability was asserted. First Order 6–
9. I subsequently entered a docket text-only order stating that “the Plaintiff may
request an evidentiary hearing on its entitlement to limitation of liability and
exoneration.” Order (ECF No. 42). On July 11, 2022, the Plaintiff took me up on this
offer and filed a request for an evidentiary hearing, or alternatively an opportunity
“to renew its motion for default judgment and exoneration decree and file factual
witness affidavits and documentation in support thereof.” Pl.’s Req. for Evid. Hr’g
(ECF No. 43).
With the Court’s permission, in August of 2022, the Plaintiff filed its Renewed
Motion for Default Judgment and several supporting affidavits and exhibits.
Renewed Mot. for Default J.; Decl. of Jason Morin (“Morin Decl.”) (ECF No. 45);
Decl. of Jonathan B. Smith (“Smith Decl.”) (ECF No. 46); Decl. of Thomas Farrell
(“Farrell Decl.”) (ECF No. 47); Decl. of Christopher Flansburg (“Flansburg Decl.”)
(ECF No. 48).
DISCUSSION
As I explained in my First Order, the LOL Act limits shipowner liability to “the
value of the vessel and pending freight” for claims “arising from any embezzlement,
loss, or destruction of any property, goods, or merchandise shipped or put on board
the vessel, any loss, damage, or injury by collision, or any act, matter, or thing, loss,
damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge
of the owner.” 46 U.S.C. § 30505. To initiate the protections of the Act, “[t]he owner
of a vessel may bring a civil action in a district court.” 46 U.S.C. § 30511(a). A vessel
owner’s complaint seeking limitation of liability “may demand exoneration from as
well as limitation of liability.” Fed. R. Civ. P. Suppl. R. F(2). Limitation operates as a
“partial exemption [from liability] to the extent of the value of the owner’s interest in
the vessel and her pending freight,” while exoneration is the “complete exoneration
from liability.” 3 BENEDICT ON ADMIRALTY § 74.
In a limitation proceeding brought under the LOL Act, I engage in a two-step
inquiry. First, I must determine whether the shipowner is entitled to exoneration, or,
in other words, whether any “acts of negligence or unseaworthiness caused the
casualty.” In re Bridge Constr. Servs. of Fla., Inc., 39 F. Supp. 3d 373, 382 (S.D.N.Y.
2014). “Exoneration is contingent upon a finding of no contributory fault.” Tittle v.
Aldacosta, 544 F.2d 752, 756 (5th Cir. 1977). “If no liability is found to exist, the
petitioner is entitled to a decree of exoneration, and there is no need to consider the
claim to limitation, for if no liability exists there is nothing to limit.” In re Trawler
Snoopy, Inc., 268 F. Supp. 951, 953 (D. Me. 1967) (quotation marks omitted). If I find
that the shipowner is not entitled to exoneration, I then move on to the second step,
wherein I must determine whether the shipowner had knowledge or privity of the
fault (i.e., the acts of negligence or unseaworthiness) that caused the casualty. See
Bensch v. Est. of Umar, 2 F.4th 70, 73 (2d Cir. 2021).
Here, I find that the Museum has now met its burden of proof and established
that it is entitled to exoneration. I begin by taking the well-pleaded factual allegations
in the Complaint as true. See Munson v. 1979 26 Cal Sailboat, No. 2:21-cv-0418-KJM-
CKD, 2022 WL 215119, at *2 (E.D. Cal. Jan. 25, 2022) (“Once default is entered, well-
pleaded factual allegations in the operative complaint are generally taken as true
. . . .”). The Complaint alleges that the Museum “used due diligence” to ensure that
the Mary E was seaworthy and safe, properly equipped and supplied, and “in all
respects seaworthy and fit for the services for which she was engaged.” Compl. ¶ 3. I
then turn to the additional evidence provided by the Plaintiff to determine whether
any acts of negligence or unseaworthiness on the part of the Museum caused the
knock-down casualty in question.
The Museum acquired the Mary E in late 2016 and restored the vessel in 2017
and 2018. See Morin Decl. ¶¶ 5–9. Before deploying the Mary E as a passenger-
carrying vessel, the Museum worked with the United States Coast Guard and
qualified shipwrights and naval architects, including Thomas Farrell, to acquire the
certification and authority to allow the vessel to carry passengers. Morin Decl. ¶¶ 5–
7. In June of 2018, the Coast Guard conducted a stability test and issued a stability
letter confirming that the Mary E “ha[d] satisfactory stability for passenger service
on partially protected waters” subject to certain operating restrictions, such as a
maximum of 33 persons on board. Morin Decl. ¶ 8; Morin Decl. Ex. B (ECF No. 45-
2). The stability testing corroborated the review and calculations made by Naval
Architect and Marine Engineer Farrell, who concluded that the Mary E met the
requirements for vessels of her type and configuration pursuant to 46 C.F.R.
§ 178.330. Farrell Decl. ¶¶ 3–5. Mr. Farrell opines that if the Mary E was sailing in
the same configuration as when tested, without additional ballast or weights and
with only mainsail and jib raised and with no more than 18 people on board, then
“the vessel was operating well within compliance of the stability letter.” Farrell Decl.
¶ 7. The Plaintiff also has submitted the Coast Guard-issued Certificate of Inspection
for the Mary E, which had a June 2023 expiration date and permitted the Museum
to operate the Mary E carrying passengers on the navigable waters of the Kennebec
River. Morin Decl. ¶ 9; Morin Decl. Ex. C (ECF No. 45-3).
In addition, the Museum has provided testimony in the form of a sworn
declaration from Captain Jonathan B. Smith, the licensed vessel master of the Mary
E on the day of the casualty. See Smith Decl. ¶ 5. Captain Smith has held a 1600 Ton
Auxiliary Sail Master (Oceans) License from the Coast Guard for about 25 years, has
experience on many seagoing vessels, including a number of traditionally rigged sail
training schooners, such as the Harvey Gamage, the Westward, and the Roseway,
and was awarded a Lifetime Achievement Award by the American Sail Training
Association. Smith Decl. ¶¶ 2–4. Captain Smith had also sailed the Mary E previously
and is familiar with the vessel’s characteristics and behavior. Smith Decl. ¶ 14.
On July 30, 2021, the day of the casualty, Captain Smith had checked the
marine forecast for the area, and the weather was partly cloudy with good visibility
and a northwesterly wind of just 7–10 knots, gusting to 11–16 knots. Smith Decl. ¶ 5.
Captain Smith described what happened just before the knock-down:
There were 18 souls on board, 15 passengers and 3 crew, none of whom
were minors. The vessel proceeded uneventfully down [the Kennebec
River] under mainsail and jib only, heading with the wind downriver
against the current and the engine secured. Upon reaching at [sic] point
off of Morse Cove, a little after 1700 hours MARY E rounded up to
proceed back upriver, short tacking against the wind, with the flooding
current, assisted by the engine at low RPM and bound for the nun buoy
off Bath Iron Works. The wind in that area and at that time was light,
force 2–3. Just SE of Doubling Point Light MARY E was brought
through the wind on to a starboard tack to head in the direction of
Winnegance Cove, still motor sailing, with the sails sheeted close
hauled. A few hundred feet off the Light, MARY E experienced a sudden
wind gust of 20kts or less as best I can determine. The vessel leaned to
port in the gust, her scuppers went awash, then her rail as well.
Reacting as I normally would and as trained to do, I put the helm down
trying to round up into the wind, expecting the vessel to return to an
even keel as most vessels in my experience, specifically including MARY
E, do and have done. At no point did MARY E attempt to right herself
or to round up toward the wind; instead, she went over on her beam ends
with masts parallel to the water surface. In the manner just described,
MARY E sustained a “knock-down” . . . .
Smith Decl. ¶ 6 (footnote omitted). The fact that the Mary E did not right itself was
surprising to Captain Smith and was “a highly unusual and completely unexpected
occurrence in [his] career and experience.” Smith Decl. ¶ 14. Captain Smith states
that the entire knock-down happened in what seemed like less than five seconds.
Smith Decl. ¶ 7. Afterward, the three crew members passed out life jackets, made
mayday and 911 calls, and waited until all fifteen passengers were in rescue boats
before they left the Mary E. Smith Decl. ¶¶ 6–7.
Prior to the incident, Captain Smith had examined the stability letter and
Certificate of Inspection issued to the Mary E by the Coast Guard, and he was aware
of the restrictions imposed in them. Smith Decl. ¶ 9. Captain Smith testified that
“those restrictions and parameters were met and complied with” at all times that he
operated the vessel, including on the day of the incident. Smith Decl. ¶¶ 9–10. The
sail area and number of passengers were well below the restrictions, and the location
of the trip was well within the navigational limits. Smith Decl. ¶ 10. Captain Smith
testified that, on the trip in question, the “Mary E was properly manned, equipped,
sound, tight, staunch, strong, and in all respects seaworthy to the letter of the law.
She was constructed, outfitted, manned, and in all respects fitted, for the voyage
undertaken.” Smith Decl. ¶¶ 11–12. He also testified that he is unaware of anything
that would suggest that the Museum did not act as a reasonably prudent vessel owner
and operator of the Mary E at the time. Smith Decl. ¶ 13. Following the casualty,
Captain Smith was interviewed several times by representatives of investigating
agencies. Smith Decl. ¶ 15. Captain Smith does not believe that the cause of the
knock-down was in any way related to “any condition of the vessel, lack of care, or
inattention to duty on the part of the [Museum] or the vessel’s crew.” Smith Decl.
¶ 14.
Christopher Flansburg, another licensed and highly experienced vessel master
who personally knows both Captain Smith and the Mary E, confirmed via declaration
testimony that Captain Smith “has deep experience at sea and in particular with
traditional sail craft and the ability to safely and effectively command, operate, pilot
and navigate traditional craft such as the Schooner Mary E under sail.” Flansburg
Decl. ¶¶ 4–7. Captain Flansburg has sailed with Captain Smith and observed his
sailing from other vessels and states that Captain Smith “is a competent mariner who
commands traditional sail craft prudently and with due regard to the safety of his
passengers.” Flansburg Decl. ¶¶ 6–7. In Captain Flansburg’s opinion, Captain Smith
“is one of the most experienced Captains licensed to sail and actively sailing
traditional sailing vessels in the United States at this time.” Flansburg Decl. ¶ 7.
Based upon the foregoing evidence, and in the absence of any contravening
evidence, I find that the knock-down sustained by the Mary E was not caused by the
vessel’s unseaworthiness. The evidence shows that the vessel was seaworthy at the
time of the knock-down: the Mary E was issued a stability letter after having passed
a Coast Guard stability test; she held a valid Certificate of Inspection; and she was
being operated according to all of the limitations imposed by those documents.
Likewise, I find that the casualty was not caused by any contributory acts of
negligence on the part of the Museum or anyone acting under it, including the captain
and crew operating the Mary E at the time of the knock-down. The evidence shows
that the master of the vessel, Captain Smith, held a valid license and was very
experienced in sailing the Mary E and other schooners like her, and that the cause of
the knock-down was not related to any lack of care or negligent act by Captain Smith
or his crew members. Because I find no contributory fault, the Museum is entitled to
a decree of exoneration.
CONCLUSION
For the reasons stated above, I GRANT the Plaintiff’s Renewed Motion for
Entry of Default Judgment (ECF No. 44).1 All claimants of record have now agreed
1 The Plaintiff moved in limine to exclude evidence of compromise under Fed. R. Evid. 408 or
the principles animating that rule. Pl.’s Mot. in Lim. as to Evid. of Compromise of Claims (ECF No.
49). I have not considered the fact that the Plaintiff settled claims with three passengers as evidence
of liability. Accordingly, the Plaintiff’s Motion in Limine is GRANTED.
to dismiss their claims against the Plaintiff, with prejudice, and it appears by motion
of the attorneys for the Plaintiff that no further claims have been filed and that all
claims and answers filed herein against The Maine Maritime Museum have been or
will be dismissed, with prejudice. Thus the Plaintiff has no responsibility or liability
for the aforesaid matters and is entitled to a decree of exoneration from all claims
arising from the July 30, 2021 knock-down of the Schooner Mary E and related
matters.
It is therefore ORDERED, ADJUDGED, AND DECREED that The Maine
Maritime Museum is hereby exonerated for all claims arising from the July 30, 2021
knock-down of the Schooner Mary E; that the default of all persons, firms, and
corporations who may have sustained any damages, losses, or destruction caused by
or resulting from the knock-down of the Schooner Mary E and her crew who have not
filed claims is hereby entered; and that judgment by default of all such persons, firms,
and corporations and any state, county, government, government agency, or any
political subdivision thereof, or any other person or entity having or claiming to have
sustained any losses, damages, or destruction by reason of or in connection with the
aforesaid matters is hereby entered; and that the future filing or presentation of any
such claims or answers is hereby forever restrained.
It is FURTHER ORDERED, ADJUDGED, AND DECREED that the
knock-down of the Schooner Mary E on or about July 30, 2021 in the Kennebec River
off the Port of Bath, Maine, and any loss, destruction, damage, or injuries resulting
therefrom were done, occasioned, and occurred without the privity and knowledge of
the Plaintiff, The Maine Maritime Museum, and without negligence or fault or
liability on the part of the Museum and it is hereby forever exonerated and discharged
from any and all liability and any and all claims, losses, destruction, damage, or
injury arising out of or related to the knock-down of the Schooner Mary E, including
but not limited to the aforesaid claimants.
It is FURTHER ORDERED, ADJUDGED, AND DECREED that all bonds,
stipulations for costs and ad interim stipulations for value filed by The Maine
Maritime Museum be and are hereby forever cancelled and discharged of record, and
that Atlantic Specialty Insurance Company be and is hereby discharged from any
past, present, or future liability in connection with the bond posted herein.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 26th day of September, 2022.