Lobsterman Unable to Recover Lost Profits from Catastrophic Oil SpillS

Hall v. Eklof Marine Corp., 339 F. Supp. 2d 369 (D. R.I. 2004).

Lance M. Young, 2L, Roger Williams School of Law

On January 19, 1996 the tugboat Scandia and barge North Cape grounded and caught fire off a Rhode Island beach, resulting in the largest oil spill in Rhode Island’s history and devastating losses of marine life and migratory birds in the Rhode Island and Block Island Sounds. A lobsterman who traps lobster approximately seventeen miles north of the spill filed suit in 2002 against those responsible for what is called the North Cape oil spill. The lobsterman’s catch in 2000 was less than half of his catch in 1996. The district court dismissed the claims on summary judgment because it found no actual and proximate cause between the oil spill in 1996 and the lobsterman’s depleted catch.

The North Cape Oil Spill
The weather forecast on January 18, 1996 predicted severe winter storms and high winds over Rhode Island on the day of the North Cape oil spill. Despite the storm warnings, the captain and crew of the Scandia set out for Rhode Island from New Jersey with four million gallons of home heating oil in tow. Failing to heed weather conditions, however, was not the Scandia’s only mistake. The North Cape was being towed without its anchor windlass, which was essential for raising and lowering the barge’s 6,000-pound anchor. Because the windlass was broken, the crew left it behind and depended on a wire and rope rigging to hold the anchor. The crew was instructed to use the makeshift replacement only in an emergency because its use was very difficult.

Emergency ensued as the Scandia ventured into the North Atlantic winter storm and the crew was unable to lower the North Cape’s 6,000-pound anchor because of the storm’s severity. The Scandia’s voyage ended when it and the barge grounded off a Rhode Island beach and caught fire, releasing 828,000 gallons of oil into the water and covering nine miles of Rhode Island shoreline. The vast area of affected waters was closed to fishing for several months. The spill had devastating effects on both marine life and migratory birds in the affected areas: authorities reported removing almost three million dead lobsters from Rhode Island beaches. The oil spill killed approximately nine million lobsters in Rhode Island and Block Island Sounds. A joint task force of federal and state agencies implemented a restoration plan for the oil spill in September of 1996 leading to the placement of 1.5 million lobsters in 2000 as part of the restoration plan.

The Lobsterman’s Claims
Thomas Hall operates a lobster boat in Narragansett Bay approximately seventeen miles north of the North Cape oil spill location. Narragansett Bay was not closed off to fishing after the oil spill, nor was it declared an affected area by federal or state authorities. Lobsters, however, migrate and Hall contended that had lobsters not been killed as a result of the North Cape oil spill, they would have migrated north into Narragansett Bay where he set traps. His annual catch in 2000 was 20,845 pounds compared to 45,743 pounds in 1996.

Hall filed five separate claims in Rhode Island state court against companies that were affiliated with the Scandia and North Cape, the director in charge of the Scandia’s maintenance, and her captain. Under the Rhode Island Environmental Injury Compensation Act (Rhode Island Act), he filed both a strict liability and negligence claim.1 Kathleen Castro, Director of the Sea Grant Fisheries Extension Program at the University of Rhode Island, was Hall’s exclusive expert witness. Castro was keenly familiar with the North Cape oil spill and was an expert on lobster migration in Rhode Island. Castro’s affidavit supported Hall’s migration assertions and stated that the oil spill probably affected lobster catches in Narragansett Bay; in fact, lobster were placed in Narragansett Bay as part of the restoration plan. She also noted that lobster catches were down in the entire region, and that low lobster landings in Narragansett Bay could also be attributed to other environmental factors and over-fishing.

Hall also planned to present other scientific studies that revealed lobster migration patterns in Rhode Island and the negative impacts that the North Cape oil spill has had and will have on the state’s lobster fishery. Authors of those reports were planning to testify at trial, but were only offered as lay witnesses. Lay witnesses, as opposed to expert witnesses, may only testify to observations based on their own perceptions. While the court opinion does not specify why these witnesses were offered as lay witnesses, Hall more than likely failed to introduce them as expert witnesses within the required discovery period. Castro was only introduced a day before the discovery period came to a close.

Court’s Analysis
Before the case reached trial, defendants moved for a summary judgment on each claim. If the plaintiff in a case is unable to provide any pre-trial evidence showing a genuine issue of material fact, the court may grant a motion for summary judgment and the moving party is entitled to a judgment as a matter of law.2 The court’s task was to determine whether Hall had any evidence for which a jury could return a verdict in his favor. In the court’s view, Hall had to show that his fishing spot was affected by the oil spill and the effects of the oil spill must be distinguished from other factors that might have affected the lobster in Narragansett Bay.

The court acknowledged that Hall’s lobster migration evidence could establish a genuine issue of material fact but failed to find any causal connection between the oil spill and Hall’s depleted lobster catch.

Causation was an essential element of Hall’s strict liability claim, statutory negligence claim, and common law negligence claim. Under Rhode Island law, causation is shown when a plaintiff can show his/her injury would not have occurred “but for” the defendant’s negligence.3

Hall relied almost exclusively on the expert testimony of Castro. While Castro’s testimony supported Hall’s claims in many ways, her affidavit also suggested that a number of factors other than the oil spill probably contributed to depleted lobster catches in the Narragansett Bay. She provided testimony that lobster production decreased from Massachusetts to Long Island Sound at the same time Hall’s lobster catch declined. Although Castro’s testimony does not discount the North Cape oil spill as a cause, it affirms that the oil spill is not separate and distinct from other causes of declining lobster populations. The court concluded that the evidence supplied “speaks in terms of ‘possibilities’ and not ‘probabilities,’ and does not state with sufficient degree of positiveness that Plaintiff’s injuries are the result of the Oil Spill.”4 Because the punitive damage claims were dependent on the success of the other three, the court ruled in favor of defendants on all five claims.

Conclusion
Despite the court’s ruling against Hall, it seemed to concede that had the oil spill never occurred, the lobster population in Narragansett Bay would be more plentiful today. The Rhode Island Act was enacted to help individuals injured in situations like this one. The oil spill most likely contributed to Hall’s disappointing lobster landings, but in this case, there had to be other evidence that could convince a jury that the oil spill distinctly and separately had an identifiable effect on the lobster population. Castro’s affidavit confirmed that the oil spill was not the “but for” cause of Hall’s injuries; instead, it asserted that injury would have occurred despite the oil spill.

Hall’s lay witnesses, if presented as expert witnesses, might have helped his case go to trial. One of them could have testified, with real percentages, that the death of 9 million lobsters could affect the future lobster population in Narragansett Bay. Another witness could have testified that lobsters do migrate from Rhode Island and Block Island Sounds to Narragansett Bay. The testimony of these two witnesses, taken together, might have enabled the jury to find that the oil spill actually and directly depleted lobster in Narragansett Bay. While this case on the surface appears to be a hurdle for victims of environmental destruction, the outcome probably has more to do with the plaintiff’s pre-trial mistakes.

Endnotes
1. R.I. Gen. Laws § 46-12.3-4 (2003).
2. Federal Rules of Civil Procedure 56(c).
3. Evans v. Liguori, 374 A.2d 774, 777 (R.I. 1977)..
4. Hall v. Eklof Marine Corp., 339 F. Supp. 2d 369, 380 (D. R.I. 2004).