Concordia v. Panek

• Court: Court of Appeals for the First Circuit
• Decided: June 4, 1997
• Docket: 96-1798
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 96-1798



                               CONCORDIA COMPANY, INC.,



                                Plaintiff - Appellee,



                                          v.



                                    ANTHONY PANEK,



                                Defendant - Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



              [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]
                                            __________________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                                Selya, Circuit Judge,
                                       _____________



                             and Saris,* District Judge.
                                         ______________



                                _____________________



               Richard H.  Gens, with  whom Lawrence  M. Perlmutter  was on
               ________________             _______________________

          brief for appellant.

               Stephen C. Fulton,  with whom Law Office of Bruce R. Fox was
               _________________             __________________________

          on brief for appellee.


____________________



                                     June 4, 1997

                                 ____________________


____________________



          *  Of the District of Massachusetts, sitting by designation.



SARIS, District Judge.   This case  began with a  bang.
                    SARIS, District Judge.
                           ______________



          In the early morning hours of March 29, 1993, Gerald Chapman, the



          night  watchman  at  Concordia   Company's  boat  yard  in  South



          Dartmouth,  Massachusetts, awoke  to the  sound of  an explosion.



          The PROWLER, a pleasure boat owned by Anthony Panek and moored at



          the boat yard, burst into flames.  Although fire fighters arrived



          in only  a few minutes, by  the time they  extinguished the blaze



          the  PROWLER was still afloat  but burned almost  to its gunnels.



          However, by morning the PROWLER had sunk beneath the briny waters



          of Apponagansett Bay, leaving an oil slick in its wake.  



                    A lawsuit ensued.  Concordia filed a complaint alleging



          a single count in admiralty for  its costs of cleaning up the oil



          and hauling the  remains of the  PROWLER out of  the Bay.   Panek



          counterclaimed for the damage done  to his boat, alleging  causes



          of action for breach  of contract, negligence, misrepresentation,



          and a violation of Chapter 93A of the Massachusetts General Laws.



          Panek  alleged  generally  that  Concordia did  not  fulfill  its



          promise  to provide adequate security  at the boat  yard and that



          the lack  of security caused the  fire.  Panek also  alleged that



          Concordia  should  have prevented  the  PROWLER  from sinking  by



          adequately securing it to the dock while it was still afloat.



                    The case  was  tried  to the  district  court  with  an



          advisory jury.   The district  court found for  Concordia on  its



          admiralty  claim for  all  of its  clean  up and  hauling  costs.



          However, it also found for Panek on his claims that Concordia was



          negligent and breached its contractual duty to secure the boat by


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failing to remove the hull of the boat from the water when it was



          still floating.  The  Court awarded damages to  Panek for all  of



          the  clean up and  half the hauling  costs, which  resulted in an



          offset  judgment for Concordia for half of its hauling costs.  On



          appeal, Panek argues that the district court erred by denying his



          request for  a jury trial  on his common  law counterclaims.   We



          affirm.



                              I.  PROCEDURAL BACKGROUND
                              I.  PROCEDURAL BACKGROUND



                    Concordia's  complaint  included  a   single  admiralty



          count, was captioned "In Admiralty", and stated it was within the



          court's admiralty and maritime jurisdiction  as set forth in Fed.



          R. Civ.  P. 9(h).   Plaintiff  made no demand  for a  jury trial.



          Panek's  pleading  containing the  Answer  and Counterclaims  was



          similarly  captioned  "In  Admiralty"  with  no  other  basis  of



          jurisdiction  stated and  no  jury demand  made.   This  pleading



          contained no  mention of Fed. R.  Civ. P. 9(h).   However, in its



          answer  to the counterclaims, Concordia made a jury demand, which



          it  later withdrew.  Before  trial, Panek moved  to bifurcate his



          common law  counterclaims from the complaint to  allow the former



          to be  tried  by jury.    He mistakenly  based  his motion  on  a



          previous request for a jury trial, which was never made, at least



          in writing.  The district court denied this motion.



                    After  the close  of  evidence at  trial, the  district



          court judge ruled that there was insufficient evidence to warrant



          a finding on  the negligence  count and submitted  the breach  of



          contract  and misrepresentation counts to the advisory jury.  The


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jury returned a verdict finding that Concordia was not liable for



          misrepresentation  but that it was liable to Panek for the breach



          of contract count in the amount of $16,000 -- the total amount of



          damage done to the PROWLER.  The district court declined to adopt



          the   advisory  jury's   verdict  on   the  breach   of  contract



          counterclaim, entering its own  bench judgment on all the  claims



          as  follows: Concordia  was not  liable for  misrepresentation or



          violating Chapter 93A;  Panek was liable for the  admiralty claim



          for $4,560.35; and Concordia was liable for negligence and breach



          of contract  for $3,938.50 -- the  cost of the clean  up and half



          the  hauling.   The  Court acknowledged  it  was "reversing"  its



          earlier determination that there was insufficient evidence on the



          negligence claim  with respect to Concordia's  failure to prevent



          the  PROWLER from sinking.   After offsetting  the two judgments,



          Panek was held liable for $621.85 plus statutory interest.



                               II. STANDARDS OF REVIEW
                               II. STANDARDS OF REVIEW



                    The primary  dispute on appeal is  whether the district



          court erred by failing to  submit Panek's common law claims  to a



          non-advisory jury.  Panek argues that  he retained his right to a



          jury  on  his common  law claims  under  the "saving  to suitors"



          clause of 28 U.S.C.   1333(1).1   We review claimed errors of law

                              
          ____________________



          1  The saving to suitors clause provides:



                    The  district  courts  shall   have  original

                    jurisdiction, exclusive of  the courts of the

                    States, of: (1) Any  civil case of  admiralty

                    or maritime jurisdiction,  saving to  suitors

                    in all cases all other remedies to which they

                    are otherwise entitled.


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de novo.  Windsor Mount Joy Mut. Ins. Co. v.  Giragosian, 57 F.3d
          _______   _______________________________     __________



          50,  53 (1st Cir. 1995) (citing Williams  v. Poulos, 11 F.3d 271,
                                          ________     ______



          278 (1st Cir.  1993); Blanchard  v. Peerless Ins.  Co., 958  F.2d
                                _________     __________________



          483,  487 (1st Cir. 1992)).   Panek also  challenges the district



          court's calculation  of damages.  "The  district court's findings



          of  fact,  however,  will  not  be  set  aside  unless  they  are



          demonstrated  to  be  clearly  erroneous."   Id.  at  53  (citing
                                                       ___



          Williams, 11 F.3d at 278; Fed. R. Civ. P. 52(a)).
          ________



                                   III. DISCUSSION
                                   III. DISCUSSION



                           A.  The Claimed Right to a Jury
                           A.  The Claimed Right to a Jury



                    The  first issue  the  Court considers  is whether  the



          counterclaimant waived any right  to a jury he may  have retained



          by designating his  counterclaim as "In  Admiralty" with no  jury



          demand.



                    If this  suit had  involved only  non-admiralty claims,



          Panek would  have had a right to  a jury trial on  his common law



          claims.   Fed. R. Civ.  P. 38(a)  provides that  "[t]he right  of



          trial  by  jury  as declared  by  the  Seventh  Amendment to  the



          Constitution or as given by a  statute of the United States shall



          be preserved to the  parties inviolate."  Any party  can preserve
                                                    ___



          its right to a jury by  making a timely demand for a  jury trial,



          Fed. R. Civ. P. 38(b), and once the demand is  made, both parties
                                                               ____



          must consent before  it can be withdrawn, Fed.  R. Civ. P. 38(d),



          39(a).  See  Dell'Orfano v.  Romano, 962 F.2d  199, 202 (2d  Cir.
                  ___  ___________     ______


____________________



          28 U.S.C.   1333(1).



                                         -5-



1992) ("A plaintiff  is entitled  to rely on  a defendant's  jury



          demand to preserve his own right to a jury trial...."). 



                    When  claims  which could  be  characterized  as either



          admiralty  or common law claims  are raised in  a case, a party's



          right to a jury trial becomes more complex.   Cf. Fed. R. Civ. P.
                                                        ___



          38(e) (providing  that "[t]hese rules  shall not be  construed to



          create a right to trial by jury of the issues in an  admiralty or



          maritime claim  within the  meaning of Rule  9(h)").   Generally,



          there  is no  constitutional right  to jury  trial for  admiralty



          claims.  See  Fitzgerald v. United States Lines Co., 374 U.S. 16,
                   ___  __________    _______________________



          19 (1963).  Congress has, however, created a statutory right to a



          jury trial for certain admiralty claims.  See, e.g., 28 U.S.C.   
                                                    ___  ____



          1873  (1994) (Great Lakes Act); 46 U.S.C.App.   688 (1988) (Jones



          Act).   In addition, the  Supreme Court has  held that plaintiffs



          who  assert both  a Jones  Act claim,  which creates  a statutory



          right  to a jury trial on the law  side of the court, and closely



          related admiralty claims for unseaworthiness  and maintenance and



          cure are  entitled to  a  jury trial  on  both kinds  of  claims.
                                                    ____



          Fitzgerald, 374 U.S. at 21 (holding  that "only one trier of fact
          __________



          should be  used for the trial of  what is essentially one lawsuit



          to  settle  one  claim  split conceptually  into  separate  parts



          because  of  historical  developments"); see  also  Charles  Alan
                                                   _________



          Wright & Arthur  R. Miller,  9 Federal Practice  and Procedure   
                                         _______________________________



          2315 (1995). 



                    When a claim  sounds both  in admiralty  and in  common



          law,  a plaintiff can preserve  his right to  a jury by following


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certain  procedures.    Pursuant  to  the  so-called  "saving  to



          suitors" clause, 28 U.S.C.   1333(1), the federal district courts



          have  "original  jurisdiction, exclusive  of  the  courts of  the



          states," over admiralty  and maritime cases, saving to suitors in



          all  cases  all  other  remedies  to  which  they  are  otherwise



          entitled.   Lewis v. United  States, 812 F. Supp.  620, 626 (E.D.
                      _____    ______________



          Va.  1993).    Interpreting the  "saving  to  suitors" clause  to



          reserve to  plaintiffs the right to  a common law remedy  "in all



          cases where the common law is competent to give it,"  the Supreme



          Court held that  "the common law is as competent as the admiralty



          to  give a  remedy in  all cases  where the  suit is  in personam



          against the owner of  the property."   Leon v. Galceron, 78  U.S.
                                                 ____    ________



          (11 Wall.) 185, 191  (1870).  This statute permits  plaintiffs to



          retain a right  to a  jury for "saving-clause  claims"2 --  those



          admiralty claims  that could have  also been tried  to a jury  at



          common law  -- by either bringing  suit in state court  or in the



          general jurisdiction of federal court.  See generally Odeco Oil &
                                                  ___ _________ ___________



          Gas Co., Drilling  Division v.  Bonnette, 74 F.3d  671, 674  (5th
          ___________________________     ________



          Cir. 1996) ("The  saving to suitors  clause evinces a  preference



          for jury  trials and  common  law remedies  in the  forum of  the



          claimant's choice.").   Consequently, a plaintiff's saving-clause



          decision determines whether the judge or a jury will act as fact-



          finder for saving-clause claims.  

                              
          ____________________



          2   See Barbara  Bennett Woodhouse,  Comment, Powell  v. Offshore
              ___

          Navigation,  Inc.:   Jurisdiction Over  Admiralty Claims  and the
                               ____________________________________________

          Right  to  Trial by  Jury,  82 Colum.  L.  Rev.  784, 787  (1982)
          _________________________

          (describing  common  law claims  also  sounding  in admiralty  as

          "saving-clause claims").



                                         -7-



Where claims are cognizable either in admiralty or in a



          nonmaritime ground of federal  jurisdiction, Rule 9(h) sets forth



          the procedure  by  which  a  plaintiff indicates  his  choice  to



          proceed in admiralty  for a saving-clause claim in federal court.



          Fed.  R.  Civ.  P.  9  advisory  committee  note;  see  generally
                                                             ______________



          Woodhouse,  supra, at  79 (noting  that after the  unification of
                      _____



          admiralty and civil procedure  rules in 1966, the  "saving clause



          option to choose whether to proceed in admiralty or diversity has



          been  retained in Rule 9(h), which permits the suitor to identify



          his  claim as  an  admiralty claim  in  order to  have  admiralty



          procedures applied").  Rule 9(h) provides in pertinent part:



                    A pleading or count setting forth a claim for

                    relief  within  the  admiralty  and  maritime

                    jurisdiction   that   is   also  within   the

                    jurisdiction  of the  district court  on some

                    other   ground   may   contain  a   statement

                    identifying  the claim  as  an  admiralty  or

                    maritime  claim  for  the purposes  of  Rules

                    14(c), 38(e), and the Supplemental  Rules for

                    Certain Admiralty and Maritime Claims.



          Fed. R. Civ. P. 9(h).  



                    "The impact of the 9(h) election is that all claims are



          tried  by the court, rather than the  jury."  Insurance Co. of N.
                                                        ___________________



          Am. v. Virgilio,  574 F. Supp.  48, 50 (S.D.  Cal. 1983)  (citing
          ____   ________



          Charles  Alan Wright & Arthur  R. Miller, 9  Federal Practice and
                                                       ____________________



          Procedure   2315  at 76 (1971); Arkwright-Boston  Mfrs. Mut. Ins.
          _________                       _________________________________



          Co. v. Bauer   Dredging, 74 F.R.D. 461, 461 (S.D. Tex. 1977)).  A
          ___    ________________



          waiver of the right to a jury is implicit in this election.   See
                                                                        ___



          Koch Fuels, Inc.  v. Cargo of  13,000 Barrels of  No. 2 Oil,  704
          __________________   ______________________________________



          F.2d 1038,  1041 (8th  Cir. 1983) ("Generally,  such an  election


-8-



precludes a  jury trial."); Romero v. Bethlehem  Steel Corp., 515
                                      ______    ______________________



          F.2d 1249,  1252-53 (5th Cir. 1975)  (denying plaintiff's request



          for  a jury trial because  complaint alleged that  the "basis for



          jurisdiction is the admiralty and maritime jurisdiction"); McCann
                                                                     ______



          v. Falgout  Boat Co., 44  F.R.D. 34,  42 (S.D. Tex.  1968) ("Rule
             _________________



          38(e)  ...  preserves  for   admiralty  and  maritime  cases  the



          plaintiff'sright toforecloseademandbydefendantforjurytrial....").



                    When  the  case  itself  is  hybrid  --  that  is,  the



          complaint  is  designated  as   in  admiralty  and  a  compulsory



          counterclaim  contains saving-clause  claims  -- as  the case  is



          here, matters become even more  complicated.  See generally Billy
                                                        _____________



          Coe  Dyer, Note,  The Jury  on  the Quarterdeck:   The  Effect of
                            _______________________________________________



          Pleading Admiralty Jurisdiction  When a Proceeding  Turns Hybrid,
          ________________________________________________________________



          63 Tex. L. Rev. 533, 537 (1984) (analyzing  the problem of hybrid



          actions).   In  hybrid  cases, the  question  arises whether  the



          plaintiff's 9(h)  designation should  control the  procedures for



          the  entire  case   or  whether  the  court  should   attempt  to



          accommodate the counterclaimant's Seventh Amendment right.



                    There  is a  split of  authority on  this issue.   Some



          courts  have  concluded that  a  plaintiff's  Rule 9(h)  election



          characterizes  the  whole  action   regardless  of  any   Seventh



          Amendment right the counterclaimant may have had to a jury trial.



          See, e.g.,  Virgilio, 574 F. Supp. at 51 (denying jury trial on a
          ___  ____   ________



          compulsory counterclaim  filed by  an insured  in  response to  a



          declaratory judgment action by an insurance  company); Arkwright-
                                                                 __________



          Boston  Mfrs. Mut. Ins. Co., 74 F.R.D. at 461 (same); Camrex Ltd.
          ___________________________                           ___________


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v.  Camrex Reliance Paint Co., Inc., 90 F.R.D. 313, 317 (E.D.N.Y.
              _______________________________



          1981) ("The  right to a jury  trial in actions at  common law ...



          provides no basis for claiming  a jury trial with respect to  the



          issues in  an  admiralty  or maritime  claim  so  designated  (as



          plaintiff has done) under Rule 9(h)....").



                    Other courts  have allowed a separate jury trial on the



          common law claims where  "both parties using different  triers of



          fact,   could  prevail   on  their   respective  claims   without



          prejudicing the other party or arriving at inconsistent results."



          Koch  Fuels, Inc.,  704 F.2d  at 1042   (citing  Fed. R.  Civ. P.
          _________________



          42(b)); accord  Alaska Barite Co.  v. Freighters Inc.,  54 F.R.D.
                  ______  _________________     _______________



          192,  194 (N.D. Cal. 1972)  (admiralty claim tried  to bench with



          separate trial for  permissive counterclaim).  But see Royal Ins.
                                                         _______ __________



          Co. of  Am. v. Hansen, 125  F.R.D. 5, 9 (D.  Mass. 1988) (denying
          ___________    ______



          counterclaimant's request  for a  jury trial because  of relation



          between  counterclaims and  admiralty  claim  and possibility  of



          inconsistent results).  For example, in Koch Fuels, Inc. v. Cargo
                                                  ________________    _____



          of 13,000 Barrels of No.  2 Oil, the Eighth Circuit  affirmed the
          _______________________________



          district  court's grant of a  separate jury trial  for the common



          law counterclaim and a bench  trial for the plaintiff's admiralty



          claim.  704  F.2d at 1041-42.   The court noted  that "[a]lthough



          there is no  constitutional right  to a jury  trial in  admiralty



          cases,"  the  "trial court  must,  whenever  possible, strive  to



          preserve  the right  to a  trial by  jury."   Id.  (citing Beacon
                                                        ___          ______



          Theaters,  Inc.  v. Westover,  359 U.S.  500,  510 (1959)).   The
          _______________     ________



          Eighth Circuit affirmed  the district court's grant of  two fact-


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finders because  the parties'  claims were easily  separated, one



          involving wrongful  conversion and the other  breach of contract.



          Id. at 1042.
          ___



                    The  Court  declines  to  resolve  the difficult  issue



          raised by  the hybrid nature of the suit because this case can be



          resolved on a narrower  ground.  Assuming without deciding  under



          the  Koch Fuels  rationale  that Concordia's  designation of  the
               __________



          action  as arising in  admiralty did not  necessarily control the



          entire  action, we  nonetheless  conclude that  Panek waived  his



          right  to  a  jury  by  making a  9(h)  election  to  proceed "In



          Admiralty"  without   making  a   demand  for   a  jury   in  the



          counterclaim.



                    To begin,  Rule 9(h)  applied  to Panek's  counterclaim



          because  his claims for  breach of  contract and  negligence were



          saving-clause claims that could  have been brought either in  the



          district  court's  supplemental  jurisdiction  or  in  admiralty.



          Panek's  contract  with Concordia  was  sufficiently  maritime in



          nature   to   fall   within   the   district  court's   admiralty



          jurisdiction.  See Kossick v. United Fruit Co., 365 U.S. 731, 735
                         ___ _______    ________________



          (1961)  (marine  insurance  contracts);  Carroll   v.  Protection
                                                   _______       __________



          Maritime Ins. Co.,  Ltd., 512 F.2d 4, 6 (1st Cir. 1975) (contract
          ________________________



          between seamen and  vessel owner); T.N.T.  Marine Serv., Inc.  v.
                                             __________________________



          Weaver Shipyards &  Dry Docks,  Inc., 702 F.2d  585, 587-88  (5th
          ____________________________________



          Cir.) (contract  for repairs at shipyard), cert. denied, 464 U.S.
                                                     ____________



          847  (1983).    Panek's  negligence claim  that  Concordia's  lax



          security  caused  the fire  or that  its  failure to  prevent the


-11-



PROWLER from sinking  is also maritime in nature.   See Butler v.
                                                              ___ ______



          American  Trawler  Co., Inc.,  887 F.2d  20,  21 (1st  Cir. 1989)
          ____________________________



          ("[T]here  is admiralty  jurisdiction  if the  tort  at issue  1)



          occurred  on navigable waters and  2) bore a significant relation



          to  traditional maritime  activities."); Executive  Jet Aviation,
                                                   ________________________



          Inc. v. City of Cleveland, 409 U.S. 249, 268 (1972) (holding that
          ____    _________________



          for the purposes of  admiralty jurisdiction, a tort  occurs where



          the  negligence  "takes  effect,"  not where  the  negligent  act



          occurred).  Consequently, the district court could have exercised



          jurisdiction    over   the   counterclaims   either   under   its



          "supplemental  jurisdiction" pursuant  to  28 U.S.C.    1367,  or



          admiralty, 28 U.S.C.   1333, at least with respect to the  breach



          of contract and negligence claims.



                    Having concluded  that Rule  9(h) could be  invoked, we



          next  consider whether  Panek  in fact  made  the requisite  9(h)



          "identifying statement" in his  counterclaim, thereby waiving his



          right to a jury trial.  Insurance Co.  of N. Am. v. Virgilio, 574
                                  ________________________    ________



          F. Supp. 48, 51 (S.D. Cal. 1983) ("By invoking 9(h) the plaintiff



          may  preclude a  right  to a  jury  trial which  might  otherwise



          exist.").  We conclude  that he did, although the  election could



          have  been more artfully made.3  While the preferred technique is



          to  invoke expressly Rule 9(h),  Charles Alan Wright  & Arthur R.



          Miller,  5 Federal Practice and  Procedure   1313  at 719 (1990),
                     _______________________________



                              
          ____________________



          3   Cf. Fed. R.  Civ. P.  Form 2(d)  ("If the  pleader wishes  to
              ___

          invoke the distinctively maritime  procedures referred to in Rule

          9(h), add the following or its substantial equivalent: This is an

          admiralty or maritime claim within the meaning of Rule 9(h)."). 



                                         -12-



the words  "In Admiralty"  in  the caption  with no  accompanying



          demand for a  jury trial,  were sufficient to  constitute a  9(h)



          election  for admiralty  procedures.   See,  e.g., Teal  v. Eagle
                                                 ___   ____  ____     _____



          Fleet,  Inc., 933 F.2d 341,  345 (5th Cir.  1991) (holding that a
          ____________



          party need  not make a  specific reference  to Rule 9(h)  to fall



          under admiralty jurisdiction).



                    One important  factor in determining whether a claimant



          has elected to proceed in admiralty is whether he demanded a jury



          trial.  Lewis  v. United States, 812 F. Supp.  620, 627 (E.D. Va.
                  _____     _____________



          1993) (holding that a demand for a trial by jury "is inconsistent



          with an intent to  proceed in admiralty"); cf. Royal Ins.  Co. of
                                                     ___ __________________



          Am. v. Hansen, 125 F.R.D. 5, 8 (D. Mass. 1988) ("Where a claim is
          ___    ______



          made  in accordance with Rule 9(h), the existence of diversity as



          an alternative  basis of jurisdiction will  not entitle plaintiff



          to a jury trial.");  Banks v. Hanover Steamship Corp.,  43 F.R.D.
                               _____    _______________________



          374,  376-77 (D. Md. 1967) (holding that a complaint that asserts



          both admiralty jurisdiction and  diversity jurisdiction is not an



          adequate 9(h) designation to trigger admiralty procedures). 



                    Panek  argues  that the  words  "In  Admiralty" in  the



          caption  of the  counterclaim  were merely  a  label and  not  an



          "identifying statement."  However,  courts have held that similar



          titles  in the captions of  complaints were sufficient to trigger



          the identification mechanism in Fed. R. Civ. P. 9(h).  See, e.g.,
                                                                 ___  ____



          Teal, 933 F.2d at  345.  Moreover, Panek's argument that his jury
          ____



          trial right  was preserved  by Concordia's subsequent  jury trial



          demand  in its  answer to  the  counterclaim is  unavailing here.


-13-



While in a non-admiralty case any party may assert a demand for a
                                        ___



          jury trial and both parties must consent to the withdrawal of the
                         ____



          demand,  in an  admiralty  case, a  9(h)  election for  admiralty



          cannot be undone by  the opposing party's jury demand.   See Fed.
                                                                   ___



          R. Civ.  P. 9(h); Craig v.  Atlantic Richfield Co., 19  F.3d 472,
                            _____     ______________________



          476-77 (9th Cir.), cert.  denied, 115 S. Ct. 203  (1994) (holding
                             _____________



          that plaintiff was  not entitled  to rely on  a defendant's  jury



          demand where  the defendant  had neither a  constitutional nor  a



          statutory right to make  such a demand); Cateora v.  British Atl.
                                                   _______     ____________



          Assurance, Ltd., 282 F. Supp. 167, 169 (S.D. Tex. 1968) (striking
          _______________



          defendant's jury demand because  plaintiff had made 9(h) election



          in favor of admiralty).  In short, Concordia's jury demand was  a



          nullity and Panek could not rely on it.



                    We hold that Panek made a 9(h)  election by designating



          his claim as "in admiralty" with no jury demand, assuming without



          deciding that  he retained  his right  to a  jury even  after the



          plaintiff had made its Rule 9(h) designation.4



                                     B.  Damages
                                     B.  Damages



                    Panek claims that  the trial judge  erred in not  using



          the  advisory jury's  determination  of damages  on the  contract



          count  of  the  counterclaims.    Specifically,  Panek  seeks  to



          reinstate  the jury award of  $16,000 to reflect  the evidence in



          the record that the tuna tower (worth $10,000) and the navigation

                              
          ____________________



          4  Because we decide  the case on this ground we need not address

          Concordia's  further argument that  the district court's judgment

          should be affirmed because  there was insufficient evidence under

          either a breach  of contract  or negligence theory  to find  that

          Concordia's breach of duty caused the fire.



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and  fishing  equipment  (worth  $6,000) were  destroyed  in  the



          explosion.   However,  the  district court  found that  Concordia



          breached its duty to  Panek only after the fire  was extinguished



          and after this property was burned.  The district court carefully



          assessed the damages proximately  caused by Concordia's breach of



          duty by failing to take reasonable  care of the hull while it was



          still afloat and by permitting the PROWLER to sink.  The district



          court's factual  determinations of  damage are reviewed  only for



          clear error, see Windsor  Mount Joy Mut. Ins. Co.  v. Giragosian,
                       ___ ________________________________     __________



          57 F.3d 50,  53 (1st Cir. 1995), and Panek does not come close to



          meeting this standard.   We hold that the district court  did not



          clearly err in its damages findings.



                    AFFIRMED.
                    AFFIRMED.
                    ________


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