At the summary judgment stage, I limited the damages to the fair market value of the vessel plus interest. Sailor Inc. F/V v. City of Rockland, 324 F. Supp.2d 197, 202 (D. Me. 2004) ("Sailor I"). I did so based on a determination on the summary judgment record that the Sailor was a constructive total loss, meaning that the cost of repairing the vessel exceeded the vessel's fair market value prior to her sinking. Id.
The three cases Edgecomb cites in support of applying the total loss rule are readily distinguishable. In the first, Sailor Inc. F/V v. City of Rockland , 324 F. Supp. 2d 197 (D. Me. 2004), aff'd on other grounds , 428 F.3d 348 (1st Cir. 2005), the plaintiff brought claims for breach of contract and negligence and sought damages for lost profits and consequential damages. Id. at 199.
This doctrine "discourages an owner from repairing a vessel that can be replaced for less money than the repair would cost, and will not permit an owner to recover lost profits when he or she should have expeditiously purchased a substitute vessel and continued the vessel's profit making activities." Sailor Inc. F/V v. City of Rockland, 324 F. Supp. 2d 197, 200 (D. Me. 2004). The constructive loss doctrine does not apply to these facts.
"It is settled that `[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.'" Torres v. E.I. Dupont de Nemours Co., 219 F.3d 13, 20 (1st Cir. 2000) (citing Colantouni v. Alfred Calgagni Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994));Sailor Inc. F/V v. City of Rockland, 324 F.Supp.2d 197, 202 (D.Me. 2004). [A] party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.
"It is settled that `[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.'" Torres v. E.I. Dupont de Nemours Co., 219 F.3d 13, 20 (1st Cir. 2000) (citingColantuoni v. Alfred Calcagni Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994)); Sailor Inc. F/V v. City of Rockland, 324 F.Supp. 2d 197, 202 (D.Me. 2004). The timing of the recanting, i.e., in response to a summary judgment request has been held crucial as well as whether or not a satisfactory explanation for the change in testimony has been provided.
"It is settled that `[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.'" Torres v. E.I. Dupont de Nemours Co., 219 F.3d 13, 20 (1st Cir. 2000) (citingColantuoni v. Alfred Calcagni Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994)); Sailor Inc. F/V v. City of Rockland, 324 F.Supp.2d 197, 202 (D.Me. 2004). Whether or not a satisfactory explanation for the change in testimony has been provided is crucial to the determination.
"It is settled that `[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.'" Torres v. E.I. Dupont de Nemours Co., 219 F.3d 13, 20 (1st Cir. 2000) (citing Colantuoni v. Alfred Calcagni Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994)); Sailor Inc. F/V v. City of Rockland, 324 F.Supp.2d 197, 202 (D.Me. 2004). The timing of the recanting, i.e., in response to a summary judgment request has been held crucial as well as whether or not a satisfactory explanation for the change in testimony has been provided.
Id. at 5. The Colantuoni rule carries particular weight where the affidavit at issue is submitted only after the opposing party has submitted a motion for summary judgment and where the affiant was represented at his deposition by the same attorney who now represents him, Sailor, Inc. F/V v. City of Rockland, 324 F.Supp.2d 197, 202 (D. Me. 2004), as is the case here. To the extent that the plaintiff's affidavit does create a conflict with his deposition testimony, the affidavit makes no attempt to explain why the testimony has changed.
Id. at 5. The Colantuoni rule carries particular weight where the affidavit at issue is submitted only after the opposing party has submitted a motion for summary judgment and where the affiant was represented at his deposition by the same attorney who now represents him, Sailor, Inc. F/V v. City of Rockland, 324 F.Supp.2d 197, 202 (D. Me. 2004), as is the case here. To the extent that the plaintiff's affidavit does create a conflict with his deposition testimony, the affidavit makes no attempt to explain why the testimony has changed.