By David Kibbe
The Standard-Times

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BOSTON – A federal appeals court yesterday upheld the U.S. District Court ruling that the Cape Fear was overloaded with clam cages in bad weather when it sank off Cuttyhunk in 1999, taking the lives of two local fishermen.

The decision by the U.S. Court of Appeals for the 1st Circuit that the vessel was not seaworthy clears the way for a civil trial to determine damages against the owner of the vessel, Warren Alexander, of Warren, R.I.

The families of the two fishermen, Paul Martin, 35, of Fairhaven, and Steven Reeves, 28, of New Bedford, have filed a $12 million lawsuit against Mr. Alexander. The appeals court rejected Mr. Alexander’s attempt to limit damages just to the value of the Cape Fear.

The trial for damages has yet to be scheduled in U.S. District Court, but it will probably take place in the next six months, said Carolyn Latti of Boston, a lawyer for the families. The damages will be based on pain and suffering and how much financial support the two men would have provided to their families.

U.S. District Court Judge Robert E. Keeton found the Cape Fear was not seaworthy in January, but the damages trial was delayed pending the outcome of the appeal.

“I think the families are very relieved,” Ms. Latti said.

She said the court decision confirmed “what they always felt and believed all along – the vessel was unseaworthy.”

Mr. Alexander and his lawyer, Thomas Clinton, could not be reached for comment. During the trial, Mr. Alexander’s lawyers argued that the Cape Fear had passed insurance and safety inspections and the crew did not have any complaints about the 112-foot ocean quahog boat.

Mr. Alexander maintained the vessel went down because the crew left a hatch open and the boat downflooded.

Deckhand Joseph Lemieux of Fairhaven testified that the cover would not close because of a problem with a rope that pulled the hatch into place. He said the rope had broken on previous occasions, and knots to repair it interfered with the pulley system.

Donna Reed, Mr. Martin’s sister, called the appeals court ruling “good news.”

“We’ll be glad to have it over, but we don’t want to see (Mr. Alexander) get away with it,” she said.

The Cape Fear was steaming home to New Bedford in 6- to 8-foot seas and 20- to 30-knot wind when it took on water from the stern and sank on Jan. 8, 1999.

The vessel’s stability manual called for a maximum of 120 clam cages, but it was carrying 130 or 132, according to testimony at the liability trial that took place in U.S. District Court in the summer and fall of 2001.

In his 125-page decision, Judge Keeton wrote that the ship was “substantially overloaded with clams in cages, a practice that had become common on the Cape Fear. A significant portion of the cages of the calms were stacked on the deck so as to place the center of gravity of the loaded vessel higher than was safe.”

Judge Keeton found several other factors “contributed to the likelihood of disaster,” including the partially open hatch cover and problems with safety gear aboard the vessel.

Three of the five crew members, Mr. Lemieux and skipper Steven Novack and mate James Haley Jr., both of Virginia, were rescued by another ocean quahogger, the Misty Dawn.

Mr. Martin’s body was found off Goosebury Neck in Westport the next day. Mr. Reeves was lost at sea.

Mr. Lemieux was the only crew member to testify at the trial. He said he heard Mr. Reeves yelling for help for 10 minutes, but could not find him.

A Coast Guard investigation concluded that the Cape Fear sank as a result of down-flooding through clam tank hatch covers that were not weathertight. The Coast Guard said the vessel was not being operated in accordance with its safety book, and the crew did not undergo monthly safety drills, among other problems.

The Coast Guard report said it was inconclusive whether an inoperative zipper made it impossible for the men to don survival suits. Mr. Martin’s survival suit was on, but was not zipped all the way up.

Ms. Latti said the appeals court decision gave the families a measure of justice. “It’s also one step toward closure,” she said.