On Dec. 3, 2015, Capt. David "Heavy D" Sutherland died in the water after his disabled slime-eel boat, the Orin C, sank while under tow by the Coast Guard back into Gloucester Harbor.
Now, an ongoing federal lawsuit filed by two surviving Orin C crew members and Sutherland's estate has erupted with accusations of witness tampering involving Mayor Sefatia Romeo Theken and fisherman Philip Powell of Swampscott — the good Samaritan who is a co-defendant in the case and whose vessel F/V Foxy Lady was the first to come to the aid of the Orin C.
The witness is Gloucester Harbormaster T.J. Ciarametaro, who through his Five Fathoms Consulting firm, is retained as an expert witness by plaintiffs' attorney, Joseph M. Orlando Jr. of the Gloucester firm Orlando & Associates.
Orlando's motion also accuses Gloucester lobsterman Arthur "Sooky" Sawyer, the current president of the Massachusetts Lobstermen's Association, of contributing to a pressure campaign against Ciarametaro, a Coast Guard veteran.
The lawsuit, filed on behalf of the Sutherland estate and crewmen Travis Lane and Richard Palmer, alleges negligence by the United States of America, Powell and his vessel, F/V Foxy Lady, in their efforts to help save the Orin C and her crew.
Good Samaritan doctrine
On Wednesday, U.S. District Court Judge Patti B. Saris is set to hear arguments on Orlando's motion for sanctions against Powell and the Foxy Lady for the alleged tampering.
The accusations of witness tampering, first reported by Massachusetts Lawyers Weekly, have further inflamed what already was a highly contentious case, both between the respective attorneys — who have sniped repeatedly at each other in filings — and along the Gloucester waterfront.
Many fishermen feel Powell is being victimized for trying to do the right thing — adhering to the ages-old sea policy of being a good Samaritan in aid to other mariners. Others question the ethics of the city harbormaster being part of the case.
Ciarametaro, according to Orlando's motion, was told by Gloucester General Counsel Charles J. Payson and the State Ethics Commission that his testimony in the case would not be a conflict of interest.
Romeo Theken on Tuesday declined comment. In her only public statement to date, she referenced the sanctity of the good Samaritan doctrine.
"The brave men and women who operate Gloucester's fishing fleet have always looked out for each other and they always will," the mayor stated. "We in government should do everything we can for their safety, including helping them to keep each other safe. We should never do anything that might cause them to hesitate in coming to the aid of a stricken vessel."
In his report prepared for plaintiffs, Ciarametaro criticizes Powell for initiating a tow.
"It is apparent to me that the towing of the F/V Orin C with the improper towline and equipment did irreversible damage to the wooden-hulled F/V Orin C, and I believe that the damage sustained to the F/V Orin C from the improper towline was a substantial contributor to the eventual sinking (on Dec. 3, 2015)," Ciarametaro wrote in his report.
The Coast Guard and the National Transportation Safety Board each issued final incident reports on the sinking of the Orin C. Neither assigned negligence or culpability for Sutherland's death to Powell or the Foxy Lady.
The Foxy Lady, with Powell at the helm, was the first vessel to reach the Orin C on Dec. 3, 2015. The fishing boat, which traveled 16 miles to reach the disabled slime-eel vessel, initiated a tow that grew more problematic — the tow line snapped four times — as the seas and weather got rougher.
Powell and the Foxy Lady ultimately relinquished the tow to the Coast Guard. The Coast Guard was towing the Orin C when the fishing vessel began to flood and Sutherland and his crew, after donning survival gear, went into the water.
The Coast Guard successfully retrieved Palmer and Lane from the frigid and running seas. Sutherland was unresponsive when the Coast Guard got to him in the water. He never regained consciousness and later died despite continued emergency medical efforts.
In his motion, Orlando accuses Powell and the Foxy Lady — under maritime law, vessels may assume the role of defendant — of trying to engage Romeo Theken and members of her administration to pressure Ciarametaro into withdrawing from the case or be fired from his city job.
Orlando, in his motion, said that on April 7 he "became aware that the mayor of Gloucester, along with her chief administrative officer and city solicitor, have threatened Mr. Ciarametaro with termination should he continue to act as plaintiffs' expert in this case."
Ciarametaro referred questions to his attorney, Liam T. O'Connell.
"While we all have our right to voice opinions, we don't have the right to intervene and intimidate witnesses," O'Connell said in a text. The court gets to decide what is right and wrong, not the defendant's insurer or the mayor of Gloucester."
In his affidavit, Ciarametaro stated Romeo Theken left him a threatening voice memo and said local fishermen complained to her about Ciarametaro's involvement in the lawsuit.
Ciarametaro said Romeo Theken, who hired him as harbormaster in 2016, called him "a fraud" and warned that his city position was at stake if he remained part of the plaintiffs' case. Ciarametaro said that he no longer has the voice memo after it automatically erased itself.
"It is clear that the city administration is making these threats to Mr. Ciarametaro at Mr. Powell's request," Orlando wrote in an April 9 memorandum supporting his motion. "What has occurred here is a crime perpetrated upon Mr. Ciarametaro, the plaintiffs and most importantly, the court. Only Judge Saris has any discretion over whether Mr. Ciarametaro testifies in this case."
In an affidavit, Joseph Orlando, the principle partner at Orlando & Associates and Orlando Jr.'s father, said Romeo Theken contacted him soon after his firm was retained.
"In that phone call," the senior Orlando said in his affidavit," she urged me not to bring a claim against the F/V Foxy Lady and/or Philip Powell."
Kevin Gillis, attorney for Powell, fired back.
"This assertion, of course, is sheer nonsense," Kevin F. Gillis wrote in a motion. "Would that we all had the clout to ring up City Hall and orchestrate such Machiavellian power."
Powell, he wrote, never communicated "either directly or indirectly" with Romeo Theken or anyone else in the administration.
"He has never attempted to get Ciarametaro fired from his job as harbormaster," Gillis wrote. "Moreover, he has no knowledge about attorney Orlando's father's claims that the mayor called Orlando senior after his firm was retained by plaintiffs to urge him to refrain from making claims against Powell or his boat."
Contact Sean Horgan at 978-675-2714, or firstname.lastname@example.org. Follow him on Twitter at @SeanGDT