Vessel owner countersues auction

MIKE SPRINGER/Staff file photoThe trawler Capt. Joe tied up last month at the Jodrey State Fish Pier in Gloucester. Longtime Gloucester fisherman Giuseppe "Joe" DiMaio, the vessel's owner, is countersuing the owner of the Cape Ann Seafood Exchange in a dispute over fish prices and loans. 

And this is why they call it a counterclaim.

Longtime Gloucester fisherman Giuseppe "Joe" DiMaio has responded to the federal lawsuit filed against him by Kristian Kristensen of the Cape Ann Seafood Exchange, refuting many of the details of Kristensen's initial action and stating the rift between the two business associates originated with a dispute over fish prices.

On Jan. 19, Kristensen sued DiMaio and the ownership corporations of his four fishing boats in U.S. District Court in Boston, alleging DiMaio has failed to pay the approximately $710,000 balance remaining on two personal and corporate loans from Kristensen and his related businesses.

DiMaio, through corporations he controls, owns four Gloucester-ported groundfish vessels — the FV Capt. Joe, the FV Lucy, the FV Tyler and the FV Orion.

Kristensen, the owner of the seafood auction and Zeus Packing on Rogers Street, said in his lawsuit he lost more than $400,000 in auction fees and a significant supplier of fish when DiMaio last summer ended a five-year agreement to exclusively land his fish and dock his boats at the auction in return for a $175,000 loan from Kristensen.

Kristensen or his businesses, according to the initial lawsuit, loaned DiMaio and Tyler Corp. (which owns the FV Tyler) about $820,000 since 2012 under the original provisions of the initial $175,000 loan — including a $75,000 personal loan from Kristensen to DiMaio that remains fully unpaid. Kristensen's suit alleges that in July, DiMaio "without notice or warning" walked away from the agreement and started selling his fish and docking his boats elsewhere.

DiMaio's counterclaim in U.S. District Court offers a different narrative.

It claims Kristensen and DiMaio repeatedly argued over fish prices and that Kristensen paid DiMaio's boats below-market value for fish while unilaterally altering the terms of the loans.

"Mr. DiMaio questioned why redfish, of which the Tyler was landing as much as 50,000 pounds per trip, was selling for $0.50 (per pound) elsewhere in Gloucester, but plaintiffs were only paying $0.18, which after unloading costs resulted in loss to the vessel, and crew, of as much as $20,000 per trip," the counterclaim stated. "Giuseppe DiMaio gave notice of his intent to offload elsewhere and his desire to see an accounting of monies claimed by (Kristensen) so that balances could be agreed on and a payment plan worked out."

The counterclaim details one incident in which Kristensen ordered the unnamed captain of the Orion off his property after an argument over Kristensen's pricing. The counterclaim states Kristensen followed the captain to a nearby restaurant and had him ejected from there, as well.

DiMaio said he then felt compelled to move the Tyler and Orion to another facility or lose the captain with 25 years of experience.

The counterclaim also contends Kristensen overstated and embellished the financial claims in his lawsuit, saying the amount DiMaio owes is closer to $350,000 instead of almost $710,000.

DiMaio also seeks a change of jurisdiction for the lawsuit. His counterclaim states the initial lawsuit "is primarily an action based on two personal loans extended to Giuseppe DiMaio and is not therefore an admiralty and maritime claim."

Stephen Ouellette, the attorney representing DiMaio, said the two sides continue to discuss a possible settlement.

"But I expect that at some point, some court will probably hear this case," Ouellette said.

The counterclaim also disputes the allegation that DiMaio docked all of his vessels at the auction, stating only the Tyler and the Lucy tied up there, "both with the understanding there would be no charge for dockage."

Kristensen's suit alleges DiMaio is in "a precarious financial situation, with substantial debt not only outstanding to (Kristensen), but to other creditors, as well."

DiMaio, in his counterclaim, states "his current financial condition is due in large part" to Kristensen's conduct.   

Contact Sean Horgan at 978-675-2714, or Follow him on Twitter at @SeanGDT.

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