PR Marine Management v. Masso

Opinion

USCA1 Opinion

May 30, 1995

                                [NOT FOR PUBLICATION]



                            United States Court of Appeals

                                For the First Circuit

                                 ____________________



        No. 94-2289



                         PUERTO RICO MARINE MANAGEMENT, INC.,



                                 Plaintiff, Appellee,



                                          v.



                               EMPRESAS MASSO, ET AL.,



                               Defendants, Appellants.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
                                        _____________

                            Coffin, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
                                        _____________



                                 ____________________



            Jose A. Hernandez  Mayoral with whom Rafael Hernandez Mayoral  was
            __________________________           ________________________

        on brief for appellants.

            Carlos  J. Quilichini with  whom Juan  Carlos Gorbea  was on brief
            _____________________            ___________________

        for appellee.


____________________


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COFFIN,  Senior Circuit  Judge.   This is  an appeal  from a
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          judgment, following a bench trial, for plaintiff vessel operator,



          Puerto Rico  Marine Management (PRMMI),  in its  suit to  collect



          freight charges for a deficit of cargo placed under a Time Volume



          Agreement (TVA) by defendants  (collectively, Masso).1  Under the



          TVA,  covering the  period from  May 1990  to August  1992, Masso



          agreed  to  ship  a  minimum  of  500  "trailers"  annually  from



          continental  United States to Puerto Rico.  The complaint alleged



          that  during this  period  only 410  shipments  were booked;  the



          deficit was 590.  Applying the appropriate tariff of "$250.00 per



          container/trailer," the total claimed deficit was $147,500.



               Masso's  response  to  the  complaint  was  the  affirmative



          defense that PRMMI  breached the  TVA.  In  the pre-trial  order,



          submitted  to  the  court  by both  parties,  Masso  outlined its



          defense: the TVA (through  its use of ther judges  are tempted to



          resort  to  "preachy"  opinions, issuing  admonitions  about  the



          future which they and their courts are unlikely to follow up with



          vigor.   An example is  the unhappiness of  appellate courts with



          some of the  closing arguments  to the jury  made by  overzealous



          prosecutors.  In an  otherwise error-free case it is  tempting to



          shake  a judicial  finger and  say, "We  shall not in  the future



          permit  such conduct."    But the  next  case comes  along,  with



          overwhelming evidence  of guilt and in the main a fair trial.  An



          appellate  court will be reluctant to reverse and  will therefore


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               1   Empresas  Masso, Inc.,  Bloques Masso,  Inc., Ferreteria

          Masso, Inc., Caguas Lumber Yard, Inc., Masso Enterprises, Inc.



look to see  if objection was made to  the offending argument, if



          the judge made an  immediate curative instruction, and if  in the



          context  of the entire  case the remarks were  likely to have had



          any effect.  One learns from long and frustrating experience that



          one reversal is worth a hundred lectures.



               In such  matters as  these, affecting  the  manner in  which



          cases  are tried and the rules and standards governing judges and



          counsel,  an appellate court  may on occasion  rest its decision,



          not  on a constitution, statue  or regulation, or  even upon case



          precedents,  but  upon its  own  supervisory  authority over  the



          agencies and courts within its jurisdiction.  It is a power to be



          used  sparingly, but does allow  fine tuning not  confined to the



          precise issues  raised by a particular  case.  When a  panel of a



          federal court decides to take  this route, it usually  circulates



          its proposed  rule to all  members of the  court for comment  and



          agreement. It is understandable that an  attorney in an appellate



          court is  so immersed in  her case  that her  attention has  been



          rivetted on winning  a victory.  "Victory"  is usually translated



          into the simple  alternatives: affirmance or  reversal.  But  the



          court itself must confront a  number of collateral choices having



          to do with the kind, form, finality, secondary  consequences, and



          timing  of  decision.   Some  of these  choices will  be  seen as



          immensely  important to the  litigants and  their counsel.   Some



          chiefly concern the internal  workings of the court.  But all are



          worth some thought on the part of counsel . . . in order to be of



          help both to themselves and the court.


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2.   Unfinished business.    Before a  conference ends,  the
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          court must  reflect on whether decision is the next step.  It may



          be that, before a novel approach is taken, supplemental memoranda



          should  be requested.  Or  perhaps at oral  argument they already



          have  been.  Or it  may be that, at  oral argument, the court has



          suggested that the parties attempt to settle the case,  or that a



          compromise resolution be  explored.  And  sometimes, when a  case



          involving the same issue is pending before the Supreme Court, the



          court  will simply  defer its  decision until  The Supreme  Court



          acts.   



               3.   Disposition  choices.   The  two  options for  a  final
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          decision are, of course, to affirm or reverse.  An added subtlety



          is a decision whether  or not to have  the mandate (the  document



          that  evidences the fact that  it the decision  is now effective)



          issue  immediately or  to  allow some  time  for a  petition  for



          certiorari (i.e., a request that the case be accepted for review)
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          to be presented to the Supreme Court of the United States.



               Decisions that are somewhat less  than final are those which



          remand  the case to the trial court.   There are many variants: a



          remand  with  instructions  only  to  "institute  proceedings  in



          accordance  with   this  opinion;"     a  remand   with  specific



          instructions   (e.g.,  in a  successful habeas  corpus  appeal, a



          remand to the federal district  court with instructions to  grant



          the  prisoner's freedom  unless the  state initiates a  new trial



          within ninety days);  a remand for  clarification of the  court's



          reasoning,  or  for essential  fact  finding;  a  remand with  or


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without a requirement to open the record for additional evidence;



          and  a  remand  to   a  different  judge.    Each  one  of  these



          possibilities could be fraught  with significance for a litigant;



          an  advocate would  do well  to anticipate  these choices  and be



          prepared to give advice to the court.



               Then  there  are critical  choices as  to  timing.   A basic



          question is  whether a new rule  or an extension  of existing law



          should be applicable prospectively or retrospectively.  But there



          are  timing questions  relating to  the issuance  of the  instant



          decision.   Sometimes the  panel (if  it is  a  federal court  of



          appeals)  knows that  one of  the issues  is being  considered by



          another panel in another  case; some checking with that  panel is



          indicated.    The resry,  and conceded  that  a number  of lumber



          shipments had  been  made for  Masso on  lo/lo vessels.   He  did



          testify that  "for a period of  time" in the latter  part of 1990



          there was no  ro/ro vessel  servicing Jacksonville,  and he  also



          stated  that at sales meetings, in trying to anticipate revenues,



          he would review contracts, including Masso's TVA.  Unable to give



          more specific  testimony because of the sanctions  imposed by the



          court,  he gave his conclusory opinion that PRMMI did not provide



          MASSO with enough ro/ro service to comply with the TVA.



               This evidence, even viewed most charitably for defendants on



          the  assumption that only  ro/ro's were contemplated  by the TVA,



          might support a finding  that to some extent  at some time  PRMMI



          did not  live up  to  its undertaking.   But  it  is clear  that,



          contrary to  defendants' initial contention, PRMMI  did not phase


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out its ro/ro fleet during the contract period.  Two of the three



          ro/ro  vessels remained in service for the  duration.  It is also



          clear  that, except for one  period of time  of uncertain length,



          there  was no  failure  to provide  ro/ro  service to  any  port.



          Generally, the  temporary unavailability of a  vessel resulted in



          biweekly rather than weekly service for a post.



               What is left completely  unclear is any basis  for assessing



          the magnitude of  any breach on PRMMI's part, to  determine if it



          was  sufficient to justify Masso's failure to book more than half



          of its promised shipments during the two-year period.  The record



          is  bereft of data as  to dates, ports,  cargoes, and substituted



          arrangements relating  to shipments frustrated because  of a lack



          of  proper equipment.  Moreover,  the record contains no evidence



          of  expressed   unhappiness,  oral   or  written,  over   PRMMI's



          performance;    acquiescence    and   waiver    remain   distinct



          possibilities.  On all  of this, we remind  ourselves, defendants



          bore  the  burden of  both going  forward  with evidence  and the



          ultimate burden of persuasion.



               On the record, therefore, we must  rule, as a matter of law,



          that  defendants  simply  failed  to  support  their  affirmative



          defense.



               AFFIRMED.


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