Samuels v. Hood Yacht

• Court: Court of Appeals for the First Circuit
• Decided: November 21, 1995
• Docket: 95-1391
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT



                                 ____________________



        No. 95-1391



                                ERNEST L. SAMUELS and

                                 RULING ANGEL, INC.,



                               Plaintiffs, Appellants,



                                          v.



                           HOOD YACHT SYSTEMS CORPORATION,



                                 Defendant, Appellee.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________



                                 ____________________



                                        Before



                                 Lynch, Circuit Judge,
                                        _____________



                     Aldrich and Campbell, Senior Circuit Judges.
                                           _____________________



                                 ____________________


Robert J. Murphy with whom Thomas E. Clinton and Clinton &  Muzyka
            ________________           _________________     _________________

        were on brief for appellants.

            Thomas  M.  Elcock  with whom  Richard  W.  Jensen  and  Morrison,
            __________________             ___________________       _________

        Mahoney & Miller were on brief for appellee.
        ________________



                                 ____________________



                                  November 21, 1995

                                 ____________________



ALDRICH,  Senior Circuit  Judge.    This  diversity
                                _____________________



            action  was brought in  the United States  District Court for



            the  District  of  Massachusetts  by  Ernest  L.  Samuels  of



            Ontario, Canada,  and Ruling Angel, Inc.  of Delaware, owners



            of  the sailing  yacht RULING  ANGEL, claiming  negligence by



            Hood  Yacht  Systems  Corp.   (Hood)  of  Rhode  Island,  the



            manufacturer of her mast.  The mast broke while the yacht was



            under  sail.1   The incident  occurred off  the coast  of St.



            Croix, Virgin Islands, with wind at 25-30 knots, and seas 6-8



            feet, which  the yacht's captain testified  was within normal



            Caribbean weather.  The mast broke in two, which her captain,



            testifying  to the  obvious, said  should not  have happened.



            However, at  the close of plaintiffs' case  the court granted



            Hood's motion for a directed verdict.  Plaintiffs appeal.  We



            reverse.



                      In addition to conceding normal weather Hood agreed



            there was no evidence of mishandling.   The captain testified



            that  the rigging  was sound,  and  had not  failed.   So did



            plaintiffs' expert, Hadley.   Although there was a suggestion



            that, before  designing  the mast,  Hood  had been  given  an



            understatement  of  the  vessel's  weight,  Hadley,  a  naval



            architect, testified that her "righting moment," the vessel's


____________________



            1.  Strictly,  she was under sail and power, in order to head

            higher into the wind and clear the land ahead.



                                         -2-



ability  to stand up to  wind pressure, and  a determinant of



            the needed strength of her mast, would have been the same.2



                      The  court's decision  hung  on its  resolution  of



            plaintiffs' expert's testimony.  (Emphasis ours, see post.)
                                                                 ____



                      THE COURT.  The question is, what is your

                      opinion as to what caused it?



                      HADLEY.  My opinion is there was cracking

                      in [the mast] that could not be resisted.

                      The  mast  itself  is a  barely  adequate
                      _________________________________________

                      design  structurally.    There . . .  was
                      ____________________

                      movement in  the mast . . . fore and aft,

                      excessive  movement  fore  and aft,  that

                      could have caused these cracks.



                                       . . . . 



                           The  mast  was  a   barely  adequate

                      design, and that any kind of crack, which

                      I  believe  existed  at  the  time, could

                      cause that mast to break.



                      Further  examined  by   plaintiffs'  counsel,   Mr.



            Clinton,  the  witness complained  of imperfect  placement of



            screw  fastenings leading the mast to crack.  The court again



            inquired:



                      THE  COURT.   It's my  understanding that

                      . . .   the  dismasting   . . .  occurred

                      because of two factors:  One, the cracks,

                      as you've displayed to the jury.



                      A.  Yes.



                      THE COURT.  And a marginal[
                                                 3]
                                                    what?
                                      __________________



                                
            ____________________



            2.  The force of this testimony is borne out by the fact that

            when  Hood made  a  replacement mast,  and  clearly knew  the

            vessel's weight, it did not make a heavier one.



            3.  The  word  "marginal"  seems  to have  been  the  court's

            interpretation of "barely adequate."



                                         -3-



A.  Factor of safety . . . the design was
                          ________________

                      barely adequate . . . it was barely large

                      enough  to perform the  task that  it was

                      asked to do.



                                       . . . .



                      THE  COURT.   So  what you're  saying is,

                      there's two factors, one is the cracks as

                      described.



                      A.  Yes.



                      THE  COURT.   And the  other is  that the
                                    ___________________________

                      mast itself was too --
                      ___________________



                      A.  Too light.
                          _________



            There followed a recapitulation  by the witness in  which the



            term  "barely adequate"  again occurred, ending  with further



            questioning by the court.



                      THE COURT.  . . . What caused the cracks,

                      did you say?



                      A.     I  believe  that  this  excess  of

                      movement which  would be existent  in too

                      light a spar could cause these cracks.



                                       . . . .



                      THE COURT.   So ultimately you're  saying
                                   ____________________________

                      that the spar was too light for the ship?
                      ________________________________________



                      A.  Yes.



                      THE COURT.   All right.  And if  the spar
                                   ____________________________

                      was too light for the ship, it means that
                      _________________________________________

                      it's  not  only  not  --  that  it's  not
                      _________________________________________

                      marginally  well  constructed,  but  it's
                      _________________________________________

                      poorly constructed?
                      __________________



                      A.   It  was too  marginal for  the ship,
                           ____________________________________

                      considering the service it  was to be put
                      _________________________________________

                      into, yes.
                      _________


-4-



This last is an  interesting statement:  for RULING



            ANGEL's "service," cruising, there  is a different, a greater



            margin of safety needed than for  racing.  This point was not



            pursued,  but is  it  not  the  racers  who  crack  on  sail,



            regardless?    That  cruisers  need a  greater  margin  is  a



            recognition that not just wind and weather, but other matters



            as  well, require a reservoir  of protection.   Lack of care,



            wear  and tear  with no  repair, for  example, are  ills that



            cruisers,  not   needing  to  be  kept  up  to  scratch,  may



            particularly  suffer from.  The fact that it was not wind and



            weather,  but some  other  weakness by  which RULING  ANGEL's



            margin of safety was  exceeded, should not affect plaintiffs'



            case.   Nor is it material  that the ill  was not identified.



            This must be omnibus protection, or it would be meaningless.



                      Following this, Hood  moved that Hadley's testimony



            be stricken  because counsel's answer to  an interrogatory as



            to what Hadley would testify was given before Hadley had been



            consulted,  and hence was  a fraud on  the court.   Also Hood



            complained  because the  answer  omitted cracks.   The  court



            sustained the latter complaint.



                           His testimony is stricken just as to

                      his  testimony  regarding  the  crack  as

                      causing, as being  one of the  causations

                      of the dismasting . . .  the rest of  his

                      testimony    may     stand    for    your

                      consideration.


-5-



Hood did not object; nor has it appealed.  It cannot complain



            now.4



                      Thereafter Hadley's final cross-examination by Hood



            was as follows:



                      Q.  Just  so we're clear, you  too are of

                      the opinion that it was okay to put [this

                      mast] on, barely okay, but okay?



                      A.   If this  were my  design and I  were

                      specifying  a mast  to Hood, I  would not

                      specify  [this  mast].    It   is  barely

                      adequate.      I  would   recommend,  for

                      example, I said the factor of  safety was

                      about  one-and-three  quarters,  I  would

                      recommend  a safety of more like two-and-

                      a-quarter.



                      Q.   No  question, people  did.   But you

                      agree it's not dangerous, you agreed this

                      was adequate?



                      A.  Barely, yes.



                      Q.  And you said so in the --



                      A.  Yes.



                      Q.  Nothing else.



                      MR. CLINTON.  No further questions.



                      When, at the close  of plaintiffs' case, Hood moved



            for directed verdict the court ruled as follows:



                      THE COURT.   . . . [I]t seems  to me that

                      if  . . . the  basis  ultimately for  the

                      damages   was   the   alleged   defective

                      manufacture  and/or  design of  the mast,



                                
            ____________________



            4.  There was  no fraud  on the  court, in  any event.   See,
                                                                     ___

            Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)
            _____    _______________

            ("fraud on the court"  consists of "unconscionable scheme" to

            interfere  with  judicial  system's  ability   to  adjudicate

            properly).



                                         -6-



your  witness said that it was marginally

                      appropriate,  or  words  to that  effect.

                      How does it get to the jury?



                      MR.  CLINTON.    Everybody else  said  he

                      wouldn't have  put  it on  the  vessel[5]

                      . . . .    We  also  . . .  have  implied

                      warranty



                                       . . . .



                      THE  COURT.   He  said it  was marginally

                      good.   I'm going to grant  the motion on

                      that basis.



            The Appeal6
            __________



                      Manifestly this  ambivalent  witness had  not  been



            prepared.   Even after the perspicacious  court's questioning



            had straightened him  out (see emphasized testimony,  supra),
                                                                  _____



            on final cross he  lapsed back.  Nor did  plaintiffs' counsel



            get the  message.   Small wonder  a  frustrated court  called



            Enough.  However, should it have?



                      Hadley's  testimony  ran  two ways.    Omitting the



            final  cross,  a  careful   reading,  ante,  with  particular
                                                  ____



            attention to  the emphasized portions, and  special attention



            to where  the court's question begins,  "So ultimately you're



            saying . . . ." would warrant a finding that in the witness's



            opinion the design was (barely) sufficient in itself, but too



                                
            ____________________



            5.  Putting  it  bluntly,  nothing  that  anybody  else  said

            advanced plaintiffs' case.



            6.  Hood cites no authority supporting its contention that we

            should look to  Virgin Island law  because of the  fortuitous

            circumstance that  the vessel  was in that  jurisdiction when

            the negligent  design manifested  itself.  For  such lack  we

            stay within the forum.



                                         -7-



light  -- slight  --  in the  sense  of  there was  added  an



            insufficient  margin of safety for  this ship.   Then, in the



            last cross, he took it all back.



                      Plaintiffs,   however,  were  not  bound  by  their



            expert's  reversal; the  jury was  free to  choose.   Lane v.
                                                                  ____



            Epinard, 318 Mass. 664, 63 N.E.2d 463 (1945) is an articulate
            _______



            example.  Plaintiff sued for breach of a contract to hire her



            as  a housekeeper.  Defendant  testified that this  was to be



            only  if his  present housekeeper  decided to leave,  and she



            decided  not  to.   Plaintiff  testified  that defendant  had



            agreed he would discharge her.  Plaintiff also testified that



            defendant  had not agreed to discharge her.  In affirming the



            trial  court's denial  of defendant's  motion for  a directed



            verdict the court said,



                           The    plaintiff's   testimony    is

                      contradictory  in  many  respects and  is

                      inconsistent  in  reference  to  material

                      aspects of her  case.   . . .   The  jury

                      . . .  could accept such  portions of her

                      testimony  as  they   deemed  worthy   of

                      credence.



            318 Mass. at 666, 63 N.E.2d at 465.



                      Where  a party  testifies finally  against her  own



            interest  she will normally be bound thereby.  See O'Brien v.
                                                           ___ _______



            Harvard Rest. &  Liquor Co.,  310 Mass. 491.  493, 38  N.E.2d
            ___________________________



            658,  659 (1941) (citing cases).7   A party,  however, is not



                                
            ____________________



            7.  We  note  that  the  Lane  court  did  not  consider  the
                                     ____

            chronology of  the plaintiff's conflicting  testimony and may

            have been generous in this respect.



                                         -8-



bound by her witness' unfavorable testimony if there is other



            evidence.  See Lydon  v. Boston Elevated Ry., 309  Mass. 205,
                       ___ _____     ___________________



            206,  34 N.E.2d  642, 644  (1941), and  cases cited.   It  is



            rudimentary  that a  witness  may  be  believed in  part  and



            disbelieved in part.  Id. at 206, 211, 34 N.E.2d at 644, 646.
                                  ___



            Where Hadley  was self-contradictory, the jury  could believe



            whichever account it chose.  



                      To  repeat,  in  spite  of  Hadley's  final  cross-



            examination,  the  jury  could  have  accepted   his  earlier



            testimony that the mast's  design was too light in  the sense



            that it did  not provide a sufficient margin of  safety for a



            cruising   yacht.     A   directed  verdict   for  Hood   was



            inappropriate.



                      Reversed.
                      ________


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