USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1727
TRANSAMERICA PREMIER INSURANCE COMPANY,
Plaintiff - Appellee,
v.
THOMAS J. OBER, ET AL.,
Defendants - Appellees.
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EL/CAP TOWING & TRANSPORTATION, INC.,
Defendants - Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Cyr and Boudin, Circuit Judges.
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Elizabeth S. Morley, with whom William W. Willard,
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Bernstein, Shur, Sawyer & Nelson, Louis G. Juliano and Bigham,
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Englar, Jones & Houston were on brief for appellant.
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Stephen M. Martin, with whom Dante Mattioni, Francis X.
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Kelly and Mattioni, Mattioni & Mattioni, Ltd. were on brief for
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appellee C&G Excavating, Inc.
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February 28, 1997
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TORRUELLA, Chief Judge. Crossclaim Defendant-Appellant
TORRUELLA, Chief Judge.
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El/Cap Towing and Transportation, Inc. ("El/Cap") appeals from a
jury verdict finding it and co-crossclaim Defendant Henry Marine
Services, Inc. ("Henry Marine") liable to appellee C&G
Excavating, Inc. ("C&G") for negligence in towing various vessels
and properties belonging to C&G. Arguing an insufficient showing
of legal causation, El/Cap contends that the trial court erred by
denying its motions for a directed verdict. In the alternative,
El/Cap argues that the district court erred by not providing the
jury a more specific special verdict form, and by denying
El/Cap's Motion for a New Trial or for Amendment of Judgment.
Finding no error, we affirm.
BACKGROUND
BACKGROUND
El/Cap and Henry Marine were two of several companies
that participated in towing C&G equipment to a dredging project
in Saco, Maine.1 C&G claimed that El/Cap and Henry Marine, while
towing, negligently caused the following damages to C&G property:
damage to a dredge (the AMBER II), loss of a tender boat (the
LITTLE GEORGE), loss of some pipeline, and loss of a pipe barge.
C&G's negligence claims were brought before the district court of
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1 This suit initially surfaced against the backdrop of a variety
of legal disputes between contractors and the Transamerica
Premier Insurance Company, which had issued performance bonds for
the payment of various contractors involved in a dredging project
in Saco, Maine. C&G owned equipment used in the dredging
project. All claims were settled before trial with the exception
of the crossclaims between C&G and El/Cap and Henry Marine that
are before us now.
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Maine under both diversity jurisdiction, 28 U.S.C. 1332, and
maritime jurisdiction, 28 U.S.C. 1333.
Many of the facts essential to a finding of negligence
were vigorously contested by the parties at trial. Because a
jury found El/Cap and Henry Marine liable, we must view the facts
in the light most favorable to C&G, draw all reasonable
inferences in C&G's favor, and refrain from assessing either the
credibility of witnesses or the relative weight of evidence.
Lama v. Borr s, 16 F.3d 473, 475 (1st Cir. 1994). As reviewed in
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this light, the tale proceeds as follows.
In November 1992, C&G entered into a Bareboat Charter
Agreement with East Coast Marine whereby East Coast Marine leased
C&G equipment it needed for the Saco, Maine, dredging project.
Specifically, East Coast Marine hired the AMBER II, the LITTLE
GEORGE, the pipe barge, and some pipeline (together, "the
equipment") from C&G. Although East Coast Marine had initially
hired El/Cap to tow the equipment from Lewes, Delaware, to Saco,
Maine, Henry Marine was ultimately given the towing job. In
their transport arrangements with Henry Marine, East Coast Marine
and C&G instructed that the equipment must be towed along the
intracoastal waterway.
Heading north in the intracoastal waterway, Henry
Marine met with delays and setbacks in successfully carrying out
the tow. At Hereford inlet, for example, the Henry Marine boats
ran aground and had difficulty navigating the equipment under
certain bridges. At this point, El/Cap agreed to assist in the
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tow, and arranged to have Henry Marine leave the intracoastal
waterway and meet El/Cap's tug, the TOMMY G, in the open seas
outside of Hereford Inlet.2 None of the equipment was damaged
while towed by Henry Marine in the period prior to El/Cap's
involvement in the tow. The decision to transfer the equipment
during rough weather and to continue heading in the direction of
New York despite rough weather was at the heart of this
negligence suit. Although the evidence regarding who made this
decision was conflicting, there was enough testimony for the
jury to decide that El/Cap made the decision.
At the time El/Cap instructed the Henry Marine boats to
bring the equipment to meet El/Cap's tug, the TOMMY G, the
forecast called for four to six foot seas. The seas were rougher
than forecast when Henry Marine brought the equipment out to the
TOMMY G, and the AMBER II broke away from a Henry Marine tug.
When the TOMMY G tried to secure the AMBER II, both the Henry
Marine tug and the TOMMY G collided with, and caused damage to,
the AMBER II. Further damage was caused to the AMBER II when, in
the course of transferring pipeline to the TOMMY G's tow, a Henry
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2 The record contains conflicting evidence regarding the
decision to take the equipment out of the intracoastal waters and
into the ocean. El/Cap draws our attention to testimony
suggesting that it was forced to rescue the equipment negligently
towed by Henry Marine, and that Henry Marine and C&G asked El/Cap
for assistance and knowingly made a decision to leave the
intracoastal waters. C&G, on the other hand, offered testimony
showing that El/Cap arranged to meet the Henry Marine boats in
the open sea. As discussed infra, there was sufficient evidence
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for a jury to find El/Cap responsible for the shift to open sea
travel.
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Marine boat struck the AMBER II again. The loss of the LITTLE
GEORGE, which was tied to the AMBER II, occurred later.
Because of the rough weather, one Henry Marine tug, the
RACHEL MARIE, agreed to continue to tow the pipeline and pipe
barge to New York. The RACHEL MARIE needed to refuel, however,
and El/Cap took control of the line from the pipe barge, tying it
to the AMBER II, to allow the RACHEL MARIE to return to shore.
The RACHEL MARIE communicated that it would return in
approximately two hours. Instead of waiting for the RACHEL MARIE
to return, the TOMMY G continued to head for New York, with all
of the equipment in tow. The TOMMY G did not seek shelter during
its voyage to New York. In rough waters, the LITTLE GEORGE broke
loose, collided with the pipe barge, and sank. The LITTLE GEORGE
was not an ocean-going vessel. Some pipeline was also lost en
route to New York.
When the TOMMY G arrived in New York, it was towing a
damaged dredge (the AMBER II) and a damaged pipe barge that
carried the remaining pipeline. In New York, El/Cap, through its
principal, Dennis Elberth, who was also the captain of the TOMMY
G, informed C&G that it would repair the pipe barge before it
left El/Cap's control. After several days, the decision was made
by East Coast Marine to continue transporting the remaining
equipment to Maine. East Coast Marine called on El/Cap to
continue towing the AMBER II. To tow the pipe barge and
pipeline, which were not repaired by El/Cap, East Coast Marine's
principal John Szegda hired two other towing companies. Local
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Towing carried out the tow between New York and Gloucester,
Massachusetts, at which point another firm, Bay State Towing,
took over.
El/Cap towed the AMBER II to Saco, Maine without
further incident. The pipeline and pipe barge sank off of the
coast of New Hampshire while being towed by Bay State Towing, due
to a hole in the barge initially sustained during the tow from
Delaware to New York. El/Cap failed to repair the hole in the
pipe barge before it left El/Cap's yard in New York.
At trial, the district court twice denied El/Cap's
motions for directed verdict and also rejected El/Cap's proposed
special verdict form. The jury awarded $221,300 to C&G,
apportioning liability 88% to El/Cap and 12% to Henry Marine.3
That figure appears to reflect a finding of liability on all of
the damages claimed by C&G, including the loss of the pipe barge
and pipeline. Henry Marine did not appear for trial, but
evidence regarding its negligence was presented to the jury and
default judgment was entered against it. El/Cap appeals the
denial of motions for directed verdict and for new trial, as well
as the denial of its proposed special verdict form. In the
alternative, El/Cap argues that the damage award should be
reduced by $96,000 to reflect the fact that El/Cap is not liable
for the loss of the pipe barge and pipeline.
DISCUSSION
DISCUSSION
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3 In its cross claim pleadings, C&G alleged damages "in excess
of $258,500."
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I. El/Cap's Motions for Directed Verdict and for New Trial
I. El/Cap's Motions for Directed Verdict and for New Trial
El/Cap argues on appeal that the evidence at trial
fails to demonstrate that El/Cap's actions were the legal cause
of any of the damages suffered during the tow and, therefore,
that the district court erred in denying El/Cap's motions for a
directed verdict and for a new trial. Before assessing the
merits of this argument, we note the pertinent standard of review
-- one that is decisive in shaping the outcome of our assessment.
In reviewing the denial of a motion for judgment as a
matter of law under Rule 50(a), we conduct a plenary review of
the evidence "viewed in the light most favorable to the non-
movant, giving [it] the benefit of every favorable inference that
may be fairly drawn therefrom." Santiago Hodge v. Parke Davis &
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Co., 909 F.2d 628, 634 (1st Cir. 1990) (citations omitted). "If
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'fair minded' persons could draw different inferences, then the
matter is for the jury." Id. We will not reverse the trial
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court's denial of defendant's Rule 50(a) motion unless the facts,
seen in the light most favorable to the plaintiff, as well as
inferences reasonably drawn therefrom "'lead to but one
conclusion -- that there is a total failure of evidence to prove
the plaintiff's case.'" Guti rrez-Rodr guez v. Cartagena, 882
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F.2d 553, 558 (1st Cir. 1989) (quoting Mayo v. Schooner Capital
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Corp., 825 F.2d 566, 568 (1st Cir. 1987)). Such is not the case
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here, as we explain below.
The appellant's hurdle is no lower on an appeal of a
denial of a Rule 59 motion for a new trial. We reverse only if
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"'the verdict is so seriously mistaken, so clearly against the
law or the evidence, as to constitute a miscarriage of justice. .
. . This strict standard of review is especially appropriate if
the motion for new trial is based on a claim that the verdict is
against the weight of the evidence.'" Guti rrez-Rodr guez, 882
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F.2d at 558 (quoting MacQuarrie v. Howard Johnson Co., 877 F.2d
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126, 128 (1st Cir. 1989)(citations omitted)). Because El/Cap
does not argue that the district court made an error as to the
controlling law -- which would merit de novo review -- our review
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is limited to determining whether the district court abused its
discretion when it evaluated the verdict against the weight of
the evidence and found no miscarriage of justice. Havinga v.
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Crowley Towing & Transp. Co., 24 F.3d 1480, 1483 (1st Cir. 1994).
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In considering whether the district court's denial of
El/Cap's Rule 50(a) motion was proper, we must view the facts
that were vigorously contested in this case in the light most
favorable to C&G. In reviewing the district court's denial of
the Rule 59 motion, our review is also limited because we will
only reverse if we find an abuse of discretion. We thus turn to
examine the evidence before the jury on which a finding of
negligence could be based.
A. Applicable Substantive Law
A. Applicable Substantive Law
Under both Maine and well-established maritime law,
"the master of a tug is required to exercise 'reasonable care and
maritime skill' with respect to the vessel in tow." DiMillo v.
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Sheepscot Pilots, Inc., 870 F.2d 746, 748 (1st Cir. 1989)
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(quoting Stevens v. White City, 285 U.S. 195, 202 (1932) (holding
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tug not liable as an insurer or common carrier)).4 Thus,
longstanding maritime norms required El/Cap and Henry Marine to
carry out the tow by using such reasonable care and maritime
skill as prudent navigators employ for the performance of similar
services.5 A court sitting in admiralty jurisdiction may look to
the application of basic proximate cause standards as they have
been elaborated by the states. Exxon Co., U.S.A. v. Sofec, Inc.,
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116 S. Ct. 1813, 1818 (1996). There is no conflict between
pertinent maritime and Maine tort law in this case. Under Maine
tort law, the causation element of the tort of negligence is
satisfied if: (1) the act or failure to act played a substantial
part in bringing about or actually causing the injury or damage,
and (2) the damage was a direct result or reasonably foreseeable
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result of the act or failure to act. Shaw v. Bolduc, 658 A.2d
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229 (Me. 1995).
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4 Our review of the jury instructions indicates that the
district court correctly outlined the relevant features of
applicable maritime tort law. The lack of Maine tort law that
either contradicts any aspect of maritime tort law or pertains
specifically to maritime torts bolsters the trial court's
apparent reliance on general maritime law principles.
5 Neither party contends that maritime law should not apply.
For a tort to be considered maritime, "it must meet two tests:
the situs of the tort must be maritime (the location test) and
the tort must bear a significant relationship to traditional
maritime activity (the nexus test)." Carey v. Bahama Cruise
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Lines, 864 F.2d 201, 207 (1st Cir. 1988) (citations omitted).
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Both tests are plainly satisfied here. As discussed in Carey,
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diversity jurisdiction does not imply that maritime law be
displaced by state law. Id. at 206-07.
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The following rules of general maritime law shed ample
light on the duty of reasonable care and maritime skill required
of El/Cap in this case, and this appeal does not require any
further expatiation of the law of the sea. The degree of caution
or care required of the navigator of a tug is related to the
nature of the tow -- in particular, the tugboat master must
consider the suitability of the tow for travel in light of the
condition of the seas encountered. The MERCURY, 2 F.2d 325, 326
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(1st Cir. 1924); see also Howlett v. The Tug DALZELLIDO, 324 F.
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Supp. 912, 916-17 (S.D.N.Y. 1971) (reviewing general principles
of law relating to towage). A tug's duty of reasonable care
includes the duty to take into consideration weather conditions
as they may affect the tow. Dimillo, 870 F.2d at 748; Chemical
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Transporter, Inc. v. M. Turecamo, Inc., 290 F.2d 496 (2d Cir.
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1961). The captain of the tug is charged with knowledge of
weather forecasts, whether or not he had actual knowledge of the
forecasts. The Tug DALZELLIDO, 324 F. Supp. at 917. A breach of
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the duty of care thus can be found when a tug captain makes a
decision that is unsafe in light of the weather conditions and
the particular circumstances of the tow that could reasonably
have been known. De Millo, 870 F.2d at 748. It is negligent,
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for example, to knowingly brave weather conditions that may
imperil a flotilla. Id. at 749.
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C&G presented two sets of allegedly negligent acts for
the jury's consideration. First, C&G claimed that damage to the
AMBER II, and the loss of the LITTLE GEORGE, were caused by: (a)
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El/Cap's decision to receive the tow from Henry Marine in the
open ocean during inclement weather, and (b) El/Cap's failure to
seek shelter after the transfer at Hereford Inlet. Second, C&G
claimed that the loss of the pipe barge and pipeline was caused
by El/Cap's failure to repair the pipe barge, as promised, in New
York. Noting that "issues of proximate cause and superseding
cause involve application of law to fact, which is left to the
factfinder, subject to limited review," we arrive at the
conclusion that a rational jury could have accepted C&G's two
theories of negligence as supported by a preponderance of the
evidence. See Exxon Co., U.S.A., 116 U.S. at 1819. Assuming the
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jury credited testimony favorable to C&G, we hold that a rational
jury could have found El/Cap negligent.
B. Damage Sustained During the Tow to New York
B. Damage Sustained During the Tow to New York
On this appeal, El/Cap does not deny that the C&G
vessels were ill-suited for open ocean travel,6 nor does El/Cap
deny that the decision to transfer the tow and continue in open
ocean during poor weather conditions was imprudent. Rather,
El/Cap stresses the following two points regarding the damages to
C&G property en route to New York: that El/Cap did not, in any
way, participate in the decision to transfer the tow off of
Hereford Inlet during stormy weather, and that the incompetence
of Henry Marine led "inevitably to the losses claimed."
Appellant's Brief at 14. According to El/Cap, it rescued the
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6 C&G brought forward expert testimony in support of the finding
that the various towed vessels were clearly unsuitable for open
sea travel. Testimony of Ronald Campana, Tr. at 226-27.
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AMBER II from the incompetent hands of Henry Marine and brought
it safely to New York. There may be some merit to El/Cap's
argument. Nevertheless, an appellate court may not usurp the
function of the jury, and thus we cleave to the facts in the
light most favorable to C&G. The record indicates that the jury
could have accepted contrary testimony as to each of these points
emphasized by El/Cap.
With regard to the decision to transfer a tow that was
unsuited for open ocean travel in rough ocean waters and foggy
conditions -- a decision that El/Cap appears to concede was
negligent, see Appellant's Brief at 15 -- the jury could have
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found that El/Cap shouldered responsibility based on the
deposition testimony, read at trial, of Robert Henry, the
principal of Henry Marine. Robert Henry averred that El/Cap's
principal knew of the nature of the tow and agreed to take over
the tow off of Hereford Inlet, and that the captain of the TOMMY
G instructed that the tow be brought out to open sea for the
purposes of the transfer. Exhibit 127 at 56-60; Tr. at 419.
Although the Henry Marine boats collided with and damaged the
AMBER II, this harm could be deemed a foreseeable result of
undertaking an open ocean transfer under unsuitable weather
conditions. The jury could have concluded that El/Cap knowingly
decided to proceed with the transfer of towed vessels that are
unsuited for open ocean travel, during rough weather. Such a
conclusion is a sufficient ground for a finding of tort liability
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as to the damage to the AMBER II, since the AMBER II suffered
damage during the transfer.
Additionally, C&G offered the expert testimony of an
experienced marine captain who opined that the Henry Marine tugs
were following the lead of El/Cap's dominant tug, and that El/Cap
failed to maintain professional standards by performing the
transfer under the circumstances. Testimony of Ron Campana, Tr.
at 229-31. El/Cap's duty to exercise reasonable care and maritime
skill required that attention be given to the special
circumstances of this tow, and a reasonable jury could have found
that they fell short of that duty by undertaking the transfer.
Even assuming, as El/Cap argues, that the principals of
C&G and East Coast Marine, eager to speed the towing process,
decided that El/Cap should relieve Henry Marine of the AMBER II
off of Hartford Inlet, this does automatically exonerate El/Cap
from liability. The jury may even have accepted El/Cap's version
of the events surrounding the decision to leave the intracoastal
waterways and still found that the TOMMY G failed to carry out
the tow prudently by participating in the transfer in poor
weather. Under certain circumstances, the duty of reasonable
care and maritime skill may require that a tug captain delay a
tow, or otherwise make ad hoc adjustments to the course or
schedule that was initially planned by its client. Cf. DiMillo,
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870 F.2d at 748-49 (tug should not have set out in bad weather).7
With regard to whether negligent acts by El/Cap were
the legal cause of the damages after the transfer, the jury could
have concluded that such damage flowed substantially from
El/Cap's decisions and was not inevitably caused by Henry
Marine's actions. Even assuming that the flotilla was "stranded
in the Intercoastal Waterway as a direct result of the
incompetence of Henry Marine," Appellant's Brief at 14, the jury
could have found that El/Cap need not have proceeded to New York
without stopping.8 C&G brought forward expert testimony
indicating that the TOMMY G had the opportunity to seek shelter
before the LITTLE GEORGE sank, but instead continued to head for
New York harbor. Tr. at 231. The LITTLE GEORGE, unfit for ocean
travel, was lost as it was being towed by the TOMMY G toward New
York harbor. C&G's expert opined not only that the TOMMY G was
the dominant tug, responsible for coordinating the actions of the
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7 We also note that a storm did not suddenly arise in the course
of the TOMMY G's tow and that El/Cap was, or should have been,
aware of the weather conditions prior to undertaking the
transfer. Therefore, El/Cap cannot argue that this is a case of
a tug captain acting in extremis. See, e.g., Boudoin v. J.R.
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McDermott & Co., 281 F.2d 81, 84 (5th Cir. 1960) (distinguishing
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in extremis cases -- which require that "something more than mere
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mistake of judgment by the master" be shown if, "without prior
negligence, a vessel is put in the very center of destructive
natural forces" -- from case where tug captain knew of weather
conditions before making decisions).
8 We note as well that the jury could have accepted that
El/Cap's participation was needed while also concluding that it
failed to use appropriate equipment for such a sea rescue,
because the TOMMY G was not able to enter shallow coastal waters.
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Henry Marine tugs, but also that the TOMMY G was responsible for
the sinking of the LITTLE GEORGE. Tr. at 236. Thus, a rational
jury could have found that the actions of the El/Cap tug, by not
seeking safety, proximately caused the damages that occurred
between Delaware and New York.
C. Loss of the Pipe Barge and Pipeline
C. Loss of the Pipe Barge and Pipeline
El/Cap promised to repair the holes in the pipe barge
before allowing it to leave its yard in New York. C&G argued
that the failure to make these repairs was a legal cause of the
loss of the pipe barge and pipeline. El/Cap, however, argues
that no jury could have found it liable for the loss of the pipe
barge because, even if El/Cap promised to repair the pipe barge
and failed to do so, the principal of East Coast Marine, John
Szegda, removed the pipe barge from El/Cap's dock and
subsequently assured the other towing companies that the pipe
barge was seaworthy. According to El/Cap, such actions on the
part of Szegda "must be viewed as breaking the chain of
causation." We disagree.
El/Cap does not deny on appeal that the jury could
conclude that the pipe barge ultimately sank as a result of
damages that El/Cap had promised to repair. Thus, it is legal
(or proximate) causation, and not factual causation, that is at
issue. El/Cap's argument regarding legal causation is that East
Coast Marine's assurances to later towers that the barge was
seaworthy cuts off El/Cap's liability. That East Coast Marine
would try to complete the tow of that pipe barge to Maine was
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certainly foreseeable. And, furthermore, the jury could have
reasonably concluded that Szegda's assurances of seaworthiness to
the later towers were based on his belief that El/Cap had in fact
repaired the pipe barge as promised. Although El/Cap did not
affirmatively indicate to Szegda or C&G that it had fixed the
pipe barge such that it was seaworthy, it remained silent.
El/Cap concedes that Dennis Elberth "acquiesced in the removal of
the pipe and barge from [El/Cap's] sea wall." Appellant's Brief
at 18. This acquiescence, in the wake of a promise to repair the
barge before permitting it to continue to Maine, may have led a
rational jury to conclude that El/Cap breached its duty of care
with regard to the pipe barge. Thus, despite the general rule
that an owner of a tow is responsible for warranting its basic
seaworthiness,9 we agree with the following statement made by the
district court in the course of denying El/Cap's motion for a
directed verdict:
[T]here is a basis upon which the jury could
reasonably conclude from the evidence that
El/Cap should not have released that pipeline
in New York, especially after it had made a
commitment to Mr. Todd that it would not do
so until the repairs had been made.
Tr. at 318. It was within the province of the jury as factfinder
to determine that El/Cap's acts and omissions proximately caused
the sinking of the pipe barge and pipeline, even though El/Cap
was not towing the barge when it sank. We note that El/Cap
presented its argument regarding superseding causes of damage at
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9 See, e.g., South, Inc. v. Moran Towing & Transp. Co., 360 F.2d
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1002, 1005 (2d Cir. 1966) (collecting cases).
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closing argument. The jury's verdict, apparently granting full
damages, can therefore be regarded as a rejection of this
argument.10
All of these considerations lead us to conclude that
the denials of El/Cap's motions for directed verdict and new
trial are not tantamount to abuses of discretion. Because we do
not displace the jury's finding of liability as to the pipeline
and pipe barge, we also decline El/Cap's invitation to adjust the
jury's damage determination to reflect no liability for the loss
of the pipeline and pipe barge.11
II. Special Verdict Form
II. Special Verdict Form
Finally, El/Cap casts the trial court's rejection of
El/Cap's proposed special verdict form as reversible error. If
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10 Furthermore, at no time did El/Cap specifically request a
jury instruction regarding whether certain factual findings
(later acts) would imply a break in the chain of legal causation
with regard to the damage to the pipe barge. Hence, under Federal
Rule of Civil Procedure 51, El/Cap may not argue on appeal that
the jury's attention should have been drawn more specifically to
subsequent supervening causes of the pipe barge's loss. See,
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e.g., Parker v. Nashus, 76 F.3d 9, 12 (1st Cir. 1996).
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11 El/Cap's basic contention is that it should not be made to
pay for lost pipeline; it does not claim that the jury's award is
otherwise unreasonable. That is, El/Cap does not argue that the
damage award is excessive in the sense of not being based on the
jury's findings of liability; rather, El/Cap challenges those
findings of liability. Indeed, the jury award of $221,300 is not
unreasonable, assuming the jury found the defendants liable for
all of the damages claimed. Trial testimony, considered in the
light most favorable to the verdict, indicated that the LITTLE
GEORGE and its cargo, which sank, were worth $102,333, Tr. at
283; that the damage suffered by the AMBER II totalled $68,300,
Tr. at 281; and that the value of the lost pipeline was $76,427,
Tr. at 284. Thus, in light of direct replacement or repair cost
estimates put forward by C&G's expert at trial, the jury damages
award is far from unreasonable.
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the claim of error had been properly preserved, we would review
the district court's refusal to use the verdict form offered by
El/Cap, and any challenge to the wording of the special verdict
form used under Rule 49(a), for abuse of discretion. See, e.g.,
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Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182,
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190 (4th Cir. 1994) (collecting cases).
However, our review in this case is further restricted
to "plain error" review because El/Cap did not object to the
special verdict form after the instructions had been given and
before the jury retired. See Fed. R. Civ. P. 51; Clausen v. SEA-
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3, Inc., 21 F.3d 1181, 1195-96 (1st Cir. 1994). Although El/Cap
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proposed an alternative verdict form, it was required to renew
any objections after the jury instructions, and did not do so
despite being explicitly reminded by the court of the need to
preserve its objections for appeal. We therefore limit our
review to plain error.
We discern no error, let alone plain error, in the
trial court's rejection of El/Cap's verdict form in favor of its
own. The trial court has broad discretion in crafting, and in
deciding to use, special verdict forms. See Smith v. Lightning
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Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988). The verdict
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form used by the court, attached as an appendix, required, in
plain and unmistakable terms, the jury to make a finding of
negligence and legal causation with regard to each of the
defendants, to determine the extent of recoverable damages, to
assess comparative negligence, and to apportion fault. Construed
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against the background of the jury instructions, which properly
set out the duty of reasonable care and maritime skill required
in the towing context, see Tr. at 587-95, and which instructed
___
the jury to make determinations of liability by a preponderance
of evidence as "to each particular claim" made by C&G, see Tr. at
___
597-98, this verdict form fully and fairly put the issues of
negligence raised in the case before the jury. See, e.g., Putnam
___ ____ ______
Resources v. Pateman, 958 F.2d 448, 455 (1st Cir. 1992) ("[I]t is
_________ _______
well established that verdicts must be construed in light of the
totality of the surrounding circumstances, including the court's
instructions."). On plain error review, our task ends with our
finding that the wording of the verdict form did not hinder or
prevent the jury from making any of the relevant findings as to
damages that they had been properly instructed by the district
court to make.12 Hence, there is no threat of a "clear
miscarriage of justice" or of an error affecting the "fairness,
integrity or public reputation of judicial proceedings." PHAV,
____
915 F.2d at 769 (quoting Smith v. Massachusetts Inst. of Tech.,
_____ _____________________________
877 F.2d 1106, 1109 (1st Cir. 1989)).
CONCLUSION
CONCLUSION
____________________
12 The significant difference between El/Cap's proposed form and
the form used by the court is that El/Cap's form required that
the jury write down a separate finding of damages for each item
of C&G property at issue. The district court's decision not to
list each of the C&G properties separately in the damage-
assessment portion of the verdict form simply does not, as El/Cap
argues, prevent the jury from assessing the negligence of the
parties as to each damaged item.
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For the reasons put forward in this opinion, we find no
error in any of the trial court's actions challenged on this
appeal, and therefore affirm the judgment entered by the district
affirm
______
court pursuant to the jury verdict.
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Appendix
Appendix
The verdict form used below read as follows::
1. Was Defendant El Cap Towing Company, Inc.
negligent and was such negligence a legal
cause of damages sustained by the Plaintiff,
C&G Excavating, Inc.? YES ____ NO ____
(Answer Question No. 2)
(Answer Question No. 2)
2. Was Defendant Henry Marine Company, Inc.
negligent and was such negligence a legal
cause of damages sustained by the Plaintiff,
C&G Excavating, Inc.? YES ___ NO___
(If the answer to either Question
(If the answer to either Question
No. 1 or No. 2 is "Yes," answer
No. 1 or No. 2 is "Yes," answer
question No. 3; otherwise, answer
question No. 3; otherwise, answer
no further questions.)
no further questions.)
3. What is the total amount of damages
sustained by the Plaintiff, C&G Excavating,
Inc., as a result of the combined negligence
of Defendants Henry Marine Company, Inc. and
El Cap Towing Company, Inc.?
_______________________________ $_________
(Write out in words) (Figures)
(Write out in words) (Figures)
(Answer Question No. 4)
(Answer Question No. 4)
4. Was the Plaintiff, C&G Excavating, Inc.,
at fault and was such fault a legal cause of
Plaintiff's damages? YES ____ NO ____
(If you have answered Question No.
(If you have answered Question No.
4 "NO," answer Question No. 6; if
4 "NO," answer Question No. 6; if
applicable; If you have answered
applicable; If you have answered
"YES," answer Question No. 5.)
"YES," answer Question No. 5.)
5. To what amount should the damages to be
recovered by Plaintiff, C&G Excavating, Inc.,
from the Defendants be reduced, having due
regard for the nature and extent of
Plaintiff's fault legally causing those
damages?
_____________________________ $_________
(Write out in Words)
(Write out in Words)
(Figures)
(Figures)
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(If you have answered both Question No. 1
(If you have answered both Question No. 1
and No. 2 'YES," answer Question No. 6;
and No. 2 'YES," answer Question No. 6;
otherwise, answer no further questions).
otherwise, answer no further questions).
6. Apportionment of Fault: What portion of
Apportionment of Fault
the total fault of all the parties legally
causing or substantially contributing to
causing the damages you have found to be
sustained by the plaintiff, C&G Excavating,
Inc., do you attribute (by percentage) to
each of the defendants, El Cap Towing
Company, Inc. and Henry Marine Company, Inc.?
(a) El Cap Towing Company, Inc.
__________%
(b) Henry Marine Company, Inc. __________%
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