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<pre>                  UNITED STATES COURT OF APPEALS <br>                      FOR THE FIRST CIRCUIT <br>                       ____________________ <br> <br>No. 97-1804 <br> <br>                           ERIC WILSON, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                MARITIME OVERSEAS CORPORATION and <br>                     CAMBRIDGE TANKERS, INC., <br>                      Defendants, Appellant. <br> <br>                       ____________________ <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. Joseph L. Tauro, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                  Aldrich, Senior Circuit Judge, <br> <br>                    and Lynch, Circuit Judge. <br> <br>                      _____________________ <br> <br>     Thomas E. Clinton, with whom Clinton & Muzyka, P.C., was on <br>brief for Maritime Overseas Corporation and Cambridge Tankers, Inc. <br>     Michael B. Latti, with whom Carolyn M. Latti and Latti <br>Associates LLP, were on brief for Eric Wilson. <br> <br> <br> <br>                       ____________________ <br> <br>                         July 10, 1998 <br>                      ____________________

          TORRUELLA, Chief Judge.  Eric Wilson, chief mate on an ocean- <br>going oil tanker owned by defendant-appellant Cambridge Tankers, <br>  Inc., was injured during a voyage as he attempted to repair <br> hydraulic fluid lines that were leaking inside one of the main <br>   cargo holds.  He filed suit in the district court against <br>  Cambridge Tankers, as well as against his employer, Maritime <br> Overseas Corporation, asserting claims under the Jones Act, 46 <br>U.S.C.  688, for negligence, and under the general maritime law <br>for unseaworthiness and for maintenance and cure.  After trial, <br>the jury awarded Wilson $2,000,000 in compensatory damages.  The <br>defendants now appeal from the verdict, arguing that the district <br>court erred both in failing to instruct the jury on comparative <br>negligence and the primary duty rule, and in denying their motion <br>  for a remittitur.  We remand for a new trial on all issues. <br>                         I.  Background <br>          "We . . . review the evidence developed at trial in the light <br> most favorable to [the verdict]."  Toucet v. Maritime Overseas <br>             Corp., 991 F.2d 5, 7 (1st Cir. 1993). <br>          The plaintiff, Eric Wilson, was employed as a chief mate by <br>Maritime Overseas Corporation on the M/T OVERSEAS BOSTON, which <br> was owned, operated, and controlled by Cambridge Tankers, Inc. <br>  (collectively, "the defendants").  On January 19, 1994, the <br>OVERSEAS BOSTON was approximately 75 miles off the western coast <br>of Mexico on its way to Valdez, Alaska.  The plaintiff was in a <br> Zodiac inflatable raft in the vessel's No. 2 center cargo tank <br>  ("tank No. 2C") trying to patch two leaking hydraulic lines. <br>          The decision to patch the lines while the OVERSEAS BOSTON was <br>underway was made jointly by the captain, the chief engineer, and <br>Wilson, the chief mate.  Several hydraulic lines had been leaking <br> since at least 1991, and Wilson and others had placed numerous <br>  requests with the vessel's owners to replace the lines at a <br>shipyard.  The hydraulic lines, made out of copper beryllium, <br>control the valves that regulate the flow of petroleum into and <br>out of the ship.  The leaks in the lines were a constant source <br>of worry on the OVERSEAS BOSTON because, if the hydraulic system <br>failed, the valves could open without warning, creating the <br>possibility of an oil spill.  The defendants' established <br>procedure for patching hydraulic lines was to fill the tank with <br>seawater to a height sufficient to allow a seaman on a raft <br>floating inside the tank to reach the hydraulic line in question.  <br>The leaking section of pipe is then cut and replaced with a new <br>stainless steel section.  There was no other equipment available <br>on the OVERSEAS BOSTON with which to repair the lines. <br>     The lines that Wilson was patching on the day of the accident ran <br>vertically down one side of tank no. 2C.  These lines were <br>leaking near the top of the tank, which is seventy-five feet <br>deep.  To reach the lines, Wilson had the tank filled up to <br>approximately the sixty-five foot mark, so that the raft could <br>float within eight to ten feet of the deck above.  However, the <br>underside of the deck on the OVERSEAS BOSTON is spanned from port <br>to starboard by large metal I-beams, whose vertical span is about <br>five feet.  Thus, the clearance between the bottom of each beam <br>and the surface of the water was only approximately three to five <br>feet. <br>     Wilson and a seaman climbed aboard the raft, and Wilson knelt in <br>the forward section to paddle the raft toward the leaking lines.  <br>The beams were about one or two feet above his head.  Proceeding <br>in this manner, Wilson and the seaman went under two beams <br>without incident.  Unbeknownst to Wilson, however, the vessel <br>changed course while he was still paddling.  Although the captain <br>and officers on the bridge knew that Wilson was in the tank, and <br>could communicate with him by hand-held radio, they failed to <br>warn him of the impending change of course.  Unfortunately, there <br>was a wave in the tank (attributed by Wilson to the change in <br>course), which lifted the raft and slammed Wilson against a beam. <br>     Although he was in pain, Wilson assumed that he had not been <br>seriously injured, and decided to continue patching the lines.  <br>When he exited the tank about an hour later, he mentioned to the <br>chief engineer that he had hurt his back.  The captain examined <br>Wilson's back, and told him to rest in his cabin until he felt <br>better.  The pain did not go away, however, and Wilson left the <br>ship to be examined by doctors.  He was told at first that his <br>pain was most likely due to a bad sprain and injury to the soft <br>tissues along his spine.  After several months, however, Wilson <br>was still in pain, especially when he bent his back or climbed <br>stairs.  Wilson thus consulted a second doctor, who determined <br>that Wilson had fractured his spine at the T8 vertebra.  Wilson <br>remained on medical leave the rest of 1994, during which he <br>underwent various rehabilitative treatments for his injury, <br>including wearing a back brace for four months, and receiving <br>frequent steroid injections to build up the muscles in his back. <br>     In January 1995, Wilson's condition had improved enough that he <br>was allowed to go back to work as a chief mate on a trial basis.  <br>He was assigned to work on the OVERSEAS NEW YORK while it was <br>moored for maintenance and repairs in Portland, Oregon.  This <br>trial period lasted for sixty-five days, during which it became <br>apparent that Wilson's ability to perform his duties as a chief <br>mate was compromised by the pain that he frequently suffered <br>while climbing stairs or performing other physically-strenuous <br>tasks.  Nevertheless, his performance of other duties was <br>exemplary, and he was recommended for promotion to captain, which <br>was a less physically-demanding job. <br>     During the summer of 1995, in preparation for his imminent <br>promotion, he was assigned to the OVERSEAS CHICAGO for <br>approximately one month attached to its captain in preparation <br>for his own promotion to captain.  Captain Olsen, the OVERSEAS <br>CHICAGO's captain, reported that Wilson had performed very well, <br>and that his promotion was both warranted and due.  A short time <br>later, Wilson was asked to obtain a medical certificate that he <br>was fit for administrative duties as captain. <br>     After obtaining a certification that he was fit for <br>administrative duty as a captain, Wilson was assigned to relieve <br>Captain Olsen on the OVERSEAS CHICAGO, which was berthed in <br>Portland, Oregon.  On August 15, 1995, he flew out to Portland, <br>went to the OVERSEAS BOSTON, and exchanged command of the ship <br>with Captain Olsen.  An hour or two later, Captain Olsen returned <br>and told Wilson that he had to speak to his superiors at Maritime <br>Overseas' headquarters in New York.  When Wilson placed the call, <br>he was told that the medical certificate was not satisfactory, <br>because it did not certify that he was fully fit for any duty on <br>the ship.  Captain Olsen was ordered to relieve Wilson of his <br>command and march him off the ship.  Wilson was given $500 and <br>told to stay at a nearby hotel until the matter could be sorted <br>out.  However, after waiting several days without hearing <br>anything further, Wilson flew back to his home in Maine. <br>     Soon afterwards, Wilson filed the instant suit in the U.S. <br>District Court for the District of Massachusetts, alleging  both <br>diversity and federal question jurisdiction.  See 28 U.S.C. <br> 1331, 1332.  In his complaint, Wilson claimed that his <br>injuries were caused both by the OVERSEAS BOSTON's unseaworthy <br>condition and by the bridge officers' failure to warn him of the <br>impending course change.  In their answer to the complaint, the <br>defendants denied Wilson's allegations of unseaworthiness and <br>negligence, and claimed as affirmative defenses that the sole <br>cause of Wilson's injuries was either his own negligence, or his <br>failure to properly perform his duties as chief mate.  <br>     A jury trial started on February 10, 1997.  At the end of the <br>plaintiff's case, the defendants moved for judgment as a matter <br>of law on the unseaworthiness and negligence claims.  On <br>February 19, 1997, the last day of trial, the district court <br>summarily denied the motion.  The court also denied the <br>defendants' request that he instruct the jury on comparative <br>negligence and the primary duty rule, as well as their request <br>that the jury questionnaire contain questions on those <br>affirmative defenses.   <br>     The following day, the jury returned a special verdict for <br>Wilson, finding that the OVERSEAS BOSTON was unseaworthy, that <br>the defendants had been negligent, that both the unseaworthiness <br>and negligence had been proximate causes of Wilson's injuries, <br>that his pre- and post-judgment damages totaled $2,000,000, and <br>that he was entitled to pre-judgment interest.  On February 28, <br>1997, the district court entered judgment in accordance with the <br>verdict in the amount of $2,139,804.93.   <br>     The defendants timely filed three post-judgment motions: a <br>renewed motion for judgment as a matter of law, a motion for a <br>new trial, and a motion for remittitur.  The district court <br>denied all three motions by means of a one-page order dated June <br>5, 1997.  The defendants now appeal from the denial of their <br>motions. <br>

II.  Objections to instructions <br>A.  Standard of review <br>     The defendants' primary argument is that the jury's verdict <br>should be set aside and the case remanded for a new trial because <br>the jury instructions and questionnaire were incorrect as a <br>matter of law, and because these errors prejudiced them.  Before <br>reaching the merits of the defendants' objections, however, we <br>must resolve the threshold issue of whether the defendants <br>properly preserved their objections. <br>     Objections to instructions must comply with Fed. R. Civ. P. 51, <br>which provides in pertinent part: <br>     No party may assign as error the giving or the failure to give an <br>     instruction unless that party objects thereto before the jury <br>     retires to consider its verdict, stating distinctly the matter <br>     objected to and the grounds of the objection. <br> <br>Objections must also comply with Fed. R. Civ. P. 49(a).  Rule <br>49(a) permits a court to require a jury to return only a special <br>verdict in the form of a special written finding upon each issue <br>of fact, and requires the court to give such instructions to the <br>jury "concerning the matter thus submitted as may be necessary to <br>enable the jury to make its findings upon each issue."  More to <br>the point, Rule 49(a) further provides: <br>     If in so doing, the court omits any issue of fact raised by the <br>     pleadings or by the evidence, each party waives the right to a <br>     trial by jury of the issue so omitted unless before the jury <br>     retires the party demands its submission to the jury. <br> <br>Both Rule 49(a) and Rule 51 thus require the objecting party to <br>state its objections after the charge but before the jury <br>retires.  "The object of [these rules] is to afford the trial <br>judge an opportunity upon second thought, and before it is too <br>late, to correct any inadvertent or erroneous failure to charge."  <br>Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir. 1955). <br>     Thus, "[s]ilence after instructions, including instructions on <br>the form of the verdict to be returned by the jury, typically <br>constitutes a waiver of any objections."  Putnam Resources v. <br>Pateman, 958 F.2d 448, 456 (1st Cir. 1992).  It must be <br>emphasized that "[i]t is an ironclad rule in this circuit that <br>failure to renew objections after the charge constitutes waiver <br>of any claim of error."  United States v. Richardson, 14 F.3d <br>666, 670-71 (1st Cir. 1994) (citation omitted) (emphasis added); <br>see also Marshall, 222 F.2d at 615. <br>     If a party's objections comply with Rules 49(a) and 51, "then the <br>'harmless error' standard of Rule 61 governs the trial or <br>appellate court's consideration of any request for relief based <br>on the alleged error."  Scarfo v. Cabletron Sys., Inc., 54 F.3d <br>931, 939 (1st Cir. 1995).  Rule 61 provides that "[n]o error . . <br>. in anything done or omitted by the court . . . is ground for <br>granting a new trial . . . unless refusal to take such action <br>appears to the court inconsistent with substantial justice."  <br>Fed. R. Civ. P. 61; see also 28 U.S.C.  2111; Fed. R. Crim. P. <br>52.  An error is not harmless if the court is "in grave doubt as <br>to the harmlessness of an error that affects substantial rights."  <br>O'Neal v. McAninch, 513 U.S. 432, 445 (1995); see also Scarfo, 54 <br>F.3d at 939-40 (citing  O'Neal). <br>     The failure to preserve objections does not entirely preclude our <br>review.  In such cases, however, we review only for plain error.  <br>See Moore v. Murphy, 47 F.3d 8, 11 (1st Cir. 1995).  "For an <br>error to be such, it must indeed be 'plain,' or 'obvious,' . . . <br>and it must 'affect substantial rights,'  Fed. R. Crim. P. 52(b), <br>that is, '[i]t must have affected the outcome of the district <br>court proceedings.'"  United States v. Fernndez, ___ F.3d ___, <br>1998 WL 263427 at *3 (1st Cir. May 29, 1998) (citation omitted) <br>(emphasis added).  Thus, whereas plain error review permits <br>reversal only when the court is certain that substantial rights <br>were affected, harmless error review requires reversal whenever <br>the court harbors grave doubts as to whether the alleged error <br>affected substantial rights. <br>     Moreover, even when a district court's instructions are plainly <br>erroneous, we will not remedy any such errors "[u]nless [we <br>conclude] that the charge has caused a miscarriage of justice or <br>has undermined the integrity of the judicial process."  Scarfo, <br>54 F.3d at 940.  Otherwise, "the charge is treated as having an <br>effect closely analogous to [the] law-of-the-case doctrine, and <br>for similar reasons of policy and fairness of process."  Id.; see <br>also  Coy v. Simpson Marine Safety Equip., Inc., 787 F.2d 19, 25 <br>(1st Cir. 1986); Carrillo v. Sameit Westbulk, 514 F.2d 1214, 1219 <br>(1st Cir. 1975); Bouley v. Continental Cas. Co., 454 F.2d 85, 88 <br>(1st Cir. 1972); Dunn v. St. Louis, San Francisco R.R. Co., 370 <br>F.2d 681, 684 (10th Cir. 1966) (Aldrich, J., sitting by <br>designation); see generally United States v. Olano, 507 U.S. 725 <br>(1993) (under Fed. R. Crim. P. 52(b), a forfeited claim of error <br>may be noticed on appeal only if error is plain, affects <br>substantial rights, and a miscarriage of justice would otherwise <br>result). <br>     Satisfying Rule 51 requires more than a timely objection.  The <br>party making the objection must also state "distinctly the matter <br>objected to and the grounds for the objection."  Fed. R. Civ. P. <br>51.  "Failure to object with the requisite particularity forfeits <br>review under the 'harmless error' rule."   Play Time, Inc. v. <br>LDDS Metromedia Comm., Inc., 123 F.3d 23, 29 (1st Cir. 1997). <br>     This is not a merely technical requirement serving no useful end.  <br>     Trial judges are not mind readers.  If there is a problem with <br>     the instructions, the judge must be told precisely what the <br>     problem is, and as importantly, what the attorney would consider <br>     a satisfactory cure. <br> <br>Linn v. Andover Newton Theological Sch., 874 F.2d 1, 5 (1st Cir. <br>1989).  Thus, for example, this circuit has previously held that <br>where a district court had first indicated that it intended to <br>give an instruction, but later failed to do so, the appellant's <br>reading a list of the numbers of the requested instructions was <br>not sufficient to preserve an objection under Rule 51.  See CVD, <br>Inc. v. Raytheon Co., 769 F.2d 842, 858-59 (1st Cir. 1985).  The <br>panel stated that, because the objection was not accompanied by <br>any argumentation, it was "impossible for this Court on appeal to <br>know whether the district judge reconsidered his original <br>decision that this instruction was proper, or simply omitted this <br>instruction through inadvertence."  Id.  <br>     Finally, we note that objections to instructions need not be <br>formal; "it is sufficient that a party . . . makes known to the <br>court the action which the party desires the court to take or the <br>party's objection to the action of the court and the grounds <br>therefor."  Fed. R. Civ. P. 46 (emphasis added); see alsoCarrillo, 514 F.2d at 1218.  The emphasis is not on the form of <br>objections, but rather on ensuring that the trial court had <br>actual notice of the nature and grounds of the objection.  In one <br>case, therefore, a prior panel of this court found that a party <br>had preserved its objections under Rule 51 by reserving them in <br>advance, when it was clear that the court had understood the <br>objections.  See Bouley, 454 F.2d at 88; cf. Harrington v. United <br>States, 504 F.2d 1306, 1316-17 (1st Cir. 1974) (objections were <br>preserved by brief post-charge statement on the record, where <br>parties had discussed the requested instructions with the judge <br>at length but off the record).  However, "we warn parties that <br>there is a heavy burden upon them in such event to show that it <br>was done with sufficient specificity and distinctness, and we <br>caution district courts to be slow in tolerating such procedure."  <br>Dunn, 370 F.2d at 685. <br>     Thus, we must determine whether the defendants properly preserved <br>their objections to the district court's decision not to charge <br>the jury on their affirmative defenses.  If the objections were <br>preserved, then we evaluate whether the district court's decision <br>was erroneous.  Finally, if the district court erred, we must <br>ascertain whether the error was harmful.  Only if the answer to <br>the last question is affirmative may we vacate the judgment of <br>the district court. <br>B.  Application <br>     The case before us is a close one.  Taken alone, the defendants' <br>post-charge objections might well be insufficient to satisfy Rule <br>51.  Defendants' counsel was referring to Peymann v. Perini Corp., <br>507 F.2d 1318 (1st Cir. 1974), which we discuss elsewhere in this <br>opinion.  However, this case presents a peculiar factual scenario.  A <br>perusal of the record and trial transcript reveals that, because <br>the district court was familiar with the defendants' arguments, <br>the post-charge objections submitted by defendants' counsel were <br>sufficient to give the district court notice of which <br>instructions' absence they objected to, as well as the grounds <br>therefor.   <br>     As a general matter, we have noticed that throughout the trial, <br>the district court handled all objections to its rulings in an <br>expeditious and efficient manner.  Once the court had heard an <br>argument, understood it, and ruled upon it, it did not want to go <br>over the same ground again.  The court thus requested that <br>counsel subsequently state their objections for the record as <br>concisely as possible, discouraging them from repeating at length <br>again the basis for their objections. <br>     The transcript indicates that the court was well aware of the <br>grounds for the defendants' objections to the lack of <br>instructions on comparative negligence and the primary duty rule.  <br>The record of this case included a copy of the defendants' first <br>motion for judgment as a matter of law, on the cover of which the <br>court had written its ruling - "Denied."  The motion was <br>accompanied by a memorandum of law discussing at length the <br>defendants' contention that the evidence heard at trial <br>established that Wilson had both been comparatively negligent and <br>been injured solely as a result of his violation of his own duty <br>to maintain a safe working environment.  Although it is not clear <br>whether the motion was entered on the case docket, we strongly <br>suspect that the  handwritten ruling denying the motion is the <br>ruling to which Mr. Clinton refers to in the following exchange: <br>     MR. LATTI [Plaintiff's counsel]: I'd like to move at this time <br>     for a judgment as a matter of law on the issue of contributory <br>     negligence of the plaintiff. <br>     THE COURT: I will not charge on contributory negligence. <br>     MR. LATTI: All right.  When you say you're not going to charge, <br>     is that an issue? <br>     THE COURT: It's not an issue. <br>     MR. LATTI: All right. <br>     MR. CLINTON [Defendants' counsel]: He addressed it the other day, <br>     and I understood the ruling. (Indicating document.) <br> <br>Transcript, at 6-57 (emphasis supplied).  In any case, this <br>excerpt makes it evident that by the sixth day of trial, the <br>court had been presented with detailed arguments on the issues of <br>comparative negligence and the primary duty rule, and had <br>determined that there was insufficient evidence to justify <br>instructing the jury on those issues. <br>     A subsequent bench conference, during which the court ordered the <br>parties to agree upon a special verdict form, showed that all of <br>the participants, including the deputy clerk, knew quite well <br>that the court had ruled that no instruction on comparative <br>negligence would be given.  Wilson contends that the defendants' <br>failure to argue their objections forcefully and in detail <br>indicates that those objections had been waived.  We disagree.  <br>In light of the court's policy toward objections, in general, and <br>of its prior rulings on the issues of comparative negligence and <br>the primary duty rule, in particular, we read the exchange that <br>occurred during that bench conference as indicating only that the <br>defendants were following the court's instructions to hold their <br>objections until after the charge, when they would be restated <br>concisely to preserve them for appeal. <br>      After the parties' closing arguments, and immediately before the <br>court began its instructions, Mr. Clinton sought some changes to <br>the jury instructions.  The judge denied the request, stating: <br>"You listen to my instructions.  I am sure you won't like them, <br>but you can save your rights after I am through.  Okay?"  The <br>court's response corroborates our general impression: that the <br>district court had heard, understood, and denied the defendants' <br>requests for instructions, but that it properly allowed the <br>defendants to preserve their objections for appeal.   <br>     After the court instructed the jury, but before the jury retired <br>to deliberate, another bench conference was held, during which <br>the defendants' counsel stated his objections for the record.  <br>See supra note 5.  As we mentioned above, if this had been the <br>only objection made by the defendants, it probably would not have <br>sufficed to meet the requirements of Rule 51.  In the context of <br>the facts of this case, however, we deem the objection <br>sufficiently detailed to alert the court of its nature and <br>grounds.  It is evident that the court clearly understood the <br>gist of the defendants' arguments and had already reached a <br>determination upon the merits of those arguments.  The court did <br>not, however, wish to curtail the defendants' right to appeal its <br>determination, so it allowed their counsel to state their <br>objections for the record in abbreviated form. <br>     We ended our discussion of practice under Rules 49(a) and 51 by <br>noting that, notwithstanding how strictly they are applied, there <br>will exist a few, rare occasions in which we will deem objections <br>to have been preserved if it is shown that the district court had <br>actual notice of the nature and grounds of the objections.  This <br>case is one such occasion.  Earlier in the trial, the district <br>court had clearly rejected the defendants' motion for judgment as <br>a matter of law on the issues of comparative negligence and the <br>primary duty rule.  Subsequently, the court rejected their <br>request for instructions on those issues, and thereafter <br>discouraged the defendants' counsel from rehashing the objections <br>repeatedly, other than merely noting them for the record.  <br>Considering the entire interaction between the court and counsel, <br>we conclude that the defendants' counsel sufficiently apprised <br>the court of their objections and the reasons therefor to <br>preserve them for appeal. <br>C.  Failure to give instructions <br>     Wilson argues that even if the defendants preserved their <br>objections to the court's jury instructions and special verdict <br>form, the court's decision not to instruct on comparative <br>negligence and the primary duty rule was correct and therefore <br>harmless.  Wilson contends that the district court acted <br>correctly in denying the defendants' request for instructions <br>both because the instructions they proffered were incomplete, and <br>because the evidence adduced at trial was not sufficient to allow <br>a reasonable jury to conclude that he had either acted <br>negligently or violated his duties as chief mate.  We are not <br>persuaded by either argument. <br>     Courts often state in broad terms the rule that a trial court is <br>under no obligation to accept a request for an instruction if the <br>proffered instruction is incorrect in any way.  For example, we <br>have remarked that "the lawyer must propose a lawful instruction <br>or correction, and not one that substantially overstates the law <br>in that party's favor."  Parker v. City of Nashua, 76 F.3d 9, 12 <br>(1st Cir. 1996) (citing Scarfo, 54 F.3d at 944).  Other circuits <br>hew to a similar line.  See, e.g., Robinson v. Bump, 894 F.2d <br>758, 761 (5th Cir. 1990) ("If an objection is raised against the <br>failure to grant a requested instruction, the correctness of the <br>proposed instruction must be shown as a threshold matter."). <br>     Of course, a court should not agree to give the specific <br>instruction requested by a party if that instruction is incorrect <br>as a matter of law.  However, the position advocated by Wilson is <br>a different one - that the trial court's decision not to give any <br>instructions on comparative negligence and the primary duty rule <br>was correct precisely because the specific instructions proposed <br>by the defendants were either incomplete or incorrect.   <br>     Wilson's argument is surely wrong.  There are two separate rules: <br>a) a court must instruct the jury correctly and adequately on <br>controlling issues, see Sullivan v. National Football League, 34 <br>F.3d 1091, 1107 (1st Cir. 1994), and b) a court need not accept a <br>particular instruction if it does not accurately state the law, <br>see Jerlyn Yacht Sales, Inc. v. Roman Yacht Brokerage, 950 F.2d <br>60, 68 (1st Cir. 1991).  Consequently, even though a trial court <br>is under no obligation to give any particular requested <br>instruction, "[i]f the request directs the court's attention to a <br>point upon which an instruction to the jury would be helpful, the <br>court's error in failing to charge may not be excused by <br>technical defects in the request."  9A Charles A. Wright & Arthur <br>R. Miller, Federal Practice and Procedure  2552 at 395-97 <br>(1995); see Ouimette v. E.F. Hutton & Co., 740 F.2d 72, 76 (1st <br>Cir. 1984).  Accordingly, we need not decide whether the <br>defendants' proffered instructions were correct as a matter of <br>law.  The requests sufficed to alert the district court to the <br>need for some instructions, even if not the specific ones urged <br>by the defendants, on the affirmative defenses of comparative <br>negligence and the primary duty rule. <br>D.  Harmlessness of the error <br>     We come, therefore, to the merits of the dispute: did the <br>district court err in failing to charge the jury on comparative <br>negligence and the primary duty rule?  As mentioned above, a <br>district court is duty-bound to give instructions on all issues <br>of material fact raised by the evidence adduced at trial.  The <br>standard for determining whether a factual issue is sufficiently <br>contested to require an instruction is identical to the standard <br>for determining whether a factual controversy prevents the entry <br>of judgment as a matter of law.  Compare Fashion House, Inc. v. K <br>Mart Corp., 892 F.2d 1076, 1088 (1st Cir. 1989) ("[A] mere <br>scintilla of evidence is not enough to forestall a directed <br>verdict, especially on a claim as to which the burden of proof <br>belongs to the objecting party."); with Farrell v. Klein Tools, <br>Inc., 866 F.2d 1294, 1297 (1st Cir. 1989) ("There must be more <br>than a scintilla of evidence to support an instruction."); cf.United States v. Rodrguez, 858 F.2d 809, 812 (1st Cir. 1988) (In <br>criminal cases, "the district court's task [of determining <br>whether an issue requires an instruction] bears a resemblance to <br>its function in determining whether or not a directed verdict or <br>judgment of acquittal should be ordered.").   <br>     In neither situation may the court weigh the evidence, make <br>credibility determinations, or resolve conflicts in the proof.  <br>Instead, the court must determine whether the evidence presented <br>at trial, along with all inferences that may reasonably be drawn <br>therefrom, could plausibly support a finding for either party on <br>any given issue of material fact.  Cf. Transamerica Premier Ins. <br>Co. v. Ober, 107 F.3d 925, 929 (1st Cir. 1997) (in the Rule 50 <br>context, the court makes all reasonable inferences in favor of <br>the non-moving party).  "Because such a decision entails not <br>differential fact-finding, but merely an inquiry into the legal <br>sufficiency of the evidence, the standard of appellate review . <br>. . should be plenary."  Rodrguez, 858 F.2d at 12; see alsoAnderson, 862 F.2d at 916 (determination whether fact omitted <br>from special verdict form was material to the ultimate issues in <br>the case reviewed de novo); Connecticut Mut. Life Ins. Co. v. <br>Wyman, 718 F.2d 63, 65 (3d Cir. 1983) (trial court's decision not <br>to give instructions on a particular issue reviewed de novo); but <br>see United States v. Gmez-Osorio, 957 F.2d 636, 642 (9th Cir. <br>1992) (trial court's determination on issue whether required <br>factual foundation existed to warrant particular jury instruction <br>reviewed only for abuse of discretion). <br>     Wilson contends that the evidence presented at trial was <br>insufficient to allow a reasonable jury to find that he was <br>contributorily negligent or that the only cause of his injuries <br>was his violation of his duties as chief mate.  We disagree.  <br>Unlike at common law, in both Jones Act and unseaworthiness <br>actions, neither assumption of risk nor contributory negligence <br>are available as complete defenses to liability.  See Socony- <br>Vacuum Oil Co. v. Smith, 305 U.S. 424, 429-33 (1939).  Instead, <br>the admiralty doctrine of comparative negligence applies.  SeeJacob v. New York, 315 U.S. 752, 755 (1942).  This defense <br>requires, among other things, evidence that the seaman chose to <br>perform a task in a manner that placed him in danger despite the <br>fact that there were safer alternative means available to him.  <br>See Burden v. Evansville Materials, Inc., 840 F.2d 343, 346 (6th <br>Cir. 1988); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law  <br>6-22 at 324 (2d ed. 1994).  A finding of "contributory <br>negligence, however gross, is not a bar to recovery but only <br>mitigates damages," see Socony-Vacuum Oil Co., 305 U.S. at 431, <br>reducing the plaintiff's recovery in proportion to his or her <br>negligence.  Thus, contributory negligence can be a complete <br>defense when a jury finds that the plaintiff's own negligence was <br>the sole proximate cause of the injuries. <br>     The primary duty rule provides that a ship's officer may not <br>recover against his employer for negligence or unseaworthiness <br>when there is no other cause of the officer's injuries other than <br>the officer's breach of his consciously assumed duty to maintain <br>safe conditions aboard the vessel.  See Walker v. Lykes Bros. <br>S.S. Co., 193 F.2d 772, 773 (2d Cir. 1952).  In Boat Dagny, Inc.v. Todd, 224 F.2d 208, 210-11 (1st Cir. 1955), this circuit <br>explained that the primary duty rule does not bar recovery where <br>the plaintiff breached his duty but the ship's owner was also <br>independently at fault.   "Our decision merely followed the <br>self-evident proposition that not every breach of duty will <br>assign a seaman full responsibility for his injury."  Peymann v. <br>Perini Corp., 507 F.2d 1318, 1323 (1st Cir. 1974).  The primary <br>duty rule bars recovery only if there was no cause of the <br>officer's injuries other than the breach of duty.  "As Judge Hand <br>noted in Walker, the bar is not based on the contributory <br>negligence of the officer, but on a finding of no negligence of <br>the employer."  Kelley v. Sun Transp. Co., 900 F.2d 1027, 1031 <br>(7th Cir. 1990).   <br>     An instruction on comparative negligence must therefore be given <br>if the evidence establishes a genuine controversy as to whether <br>Wilson placed himself in foreseeable danger even though safer <br>alternatives were available, and whether his choice was the <br>proximate cause of his injuries.  Similarly, an instruction on <br>the primary duty rule must be given if the evidence establishes a <br>genuine controversy as to whether Wilson owed a duty to the <br>defendants, whether he breached the duty, and whether that breach <br>was the sole proximate cause of his injury.  See Peymann, 507 <br>F.2d at 1323.  We find that the evidence in this case was <br>sufficient to allow a reasonable jury to find either that Wilson <br>was contributorily negligent or that his injuries were caused <br>exclusively by his own failure to perform his primary duties. <br>     Evidence was presented at trial indicating that Wilson had not <br>been ordered to patch the hydraulic lines while the OVERSEAS <br>BOSTON was on the high seas.  Indeed, the captain testified that <br>it had been Wilson who had proposed that the lines be patched.  <br>He stated that the day prior to Wilson's accident, Wilson had <br>been in tank No. 2C patching another set of hydraulic lines on <br>the tank's aft bulkhead, near the bottom.  While conducting those <br>repairs, Wilson noticed that some of the lines on the forward <br>bulkhead were also leaking, but at a much greater height.  He <br>therefore ordered that the tank be filled overnight to the 65 <br>foot mark, so that he could patch the second set of lines the <br>following day.  In addition to the captain's testimony, the <br>defendants' expert testified that no reasonable chief mate would <br>have entered a tank that was filled so close to the deck when the <br>vessel was under way on the high seas, much less without wearing <br>a hard hat and life vest, because of the possibility that waves <br>could form in the tank as a result of the normal movement of the <br>ocean's surface.   <br>     Moreover, the plaintiff admitted that prior to this voyage, he <br>had never performed repairs inside a tank while the ship was on <br>the high seas.  He also admitted that he had the authority to <br>abort the operations at any point.  Finally, Wilson testified <br>that on the morning of January 19, 1994, when he first entered <br>tank No. 2C, he found the water level too high and thus ordered <br>it to be lowered an additional 12 to 18 inches.  It was not until <br>after the water level had been adjusted that he boarded the raft. <br>     The evidence presented at trial created a genuine issue of fact <br>as to whether Wilson had been contributorily negligent.  For <br>example, a reasonable jury could find that Wilson was acting <br>under his own authority when he decided to patch the hydraulic <br>lines, and that he was in control of the operation.  A jury could <br>find that Wilson should have known that entering a lightless tank <br>when the water level is less than 10 feet from the deck (and less <br>than 5 feet from the beams) and the ship is on the open sea could <br>put him in harm's way if the water level shifted, and that he <br>should have foreseen that the swells and waves on the ocean's <br>surface could cause the water inside the tanks to shift.  <br>Similarly, a jury could infer that Wilson knew that the repairs <br>were dangerous from his adjustment of the water level prior to <br>boarding the raft, and from his admission that he had never <br>performed this type of repair when the ship was outside of a <br>harbor.  A jury could also believe that the wave in the tank was <br>not caused by the vessel's course change, which would undermine <br>Wilson's claim that his injuries were causally related to the <br>defendants' negligence.   <br>     Finally, and most importantly, a jury could conclude that Wilson <br>was negligent because a safer course of action had been available <br>to him.  See Burden, 840 F.2d at 346.  A jury could find that it <br>was not necessary for the lines to be repaired while the ship was <br>at sea.  A jury could therefore find that Wilson could have <br>chosen to wait until the OVERSEAS BOSTON reached the port at <br>Valdez, Alaska, to perform the repairs on the hydraulic lines. <br>     This evidence, together with testimony indicating that Wilson's <br>duties as chief mate included responsibility for the safety and <br>maintenance of the ship, in general, and of the line patching <br>operation, in particular, also suffices to permit a jury to <br>conclude that the only proximate cause of Wilson's injuries was <br>his own failure to perform his duties as chief mate to maintain a <br>safe working environment.   <br>     Of course, we do not mean to imply that the evidence compels the <br>conclusion that Wilson was contributorily negligent or that he <br>was injured solely as a result of his violation of his duties.  <br>In fact, a jury could just as easily disbelieve all of the <br>testimony mentioned above, or draw different inferences from it.  <br>We merely point out that the evidence could have been believed by <br>a jury and could justify a finding that he had acted negligently.  <br>The defendants were therefore entitled to instructions on both <br>affirmative defenses.   <br>     Moreover, the district court's erroneous failure to charge the <br>jury on these issues was not harmless error.  See Fed. R. Civ. P. <br>61.  A compelling argument could be made that the failure to give <br>any instructions on a material issue is harmful per se, but, in <br>any case, the omission of these particular instructions was <br>clearly harmful.  The fact that the jury found for Wilson in this <br>case does not persuade us otherwise, because we are in grave <br>doubt as to whether the jury would have found that Wilson had not <br>been negligent at all, had the jury been instructed as it should <br>have been.  For example, even though the defendants provided <br>evidence at trial that Wilson's breach of his duty to ensure that <br>shipboard repairs are carried out safely was the sole cause of <br>his accident, the lack of an instruction on the primary duty rule <br>could have allowed the jury to ignore Wilson's own actions and <br>thereby to seek another explanation for his accident.  Similarly, <br>the lack of an instruction on comparative negligence permitted <br>the jury to find that the defendants were, in effect, 100% <br>comparatively negligent even though the evidence could support a <br>finding that Wilson was at least partially responsible for his <br>own injuries. <br>     Accordingly, a new trial is required so that a jury may properly <br>consider the plaintiff's actions along with the defendants' in <br>determining liability.  See Allen v. Chance Mfg. Co., 873 F.2d <br>465, 469-70 (1st Cir. 1989) (erroneous jury instruction requires <br>new trial if the error could have affected the result of the <br>jury's deliberations). <br>III.  Separability of issues on remand <br>     Wilson requests that, if the case must be remanded because of an <br>error in the instructions, the remand be limited to issues of <br>liability.  The defendants, on the other hand, contend that they <br>are entitled to a new trial on all issues, including damages. <br>     "An appellate court has broad discretion to remand for a new <br>trial on all, or only some, of the issues in the case."  Dopp v. <br>HTP Corp., 947 F.2d 506, 518 (1st Cir. 1991); see also Fed. R. <br>Civ. P. 59(a).  Normally, an order remanding a case for a new <br>trial should encompass all of the issues in the case, "unless it <br>clearly appears that the issue to be retried is so distinct and <br>separable from the others that a trial of it alone may be had <br>without injustice."  Gasoline Prods. Co. v. Champlin Refining <br>Co., 283 U.S. 494, 499-500 (1934).  The decision to remand a case <br>for a new trial on fewer than all of the issues thus depends not <br>only upon a finding that the issues are logically distinct, but <br>also upon considerations of equity and practicality. <br>     The question whether a plaintiff has suffered certain damages <br>does not generally depend, as a matter of law, on whether that <br>plaintiff is legally entitled to compensation for those damages.  <br>In this case, for example, the amount of future income that <br>Wilson may have lost as a result of his injuries is independent <br>of his legal claim to receive full, partial, or no compensation <br>for such damages.  In this regard, "comparative negligence is <br>regarded as a liability concept."  La Plante v. American Honda <br>Motor Co., 27 F.3d 731, 738 (1st Cir. 1994).  We have held that <br>the issues of liability, including issues of comparative <br>negligence, were in certain cases "so distinct and separable from <br>the damages issue[s] that a partial trial of the former [could] <br>be had without injustice."  Id.; see also Winn v. Lafayette Town <br>House, 839 F.2d 835, 836-37 (1st Cir. 1988); Calaf v. Fernndez, <br>239 F. 795, 799 (1st Cir. 1917).  In La Plante, for example, we <br>found particularly compelling the fact that "the trial judge <br>submitted detailed interrogatories to the jury, [so that] we <br>[knew] the jury's total damage award to the plaintiff, as well as <br>the amount discounted due to comparative negligence."  27 F.3d at <br>738.  Thus, on remand, "if the comparative negligence figures <br>[were] changed as a result of the new trial, the total damage <br>award [could] be adjusted accordingly."  Id. <br>     In theory, the amount awarded by a jury in the form of <br>compensatory damages should not be influenced by the jury's <br>findings as to liability.  Sometimes, however, the possibility <br>may arise that the jury's special verdicts on damages might have <br>encompassed some undisclosed compromise.  For example, a jury <br>could raise the amount of damages awarded if the jurors perceive <br>the plaintiff to be particularly deserving of their solicitude, <br>or the defendant particularly deserving of their opprobrium.  The <br>likelihood of this possibility occurring may increase when, as <br>here, the jury is given no instruction at all on comparative <br>negligence.  In such cases, it might happen that a jury could <br>understand the judge's decision not to instruct on comparative <br>negligence as an implicit indication that there was not enough <br>evidence of the plaintiff's contributory negligence to even <br>submit the question to them.  It is not unimaginable for a jury <br>to infer from the fact that there was no instruction on <br>comparative negligence that the award of damages should be <br>increased as an additional sanction. <br>     In the end, our decision as to the scope of our remand order is a <br>matter of judgment.  In this particular case, because of the <br>possibility that the jury might have been led by the lack of an <br>instruction on comparative negligence to increase the total award <br>of damages, and out of an abundance of caution, we order a <br>retrial of all issues in this case, including damages. <br>IV.  Conclusion <br>     Because we find that the district court's failure to instruct the <br>jury on comparative negligence and the primary duty rule was both <br>erroneous and prejudicial to the defendants' substantial rights, <br>we strike the verdict, vacate the judgment, and remand this case <br>for a new trial on all issues, including damages.  The request <br>for a remittitur is therefore moot.  No costs. <br></pre>

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