                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1105

                     MICHAEL JOHNSON, ET AL.,

                     Plaintiffs - Appellants,

                                v.

               NATIONAL SEA PRODUCTS, LTD., ET AL.,

                     Defendants - Appellees.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]
                                                            

                                           

                              Before

                     Torruella, Selya and Cyr

                         Circuit Judges.
                                       

                                           

     Joseph G. Abromovitz, with whom Marsha A. Morello, George F.
                                                                 
Leahy and Abromovitz &amp; Leahy, P.C., were on brief for appellants.
                                  
     Brian P.  Voke, with whom  Richard P. Campbell,  Kathleen M.
                                                                 
Guilfoyle, Campbell  &amp; Associates,  P.C., David T.  DeCelles, and
                                                            
Avery, Dooley, Post &amp; Avery, were on brief for appellees.
                           

                                           

                        September 20, 1994
                                           

          TORRUELLA, Circuit Judge.  Appellants Michael and Kelli
                                  

Johnson ("plaintiffs")  filed an  action alleging  negligence and

breach of warranty against defendant National Sea Products, Ltd.,

in connection  with  injuries that  Michael  Johnson  ("Johnson")

suffered when a pallet of  frozen fish fell upon him.   At trial,

the jury found in favor of the defendant on the negligence claim.

The court directed  a verdict  for the  defendant on  plaintiffs'

breach of warranty  claim.   Plaintiffs ask this  court to  grant

them  a  new  trial due  to  errors  allegedly  committed by  the

district  court.  Plaintiffs also  ask this court  to reverse the

district  court's order  directing  a verdict  on  the breach  of

warranty claims.  We affirm the district court in all respects.

                                I.

                            BACKGROUND

          On  May 19,  1989, Michael  Johnson was injured  when a

pallet  loaded with boxes of frozen cod fillets ("the fish") fell

on him while he was working as a stock-loader at Condyne, Inc., a

public warehouse  in  Avon, Massachusetts,  which  stored  frozen

foods.

          National Sea  is a Canadian corporation  engaged in the

business of harvesting, processing  and distributing fish.  Among

their many products  are Hi-liner cod  fillets which are  frozen,

packed  in sealed plastic  containers, placed in  boxes, and then

packed into "master cartons" for shipment.  Before being shipped,

National Sea piles the master cartons on several 40" x 48" wooden

pallets  and applies a plastic  stretch wrap to  hold the cartons

                               -2-

together and to keep them from falling off the pallet.

          National Sea consists of two corporations: National Sea

Products, Ltd.,  a Canadian  company, and National  Sea Products,

Inc., a United States  company.  The Canadian corporation  is the

parent  company, and the  United States  corporation is  a wholly

owned subsidiary.   These corporations are, in turn, divided into

several operating units, among which is Canada Products-Corporate

Sales   ("Canada  Products"),   a   division   of  the   Canadian

corporation, with responsibility for servicing major accounts.  

          One of  Canada Products'  major accounts was  Long John

Silver, also known as Jerrico, Inc., which was expected to be the

purchaser of  the  fish involved  in  this case.    The fish  was

processed  and packaged  according to specifications  provided by

Long John Silver and the  cartons were placed on the pallets  for

shipment  according  to  Long John  Silver's  specifications  for

pallet configuration,  which required that each  layer have eight

cartons and that there be five layers on the  pallet.  Sometimes,

for storage  at its  Lunenburg, Nova  Scotia plant,  National Sea

uses a different pallet  configuration for these cartons, placing

them ten cartons to a layer, three layers high.

          Although the fish involved  in this case were prepared,

packaged   and  placed   on   pallets  to   Long  John   Silver's

specifications, in  anticipation of a possible  order, there was,

at  the time of Johnson's accident, no  order by Long John Silver

for these fish.

          The  fish in  question were  shipped from  the Canadian

                               -3-

corporation  to  Canada  Products   care-of  the  Condyne  public

warehouse.   Generally, when the  shipment arrives at  Condyne, a

bill   for  storage  is  generated  and   sent  to  the  American

corporation,  which enters  the shipment  in its  records  and is

responsible  ultimately  for  paying   the  storage  bill.    The

ownership  of the goods does not  pass, however, until the end of

the month when there  is an intercompany financial reconciliation

of  all  transferred  products.   Ultimately,  Long  John  Silver

purchased  the fish  in question.   The  fish, however,  were not

purchased or  shipped to  Long  John Silver  until the  following

month, long after the accident. 

          When  the  shipment of  fish  arrived  at Condyne,  the

Condyne  receiver  ordered  the  truck  driver,  an  employee  of

Carleton  County Brokerage, Ltd.,1  to remove the  top layer from

each  of the  pallets,  reducing them  to  four layers  of  eight

cartons each,  and to make up  new pallet loads with  the removed

boxes.   Apparently this was done  so that the pallet loads would

fit into Condyne's rack  storage system.  After the  truck driver

had  reconfigured the boxes on  the pallets, the  shipment was 22

pallet loads instead of the original 17.

          Rather  than  placing  the  fish in  the  rack  storage

facilities,  however,  Johnson, using a forklift, bulk stacked or

                    

1   Plaintiffs' original suit included Harold B. Legge Transport,
Ltd. as  trucking agent for  National Sea.   Subsequent discovery
revealed that Legge had contracted with Carleton County Brokerage
Ltd. to ship the subject  load.  Hence, Carleton was added as   a
direct defendant.   During  the course of  trial, plaintiffs  and
Carleton settled.

                               -4-

free  stacked  the  fish by  piling  one pallet  load  on  top of

another, four pallet loads high with a fifth pallet load spanning

the gap  between each stack of  four.  Each pallet  load was four

feet  high, and weighed over  one ton.   Johnson was piling these

heavy loads 16 to 20 feet high.

          Johnson  testified  that the  accident  occurred as  he

stacked the  pallet loads four and five loads high.  He testified

that as  he attempted to move the two highest pallet loads in the

stack, the top  pallet fell.   Johnson jumped from the  truck and

ran,  but was hit by the pallet load.  There is no evidence as to

whether the pallet which fell had been configured by National Sea

or by Carleton's driver.

          In  his suit,  Johnson  alleged that  National Sea,  as

seller of the fish,  packaged the fish in an  unstable palletized

configuration rather than National  Sea's own recommended 3 x  10

configuration.   The method of stacking by National Sea created a

condition referred to  by the witnesses as "pyramiding"  when the

pallets  of fish were bulk stacked, i.e., one pallet stacked atop
                                        

another, four or five pallets high.

          The trial  in the district court  commenced on November

29,  1993.   Much  of the  trial  concerned whether  National Sea

should have foreseen that the pallet loads  of fish would be bulk

stacked four  or five loads high rather than stored in racks.  It

was undisputed  that the pallet  configuration of the  cartons of

fish  was entirely safe for  rack storage and  that Johnson would

not  have been  injured if  the pallet loads  had been  placed in

                               -5-

racks at Condyne.  

          Following the close of the evidence, the district court

judge granted  National Sea's motion  for a  directed verdict  on

plaintiffs'  breach of warranty counts  because it found that the

goods had  not  reached an  ultimate consumer  and therefore,  no

warranties attached.  On  December 16, Rule 49(b) interrogatories

were submitted to the jury.  

          The jury  answered the  following interrogatory  in the

negative, thereby  precluding further response to  the subsequent

interrogatories and disposing  of the case  in favor of  National

Sea:

            Was  it  reasonably  foreseeable  by  the
            Defendant,  National  Sea Products,  Ltd.
            that the pallet  loads in question  would
            be  stacked  at  Condyne  Freezers  by  a
            forklift truck one on top of another to a
            level of four/five pallet loads high?

          On appeal, the plaintiffs contend that: 1) the district

court  erred in  granting  National Sea's  motion for  a directed

verdict  as  to the  plaintiffs'  breach of  warranty  claims; 2)

statements made  by defense counsel during  closing argument were

improper and resulted in reversible error; and 3) the court erred

in  instructing  the  jury on  the  issue  of foreseeability  and

defective design.

                               II.

                            DISCUSSION

                  A.  Breach of Warranty Claims
                                               

          The plaintiffs claim that  Michael Johnson was entitled

to  benefit  from  warranties  of merchantability  and  that  the

                               -6-

district  court  erred in  dismissing  their  breach of  warranty

claims.  Under Massachusetts  law, "a warranty of merchantability

is implied in two situations: (1) when title  to goods passes for

a  price, and (2) when a contract  is made for the future passing

of  title  to goods  for  a  price."    Mason v.  General  Motors
                                                                 

Corporation, 397 Mass. 183, 187-88, 490 N.E.2d 437, 440 (1986).
           

          Plaintiffs have not presented any evidence showing that

there was a sale of goods, or any contract for sale, particularly

one  involving  themselves.   Therefore,  we  need not  determine

whether Johnson was  a member of the class of persons entitled to

benefit from any warranties  of merchantability that might attach

to a sale of the fish.   

          There was  no  evidence  of a  sale  of  goods  between

National  Sea  and  Long  John  Silver.    Rather,  the  evidence

indicates  that at the time of the accident, Long John Silver had

not  yet placed an order for these  fish, and that the fish might

have been sold to anyone.  There was no contract for sale between

National  Sea and Long John Silver: no price had been determined,

no delivery date had been set, and no quantity or other terms had

been specified.

          Nor  was there  a sale  or contract  for sale  from the

National  Sea parent to the  United States subsidiary.   The fish

were owned, at the  time of the  accident, by Canada Products,  a

division of the Canadian  corporation.  The fish could  have been

sold at the end of the month to the United  States corporation at

a price  to  be determined  at  that time,  but  that was  not  a

                               -7-

certainty.   Instead,  the fish  might have  been disposed  of or

returned  to  Canada   prior  to  any  transfer.     Under  these

circumstances,  absent any sale of  the fish or  contract for the

sale  of  the fish,  no  warranty of  merchantability  could have

attached.  

          A directed verdict is appropriate where the evidence is

such   that  a  reasonable  person  could  be  led  to  only  one

conclusion, namely, that the moving party is entitled to judgment

as   a  matter  of  law.    Luson  Int'l  Distributors,  Inc.  v.
                                                             

Fabricating &amp; Production Machinery, Inc., 966 F.2d 9, 10-11  (1st
                                        

Cir.  1992).    Therefore, the  district  court  did  not err  in

directing a verdict on this issue.

              B.  Defense Counsel's Closing Argument
                                                    

          As grounds for a new trial, the  plaintiffs charge that

National Sea's counsel, Mr. Richard Campbell, engaged in improper

arguments  in  two respects.   First,  the plaintiffs  argue that

Mr. Campbell referred to supposedly excluded  evidence, that this

reference  prejudicially  influenced  the  jury,  and   as  such,

constituted reversible  error.  In his  closing argument, counsel

argued that National  Sea did  not learn that  their product  was

being bulk stacked  on top of another,  four or five  high, until

representatives  of  National  Sea,   Morgan  Palmer  and  Walter

Waldrop, went to Avon  after the accident  in August, 1989.   Mr.
Campbell told 
the jury:

            So National Sea  Products never was  told
            that  this stuff  was being  bulk stacked
            one  pallet on  top  of another.   Never.
            National Sea Products  didn't learn  that

                               -8-

            these pallets were being bulk stacked one
            on  top of  another,  four or  five high,
            until  Morgan  Palmer and  Walter Waldrop
            went   down  to  Avon  in  August,  1989.
            August, 1989.

          Plaintiffs'  counsel  immediately   objected  to   this

reference,  contending that  such  testamonial evidence  had been

excluded by  the court.  Following plaintiffs' objections to this

statement, Mr. Campbell  made efforts  to remind  the judge  that

evidence of these facts was not entirely excluded.  Despite these

efforts, the court gave the following "curative" instruction:

            [T]he Court's recollection is  clear that
            the evidence was excluded.  But I'll tell
            the jury:    You might  have a  different
            recollection.   You  may have  heard that
            statement in the  course of the testimony
            of the  witness, in  which event  you may
            consider it.  If, on the other hand--it's
            my   recollection   and   that   of   the
            plaintiff's   counsel   that  the   Court
            excluded  it for the basic reason because
            it happened subsequent  to the  accident.
            That was the basis of the Court's ruling.
            And I do believe it was excluded.

          Plaintiffs  contend  that  the  trial  judge's curative

statements were not sufficient to erase the prejudicial effect of

defense counsel's  reference to the excluded testimony.   We need

not determine whether the curative instructions were satisfactory

because our review of  the record reveals that this  evidence was

not excluded by  the court and  therefore, the defense  counsel's

argument was not inappropriate.

          During   Morgan   Palmer's  testimony,   the  following

exchange took place:

            Q.  Sir,  in May, prior to May  19, 1989,
            what was your  understanding with  regard

                               -9-

            to  how  National Sea  Products Limited's
            product  was  being  stored at  the  Avon
            facility of Condyne?

            A.  It was being put into racks.

            Q.  Did  there come a time, sir, when you
                                                     
            learned  that the  product was  not being
                                                     
            stored in racks?
                           

            A.  In August --

            MR. LEAHY:  Objection.
                                 

            THE COURT:  Excuse  me.  The objection is
                                                     
            overruled  in  the  sense  that  you  can
                     
            answer the  question, "Yes, there  came a
            time," and then there will be a question.

            Q.  Let me try again.
            Did there  come  a time,  sir,  when  you
            learned   that   National  Sea   Products
            Limited's products were not  being stored
            in racks at the Avon facility of Condyne?

            A.  Yes.
                   

            Q.  When was that?

            A.  That was in August of 1989.
                                          

            MR. LEAHY:  Objection.
                                 

            THE COURT:  Excuse me?

            MR. LEAHY:  Objection.
            I noted an objection.   He said August of
            1989,  and  that's  post  accident,  your
            Honor.

            THE COURT:   He answered the question and
            the answer may stand.
                                

            Q.  Can you tell  the jury, sir, what the
            circumstances were by  which you  learned
            that the product was being stored outside
            of a rack at  the Avon facility in August
            of 1989?

            MR. LEAHY:  Objection.

            THE COURT:  Objection sustained.

                               -10-

            Q.   Did  you personally  visit the  Avon
            plant in August of 1989?

            A.  Yes.

(emphasis added).

          Thus, while the court  excluded certain observations as

post-accident,  it clearly  admitted  testimony  indicating  that

National  Sea first learned its products were not being stored in

Condyne's racks in August  of 1989 and that Morgan Palmer went to

Condyne's  plant in August  of 1989.  Its  rulings in this regard

have  not been challenged on appeal.  Because this case concerned

only two types of storage: storage  in racks or bulk stacking, it

was  reasonable to infer from  the evidence admitted  that if the

products were not  being stored  in racks, they  were being  bulk

stacked.

           The  trial judge  had  broad discretion  to deal  with

supposed improprieties in closing  arguments, and absent an abuse

of  discretion,  we will  defer  to his  or her  actions  in this

regard.   Gonz lez-Mar n  v. Equitable  Life Assurance  Soc., 845
                                                            

F.2d  1140,  1147-48  (1st Cir.  1988).    Far  from abusing  his

discretion, the  trial judge  in this  case  gave an  unnecessary

curative instruction,  which if anything, could  have caused harm

to the defendants, not the plaintiffs.

          The  plaintiffs  point  to another  allegedly  improper

aspect of Campbell's closing argument, which they raised for  the

first  time in  their post-trial  motion for  a new  trial.   The

plaintiffs claim  that  Mr.  Campbell  displayed to  the  jury  a

Condyne brochure which was  not in evidence to show  that Condyne

                               -11-

promoted its rack storage facilities.  A review of the transcript

of Mr. Campbell's closing argument,  however, does not reveal any

objection  on  behalf of  plaintiffs  to  this alleged  brochure-

waiving.   Since a timely  objection was not  made, the issue was

not preserved  for appeal.   See Doty  v. Sewall, 908  F.2d 1053,
                                                

1056  (1st Cir. 1990).  Our  review is therefore limited to plain

error.  Id. 
           

          Our  review of the record does not reveal any statement

indicating that  a Condyne brochure of  promotional materials was

displayed  before the  jury.    Mr.  Campbell also  submitted  an

affidavit  in response to the plaintiffs' motion for a new trial,

that denies that any  brochure was shown  to the jury during  his

closing argument.  Because there is absolutely no evidence in the

record that  the alleged brochure waiving  actually occurred, nor

any  objection   on  behalf  of  the  plaintiffs,  we  find  that

plaintiffs' claim has no merit.  

             C.  Jury Instructions on Foreseeability
                                                    

          The  plaintiffs  complain  that  the  court   erred  by

refusing to  charge the jury with their  requested instruction in

Request Number 55.  Request Number 55 stated:

            a manufacturer  has a duty  to anticipate
            the  environment  in  which   it's  [sic]
            product   will  be  used  and  to  design
            against  the reasonably  foreseeable risk
            attending  the  products  used   in  that
            setting.

          The  plaintiffs contend  that the  product  in question

included not only the  frozen fillets of fish packed  within each

box but also the method by  which National Sea stacked the  boxes

                               -12-

of  frozen fish  one atop another  and then  stretch-wrapped each

pallet for shipment.  Plaintiffs argue that it was foreseeable to

National Sea that the  product would be bulk stacked  at Condyne.

They  maintain  that National  Sea,  therefore,  had  a  duty  to

anticipate  that the product would be bulk stacked at Condyne and

to design  their product in  a manner that took  into account the

alleged   reasonably  foreseeable   risks   of   bulk   stacking.

Plaintiffs contend that whether National Sea fulfilled its duties

in this  respect was an issue that  should have been submitted to

the jury and that no other  part of the court's charge  addressed

this particular claim.

          "An error in jury instructions will warrant reversal of

a  judgment  only  if  the  error  is  determined  to  have  been

prejudicial,  based on a review of the record as a whole."  Davet
                                                                 

v. Maccarone,  973 F.2d 22,  26 (1st Cir  1992).  We  examine the
            

jury instructions to determine "whether they adequately explained

the law  or whether they tended to confuse or mislead the jury on

the  controlling issues."    Id. at  26  (internal quotation  and
                                

citation omitted).

          We do not  find reversible error in  the court's charge

to the  jury.  In  the present case,  the alleged defect  was the

manner in which cartons of fish were stacked on the  pallet.  The

plaintiff bears the burden  to show that  his use of the  product

was a foreseeable one,  regardless of whether or  not it was  the

intended use of the product, and "[w]here there is no foreseeable

use, there is no liability."  Allen v. Chance Mfg. Co., 398 Mass.
                                                      

                               -13-

32, 34, 494 N.E.2d 1324, 1326 (1986).

          The court charged  the jury on the  subject of National

Sea's   obligation  to   consider   the  reasonably   foreseeable

circumstances  and foreseeable dangers  involved in the packaging

and palletizing of its product, and to  guard against foreseeable

harm as follows:

              "Ordinary care" is not an absolute term
            but a  relative one;  that is to  say, in
            deciding   whether   ordinary  care   was
            exercised in a given case, the conduct in
            question must  be viewed in the  light of
            all  the   surrounding  circumstances  as
            shown by the evidence  in this case.  The
            amount of care  exercised by a reasonably
            prudent person will vary in proportion to
            the danger  known to be involved  in what
            is being  done, and it  follows that  the
            amount of caution required  in the use of
            ordinary care will  vary with the  nature
            of   what's  being   done  and   all  the
            surrounding  circumstances  shown by  the
            evidence in the case.   To put it another
            way: As the danger that should reasonably
            be  foreseen increases, so  the amount of
            care required by the law increase[s].

              Bringing those principles closer to the
            facts of this case, the defendant was not
                                                     
            required  to  package  and palletize  its
                                                     
            cartons in a way  that made them accident
                                                     
            proof  or  even to  package  or palletize
                                                     
            them  in the  safest  possible way,  but,
                                                     
            rather, to package and palletize  them in
                                                     
            a  manner  that is  reasonable  under the
                                                     
            circumstances.  Its duty was, rather, one
                                                     
            of  reasonable  care  to protect  against
                                                     
            foreseeable harm.
                            

(emphasis added).

          This   instruction   was   accurate  and   no   further

instructions  were required  by  law.   Because the  instructions

"show  no tendency to confuse or mislead the jury with respect to

                               -14-

the applicable principles of law," they are satisfactory and must

be upheld.  Harrington v. United States, 504 F.2d 1306, 1317 (1st
                                       

Cir. 1974).

          Affirmed.
                  

                               -15-
