
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1391                                ERNEST L. SAMUELS and                                 RULING ANGEL, INC.,                               Plaintiffs, Appellants,                                          v.                           HOOD YACHT SYSTEMS CORPORATION,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Lynch, Circuit Judge,                                        _____________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Robert J. Murphy with whom Thomas E. Clinton and Clinton &  Muzyka            ________________           _________________     _________________        were on brief for appellants.            Thomas  M.  Elcock  with whom  Richard  W.  Jensen  and  Morrison,            __________________             ___________________       _________        Mahoney & Miller were on brief for appellee.        ________________                                 ____________________                                  November 21, 1995                                 ____________________                      ALDRICH,  Senior Circuit  Judge.    This  diversity                                _____________________            action  was brought in  the United States  District Court for            the  District  of  Massachusetts  by  Ernest  L.  Samuels  of            Ontario, Canada,  and Ruling Angel, Inc.  of Delaware, owners            of  the sailing  yacht RULING  ANGEL, claiming  negligence by            Hood  Yacht  Systems  Corp.   (Hood)  of  Rhode  Island,  the            manufacturer of her mast.  The mast broke while the yacht was            under  sail.1   The incident  occurred off  the coast  of St.            Croix, Virgin Islands, with wind at 25-30 knots, and seas 6-8            feet, which  the yacht's captain testified  was within normal            Caribbean weather.  The mast broke in two, which her captain,            testifying  to the  obvious, said  should not  have happened.            However, at  the close of plaintiffs' case  the court granted            Hood's motion for a directed verdict.  Plaintiffs appeal.  We            reverse.                      In addition to conceding normal weather Hood agreed            there was no evidence of mishandling.   The captain testified            that  the rigging  was sound,  and  had not  failed.   So did            plaintiffs' expert, Hadley.   Although there was a suggestion            that, before  designing  the mast,  Hood  had been  given  an            understatement  of  the  vessel's  weight,  Hadley,  a  naval            architect, testified that her "righting moment," the vessel's                                            ____________________            1.  Strictly,  she was under sail and power, in order to head            higher into the wind and clear the land ahead.                                         -2-            ability  to stand up to  wind pressure, and  a determinant of            the needed strength of her mast, would have been the same.2                      The  court's decision  hung  on its  resolution  of            plaintiffs' expert's testimony.  (Emphasis ours, see post.)                                                                 ____                      THE COURT.  The question is, what is your                      opinion as to what caused it?                      HADLEY.  My opinion is there was cracking                      in [the mast] that could not be resisted.                      The  mast  itself  is a  barely  adequate                      _________________________________________                      design  structurally.    There . . .  was                      ____________________                      movement in  the mast . . . fore and aft,                      excessive  movement  fore  and aft,  that                      could have caused these cracks.                                       . . . .                            The  mast  was  a   barely  adequate                      design, and that any kind of crack, which                      I  believe  existed  at  the  time, could                      cause that mast to break.                      Further  examined  by   plaintiffs'  counsel,   Mr.            Clinton,  the  witness complained  of imperfect  placement of            screw  fastenings leading the mast to crack.  The court again            inquired:                      THE  COURT.   It's my  understanding that                      . . .   the  dismasting   . . .  occurred                      because of two factors:  One, the cracks,                      as you've displayed to the jury.                      A.  Yes.                      THE COURT.  And a marginal[                                                 3]                                                    what?                                      __________________                                            ____________________            2.  The force of this testimony is borne out by the fact that            when  Hood made  a  replacement mast,  and  clearly knew  the            vessel's weight, it did not make a heavier one.            3.  The  word  "marginal"  seems  to have  been  the  court's            interpretation of "barely adequate."                                         -3-                      A.  Factor of safety . . . the design was                          ________________                      barely adequate . . . it was barely large                      enough  to perform the  task that  it was                      asked to do.                                       . . . .                      THE  COURT.   So  what you're  saying is,                      there's two factors, one is the cracks as                      described.                      A.  Yes.                      THE  COURT.   And the  other is  that the                                    ___________________________                      mast itself was too --                      ___________________                      A.  Too light.                          _________            There followed a recapitulation  by the witness in  which the            term  "barely adequate"  again occurred, ending  with further            questioning by the court.                      THE COURT.  . . . What caused the cracks,                      did you say?                      A.     I  believe  that  this  excess  of                      movement which  would be existent  in too                      light a spar could cause these cracks.                                       . . . .                      THE COURT.   So ultimately you're  saying                                   ____________________________                      that the spar was too light for the ship?                      ________________________________________                      A.  Yes.                      THE COURT.   All right.  And if  the spar                                   ____________________________                      was too light for the ship, it means that                      _________________________________________                      it's  not  only  not  --  that  it's  not                      _________________________________________                      marginally  well  constructed,  but  it's                      _________________________________________                      poorly constructed?                      __________________                      A.   It  was too  marginal for  the ship,                           ____________________________________                      considering the service it  was to be put                      _________________________________________                      into, yes.                      _________                                         -4-                      This last is an  interesting statement:  for RULING            ANGEL's "service," cruising, there  is a different, a greater            margin of safety needed than for  racing.  This point was not            pursued,  but is  it  not  the  racers  who  crack  on  sail,            regardless?    That  cruisers  need a  greater  margin  is  a            recognition that not just wind and weather, but other matters            as  well, require a reservoir  of protection.   Lack of care,            wear  and tear  with no  repair, for  example, are  ills that            cruisers,  not   needing  to  be  kept  up  to  scratch,  may            particularly  suffer from.  The fact that it was not wind and            weather,  but some  other  weakness by  which RULING  ANGEL's            margin of safety was  exceeded, should not affect plaintiffs'            case.   Nor is it material  that the ill  was not identified.            This must be omnibus protection, or it would be meaningless.                      Following this, Hood  moved that Hadley's testimony            be stricken  because counsel's answer to  an interrogatory as            to what Hadley would testify was given before Hadley had been            consulted,  and hence was  a fraud on  the court.   Also Hood            complained  because the  answer  omitted cracks.   The  court            sustained the latter complaint.                           His testimony is stricken just as to                      his  testimony  regarding  the  crack  as                      causing, as being  one of the  causations                      of the dismasting . . .  the rest of  his                      testimony    may     stand    for    your                      consideration.                                         -5-            Hood did not object; nor has it appealed.  It cannot complain            now.4                      Thereafter Hadley's final cross-examination by Hood            was as follows:                      Q.  Just  so we're clear, you  too are of                      the opinion that it was okay to put [this                      mast] on, barely okay, but okay?                      A.   If this  were my  design and I  were                      specifying  a mast  to Hood, I  would not                      specify  [this  mast].    It   is  barely                      adequate.      I  would   recommend,  for                      example, I said the factor of  safety was                      about  one-and-three  quarters,  I  would                      recommend  a safety of more like two-and-                      a-quarter.                      Q.   No  question, people  did.   But you                      agree it's not dangerous, you agreed this                      was adequate?                      A.  Barely, yes.                      Q.  And you said so in the --                      A.  Yes.                      Q.  Nothing else.                      MR. CLINTON.  No further questions.                      When, at the close  of plaintiffs' case, Hood moved            for directed verdict the court ruled as follows:                      THE COURT.   . . . [I]t seems  to me that                      if  . . . the  basis  ultimately for  the                      damages   was   the   alleged   defective                      manufacture  and/or  design of  the mast,                                            ____________________            4.  There was  no fraud  on the  court, in  any event.   See,                                                                     ___            Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)            _____    _______________            ("fraud on the court"  consists of "unconscionable scheme" to            interfere  with  judicial  system's  ability   to  adjudicate            properly).                                         -6-                      your  witness said that it was marginally                      appropriate,  or  words  to that  effect.                      How does it get to the jury?                      MR.  CLINTON.    Everybody else  said  he                      wouldn't have  put  it on  the  vessel[5]                      . . . .    We  also  . . .  have  implied                      warranty                                       . . . .                      THE  COURT.   He  said it  was marginally                      good.   I'm going to grant  the motion on                      that basis.            The Appeal6            __________                      Manifestly this  ambivalent  witness had  not  been            prepared.   Even after the perspicacious  court's questioning            had straightened him  out (see emphasized testimony,  supra),                                                                  _____            on final cross he  lapsed back.  Nor did  plaintiffs' counsel            get the  message.   Small wonder  a  frustrated court  called            Enough.  However, should it have?                      Hadley's  testimony  ran  two ways.    Omitting the            final  cross,  a  careful   reading,  ante,  with  particular                                                  ____            attention to  the emphasized portions, and  special attention            to where  the court's question begins,  "So ultimately you're            saying . . . ." would warrant a finding that in the witness's            opinion the design was (barely) sufficient in itself, but too                                            ____________________            5.  Putting  it  bluntly,  nothing  that  anybody  else  said            advanced plaintiffs' case.            6.  Hood cites no authority supporting its contention that we            should look to  Virgin Island law  because of the  fortuitous            circumstance that  the vessel  was in that  jurisdiction when            the negligent  design manifested  itself.  For  such lack  we            stay within the forum.                                         -7-            light  -- slight  --  in the  sense  of  there was  added  an            insufficient  margin of safety for  this ship.   Then, in the            last cross, he took it all back.                      Plaintiffs,   however,  were  not  bound  by  their            expert's  reversal; the  jury was  free to  choose.   Lane v.                                                                  ____            Epinard, 318 Mass. 664, 63 N.E.2d 463 (1945) is an articulate            _______            example.  Plaintiff sued for breach of a contract to hire her            as  a housekeeper.  Defendant  testified that this  was to be            only  if his  present housekeeper  decided to leave,  and she            decided  not  to.   Plaintiff  testified  that defendant  had            agreed he would discharge her.  Plaintiff also testified that            defendant  had not agreed to discharge her.  In affirming the            trial  court's denial  of defendant's  motion for  a directed            verdict the court said,                           The    plaintiff's   testimony    is                      contradictory  in  many  respects and  is                      inconsistent  in  reference  to  material                      aspects of her  case.   . . .   The  jury                      . . .  could accept such  portions of her                      testimony  as  they   deemed  worthy   of                      credence.            318 Mass. at 666, 63 N.E.2d at 465.                      Where  a party  testifies finally  against her  own            interest  she will normally be bound thereby.  See O'Brien v.                                                           ___ _______            Harvard Rest. &  Liquor Co.,  310 Mass. 491.  493, 38  N.E.2d            ___________________________            658,  659 (1941) (citing cases).7   A party,  however, is not                                            ____________________            7.  We  note  that  the  Lane  court  did  not  consider  the                                     ____            chronology of  the plaintiff's conflicting  testimony and may            have been generous in this respect.                                         -8-            bound by her witness' unfavorable testimony if there is other            evidence.  See Lydon  v. Boston Elevated Ry., 309  Mass. 205,                       ___ _____     ___________________            206,  34 N.E.2d  642, 644  (1941), and  cases cited.   It  is            rudimentary  that a  witness  may  be  believed in  part  and            disbelieved in part.  Id. at 206, 211, 34 N.E.2d at 644, 646.                                  ___            Where Hadley  was self-contradictory, the jury  could believe            whichever account it chose.                        To  repeat,  in  spite  of  Hadley's  final  cross-            examination,  the  jury  could  have  accepted   his  earlier            testimony that the mast's  design was too light in  the sense            that it did  not provide a sufficient margin of  safety for a            cruising   yacht.     A   directed  verdict   for  Hood   was            inappropriate.                      Reversed.                      ________                                         -9-
