                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                         F I L E D
              UNITED STATES COURT OF APPEALS
                       FIFTH CIRCUIT                       July 20, 2005

                                                     Charles R. Fulbruge III
                                                             Clerk
                       No. 04-30484
                     Summary Calendar


          BERGERON MARINE SERVICE, INC.; ET AL.,

                                                     PlaintiffS,

 GULF COAST DOCKSIDE, INC.; ALBANY INSURANCE CO.; AMERICAN
   EMPLOYERS’ INSURANCE CO.; FIREMANS FUND INSURANCE CO.;
RELIANCE INSURANCE CO.; ROYAL INSURANCE COMPANY OF AMERICA;
    COMMERCIAL UNION INSURANCE GROUP; GENERAL COLOGNE RE,

                                        Plaintiffs-Appellants,

                          versus

               FEMCO MACHINE COMPANY, INC.,

                                             Defendant-Appellee.


               MICHELLE CAMPO, ETC.; ET AL.,
                                                     Plaintiffs,

                          versus

           FEMCO MACHINE COMPANY, INC.; ET AL.,

                                                     Defendants,

               FEMCO MACHINE COMPANY, INC.,

                                             Defendant-Appellee,

                          versus

                GULF COAST DOCKSIDE, INC.,

                                          Defendant-Appellant.
             Appeal from the United States District Court
                 for the Eastern District of Louisiana
                            (2:00-CV-3436-M)
                            (2:00-CV-2327-M)



Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     Gulf    Coast     Dockside,   Inc.,    and   its   partially     subrogated

insurers (collectively Gulf Coast) appeal from a jury verdict

finding Gulf Coast solely responsible for the incident underlying

this action.         Gulf Coast bases reversible error on the jury

instructions.

     On 22 November 1999, a “Docksider” crane engaged in Gulf

Coast’s     stevedoring    operations       collapsed    and   fell    into   the

industrial     canal    adjacent   to   Gulf   Coast’s    facilities     in   New

Orleans, Louisiana.       Approximately 17 months earlier, Gulf Coast

had bought the crane from Femco Machine Co., which had refurbished

the crane and resold it as fully rebuilt and reconditioned.

     Through this action for redhibition against Femco, Gulf Coast

seeks return of the crane’s purchase price.              Gulf Coast asserts:

at the time of sale, the crane contained non-apparent defects in




     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                        2
the load-bearing component of the crane’s base; and these defects

caused, in whole or in part, the collapse.

     At the jury trial, Femco asserted that the crane’s collapse

was due partly to Gulf Coast’s routine overloading of the crane

beyond its load limit and partly by the “shock loading” of the

crane caused by an inexperienced crane operator, who, on his very

first load, dropped a bucket of barite and then tried to catch it

in mid-air before it hit the ground.   (This incident immediately

preceded the collapse of the crane.)   Gulf Coast admits that the

crane operator contributed to the collapse.

     The district court instructed the jury that, if it found both

parties partially at fault, it was to apportion the percentage of

responsibility between the two parties.       The jury returned a

verdict finding Gulf Coast solely at fault.     The district court

entered judgment on 12 April 2004, dismissing Gulf Coast’s claim

with prejudice.

     Gulf Coast contends the district court committed reversible

error by giving jury instructions which failed to instruct jurors

clearly as to the principles of law applicable to the factual

issues of the case.   A challeged jury instructions is reviewed

under a two-prong standard:

          First, the challenger must demonstrate that
          the charge as a whole creates substantial and
          ineradicable doubt whether the jury has been
          properly guided in its deliberations. Second,
          even if the jury instructions were erroneous,
          we will not reverse if we determine, based

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             upon the entire record, that the challenged
             instruction could not have affected the
             outcome of the case.

Pelt v. U.S. Bank Trust Nat. Ass'n, 359 F.3d 764, 767 (5th Cir.

2004) (emphasis added; citing Johnson v. Sawyer, 120 F.3d 1307,

1315 (5th Cir. 1997)).         As discussed below, we need not reach the

second prong.

      Gulf    Coast    bases     reversible      error    on     the   following

instruction, which provided, inter alia, that:

                    Thus, for Gulf Coast Dockside to prevail,
             you   must find it is more likely than not that
             the   accident was caused by a defective crane
             and   that no intervening circumstances caused
             the   accident.

                    ....

                  Femco is exempted from the warranty of
             redhibition if you find that Gulf Coast
             Dockside abused, neglected, improperly used or
             maintained the crane and that this mis-use or
             neglect was the proximate cause of the
             accident.   Femco has the burden of proving
             that this mis-use was an intervening proximate
             cause of the accident.

Gulf Coast contends:       this instructs the jury to find for Femco if

it   finds   overloading    the    crane   the    day    of    the   accident   an

“intervening proximate cause” or “intervening circumstance”, even

if it also found that pre-existing defects in the crane also caused

the accident; and this potentially created confusion among the

jurors because it conflicts with the court’s other instructions to

apportion fault between the parties if the jury finds both at

fault.

                                       4
     Pursuant to the above-described two-prong standard of review,

we must first determine whether “the charge as a whole creates

substantial and ineradicable doubt whether the jury has been

properly guided in its deliberations”.      Pelt, 359 F.3d at 767.      The

paragraph immediately following the challenged instruction states,

inter alia:

           It is your role as jurors to determine what
           caused this accident.     Gulf Coast Dockside
           asserts that the crane was defective. Femco
           asserts   that   the   crane   was   routinely
           overloaded and misused, and was being misused
           at the time of the accident.     You may find
           that one of these alleged causes was the
           exclusive cause of the accident or you may
           find that the accident was caused by a
           combination of these or other factors. If you
           find that the accident was caused in part by a
           defect existing in the crane at the time of
           sale and in part by overloading or misuse of
           the crane by Gulf Coast Dockside, then you
           should apportion or divide responsibility for
           the resulting damages between both parties in
           accordance with the degree or percentage to
           which you find that each cause contributed to
           the accident.

(Emphasis added.)    A similar instruction is contained earlier in

the instructions.    Moreover, the verdict form gave the jury three

options:   (1) to find for Gulf Coast;          (2) to find for Femco; or

(3) to find that both Gulf Coast and Femco were responsible by

assigning percentages to their respective contributing fault.

     Although   it   is   possible   a   jury    could   mis-construe   the

instruction, any confusion was remedied by the court’s twice

instructing the jury to assign a percentage of fault to each party


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if it found both parties at fault.       Furthermore, as discussed,

apportioning fault was one of three options provided the jury by

the verdict form.   Therefore, we cannot say “the charge as a whole

creates substantial and ineradicable doubt [that] the jury [was]

properly guided in its deliberations”.    Pelt, 359 F.3d at 767.

                                                        AFFIRMED




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