                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           
No. 92-2479
                   BEREND J.D. HAVINGA, ET AL.,

                      Plaintiffs, Appellees,

                                v.

            CROWLEY TOWING AND TRANSPORTATION COMPANY,

                      Defendant, Appellant.

                                           
No. 93-1073
                   BEREND J.D. HAVINGA, ET AL.,

                     Plaintiffs, Appellants,

                                v.

            CROWLEY TOWING AND TRANSPORTATION COMPANY,

                       Defendant, Appellee.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

           [Hon. Carmen C. Cerezo, U.S. District Judge]
                                                      

                                           

                    Torruella, Cyr and Boudin,

                         Circuit Judges.
                                       

                                           

        J.  Ramon Rivera-Morales, with whom Manolo T. Rodriguez-Bird
                                                                    
and Jimenez, Graffam  &amp; Lausell  were on brief  for defendant  Crowley
                             
Towing.
   Eugene  F. Hestres, with  whom Bird, Bird  &amp; Hestres  and Jose F.
                                                                    
Sarraga were on brief for plaintiffs Berend J.D. Havinga, et al.
     

                                           
                           June 2, 1994

                                           

          CYR, Circuit Judge.  This admiralty action stems from a
          CYR, Circuit Judge.
                            

nighttime collision  approximately four  miles off the  island of

Culebra,  Puerto Rico, between the 65-foot  sailboat GLORIA and a

262-foot  barge  under tow  by  the tugboat  BORINQUEN,  owned by

defendant-appellant  Crowley Towing and  Transportation Co., Inc.

The five plaintiffs,  the captain  and crew of  the GLORIA,  were

forced  to  abandon her  moments  before the  collision  and were

rescued several hours later. 

          Following a ten-day trial in the United States District

Court for the  District of  Puerto Rico, a  jury found  Crowley's

negligence the sole  cause of the collision,  and awarded damages

totalling $1,661,700.1   Judgment entered  on July 24, 1992.   On

August 7,  plaintiffs filed  a motion  to amend  the  judgment to

provide for attorney fees,  prejudgment interest, and  extraordi-

nary  costs.   As  the Rule  59(e)  motion was  not  served until

August 11, it was  summarily denied.  See Fed. R.  Civ. P. 59(e).
                                         

Meanwhile, Crowley  had  renewed its  motion  for judgment  as  a

matter of law or for  new trial, which the district  court denied

on November 18.  See Fed. R. Civ. P. 50(b).   Crowley now appeals
                    

both  the final  judgment and  the order  denying its  Rule 50(b)

motion  for new trial  or for judgment  as a matter of  law.  The

plaintiffs  cross-appeal  from the  denial  of  their Rule  59(e)

motion to amend the judgment.  

                    

     1At  the end of  plaintiffs' case and again  at the close of
the  evidence, Crowley  unsuccessfully  moved for  judgment as  a
matter of law, see Fed. R. Civ. P. 50(a), on the issue of compar-
                  
ative fault.

                                2

                                I

                            DISCUSSION
                                      

A.   THE CROWLEY APPEAL
                       

     1.   Liability
                   

          On  appeal,  Crowley  contends,  inter alia,  that  the
                                                     

special  jury verdict on liability is contrary to the evidence on

comparative fault.

          a.   Standard of Review
                                 

          Absent a controlling error  of law, which we review  de
                                                                 

novo, see  Stauble v. Warrob,  Inc., 977 F.2d 690,  693 (1st Cir.
                                   

1992), an  order denying a new trial will be reversed only if the

verdict was against the  clear weight of the evidence,  viewed in

the light most favorable to the prevailing party, or would work a

clear miscarriage  of justice, Phav  v. Trueblood, 915  F.2d 764,
                                                 

766 (1st  Cir. 1990).   As  Crowley asserts no  error of  law, we

review only for abuse of discretion.  Id.  
                                         

          A  federal court may not  set aside a  jury verdict and

direct  the entry of a contrary verdict unless no reasonable jury

could have returned a  verdict adverse to the moving  party.  See
                                                                 

Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993).  In making
                      

this determination,  we examine  the evidence  in the  light most

favorable to  the nonmoving party, drawing  all reasonable infer-

ences in its favor.  Cochrane v. Quattrocchi, 949 F.2d 11, 12 n.1
                                            

(1st Cir. 1991), cert. denied,       U.S.      , 112 S.  Ct. 2965
                                               

                                3

(1992); Keisling v. Sea-Jobs for Progress, Inc.,     F.3d    ,   
                                                                 

, No. 93-1406, 1994 WL 92055, at *3 (1st Cir. March 29, 1994). 

          b.   Violation of COLREGS
                                   

          Appellant  Crowley  argues  that  the  failure  of  the

GLORIA's crew to take  appropriate evasive action or to  call the

captain in time to avoid the collision violated the International

Regulations for Preventing Collisions at Sea  (COLREGS).2  As the

evidence  supports the  special verdict  absolving plaintiffs  of

fault, we reject Crowley's challenge.

          Plaintiffs'  expert,  Captain Jose  Rivera  Tolinche, a

master mariner,  testified that  the GLORIA followed  proper col-

lision-avoidance  procedure.3   Captain  Rivera stated  that  the

GLORIA was placed "in extremis" through no fault of her own.  The
                              

in  extremis rule  provides that  "where one  ship has,  by wrong
            

manoeuvres, placed  another ship in a position of extreme danger,

                    

     2Crowley's allegations that the GLORIA  violated the COLREGS
implicate the admiralty causation presumption under the "Pennsyl-
vania Rule."  See The  Pennsylvania, 86 U.S. (19 Wall.)  125, 136
                                   
(1874).  Under  the Pennsylvania  Rule, a vessel  shown to be  in
actual violation of a  collision-prevention rule bears the burden
of  proving that  her fault  could not  have been  a contributing
                                      
cause of the accident.   See Capt'n Mark v. Sea Fever  Corp., 692
                                                            
F.2d 163, 167 (1st Cir. 1982).

     3Since the sailboat GLORIA  was the "privileged" vessel, see
                                                                 
COLREGS, Rule  18(a)(iv) (power-driven  vessel shall keep  out of
way of sailing  vessel), the "default passing  rule" required her
to  hold course  and speed,  id. Rule  17(a)(i), until  it became
                                
apparent  that  the BORINQUEN,  the  "burdened  vessel," was  not
taking appropriate action to  avoid collision, at which time  the
GLORIA was allowed  to manoeuvre  to avoid collision,  id.   Rule
                                                          
17(a)(ii).  At the point  at which the collision could no  longer
be avoided by unilateral action on the part of the BORINQUEN, the
GLORIA was required to take action to avoid a collision.  See id.
                                                                 
Rule 17(b).

                                4

that  other ship will not be held  to blame if she has done some-

thing wrong."  Puerto  Rico Ports Auth. v. M/V  Manhattan Prince,
                                                                

897 F.2d 1, 6 (1st Cir. 1990) (citations  omitted).4  Thus, there

was sufficient  evidence to  support the finding  that plaintiffs

did not fail to follow any collision-avoidance procedure required

under  the  COLREGS before the  GLORIA had been placed in extreme

danger, at which  point any  subsequent mistake on  her part  was

excused.  See id. ("the judgment  of a competent sailor in extre-
                                                                 

mis cannot be impugned").5  
   

                    

     4Though  Crowley  does  not challenge  the  special  verdict
                                          
finding  that the  BORINQUEN  placed the  GLORIA in  extremis, it
                                                             
claims that the in  extremis doctrine does not apply  because the
                            
GLORIA placed herself in extreme danger.  See Bucolo, Inc. v. S/V
                                                                 
JAGUAR, 428 F.2d 394, 396 (1st Cir. 1970) (in extremis applicable
                                                      
only  when party asserting it was free from fault until emergency
arose).  Crowley's argument is foreclosed on appeal, however,  by
Captain Rivera's  testimony, which  formed an adequate  basis for
the jury  finding that  "the tug  BORINQUEN place[d]  the GLORIA,
through no  fault of her own,  in a position of  extreme danger .
                            
. . ."  (Emphasis added).

     5Crowley now contends, for  the first time, that plaintiffs'
conceded failure  to establish  radio contact with  the BORINQUEN
violated COLREGS, Rule 2 (in  complying with COLREGS, due  regard
shall be had to  all dangers of navigation and  collision), since
the watch  aboard the GLORIA sighted  the BORINQUEN approximately
thirty-five minutes prior to the collision.  The failure to raise
this argument below effected  its waiver.  See Wells  Real Estate
                                                                 
v. Greater Lowell Bd. of Realtors,  850 F.2d 803, 810 (1st  Cir.)
                                 
("We do not  reach the issue of the sufficiency  of the evidence,
however, because plaintiff's counsel failed to move for [judgment
as a matter  of law under Rule 50(a)] in the district court . . .
The motion must also be made with sufficient specificity to allow
                                                                 
the district judge  to understand precisely  why the evidence  is
                                                                 
insufficient.   Appellate  review  may be  obtained  only on  the
                                                                 
specific ground  stated in  the motion") (emphasis  added), cert.
                                                                 
denied, 488 U.S. 995  (1988), (citing Pstragowski v. Metropolitan
                                                                 
Life Ins. Co., 553 F.2d 1, 3 (1st Cir. 1977)). 
             

                                5

          c.   Failure to Use Reasonable Care
                                             

          Crowley claims  that a finding of  negligence was "man-

dated" because some  plaintiffs lacked  seafaring experience  and

"did  not have  much time  to couple  together as  a crew."   The

plaintiffs testified to their  training and experience.6  Captain

Rivera  offered  the professional  opinion  that plaintiffs  were

qualified for their respective positions aboard the GLORIA, based

on  their  backgrounds and  experience.    Thus,  in addition  to

Crowley's failure to establish  a causal relationship between the

collision and any  alleged negligence  on the part  of the  crew,

there  was adequate  support for  a jury  finding that  the crew,

individually and collectively, possessed the requisite competence

and qualifications. 

          d.   Unseaworthiness
                              

          Crowley further claims that the GLORIA was unseaworthy,

as the evidence  established that her  engine failed to  function

when  plaintiffs attempted to  start it immediately  prior to the

collision.  Thus, Crowley argues, plaintiffs incurred contributo-

ry fault.  See Gertrude Parker, Inc. v. Abrams, 178 F.2d 259 (1st
                                              

Cir. 1949)  ("unseaworthiness" is ground for  liability in marine

casualty).    The  record nonetheless  substantiates  the special

                    

     6Captain Havinga  is a  licensed deck  officer in  the Dutch
Merchant Marine, and  a Royal Dutch Navy officer.   Hagemann is a
German-certified  able  seafarer,  whose  ten  years  of  sailing
experience included many  voyages as  a crewman, and  one or  two
trips as  the skipper of a  vessel similar to the  GLORIA.  Stach
and Van der Ark had taken courses in basic seamanship.  Paschedag
had  served as  a  crewmember on  at  least three  prior  sailing
voyages in Europe  and the Caribbean, including a  two-week stint
in the Aegean Sea.  

                                6

verdict on comparative fault.  Hagemann, an experienced mechanic,

testified  to  proper  maintenance  and  repair  of  the  engine.

Captain  Rivera provided  expert  testimony that  the GLORIA  was

seaworthy.  As Crowley has neither shown that the special verdict

on comparative fault  was against  the clear weight  of the  evi-

dence,  nor that  the district  court erred  in denying  the Rule

50(b)  motion  for judgment  as a  matter  of law,  the liability

judgment against Crowley must stand. 

     2.   Damages
                 

          Crowley challenges  the amount  of damages awarded  for

economic loss, pain and suffering, and loss of enjoyment of life,

as well  as the district court  order denying its  motion for new

trial on  damages or for a  remittitur.  Crowley argues  that the

damages awarded for economic  loss exceed any rational evaluation

of the evidence,  see Kolb v. Goldring,  Inc., 694 F.2d  869, 871
                                             

(1st Cir. 1982), and that the awards for noneconomic injuries are

so  grossly excessive as to  "shock the conscience," see McDonald
                                                                 

v. Federal Labs., Inc., 724 F.2d 243, 246 (1st Cir. 1984) (citing
                      

Gruenthal v. Long Island R.R. Co., 393 U.S. 156, 159 (1968)).  
                                 

          a.   Standard of Review
                                 

          Though notoriously difficult to quantify, see Rivera v.
                                                              

Rederi  A/B Nordstjernan, 456 F.2d 970, 975 n.8 (1st Cir.), cert.
                                                                 

denied, 409 U.S.  876 (1972), noneconomic  damages, such as  pain
      

and suffering and loss of enjoyment of life, "are not immune from

appellate review," Anthony v. G.M.D. Airline Servs., 17 F.3d 490,
                                                   

                                7

494 (1st Cir. 1994) (citations omitted).  But appellant bears the

                                8

heavy burden of establishing that an award is "grossly excessive,

inordinate,  shocking to the conscience  of the court  or so high

that it  would be  a denial  of justice to  permit it  to stand."

McDonald,  724  F.2d at  246 (citations  omitted).   We  will not
        

disturb an  award  of damages  merely  because it  is  "extremely

generous,  or [because] had we been deciding, we would have found

the damages to be considerably less," Williams v. Martin Marietta
                                                                 

Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir.) (citations omitted),
             

cert.  denied, 484 U.S. 913 (1987), cited with approval in Antho-
                                                                 

ny,  17 F.3d at 494.  Rather, we will reverse an award only if it
  

is so grossly  disproportionate to any injury  established by the
                                                                 

evidence as to be unconscionable as  a matter of law.  See Milone
                                                                 

v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988); Marchant
                                                                 

v. Dayton Tire &amp; Rubber  Co., 836 F.2d 695, 704 (1st  Cir. 1988);
                            

Wagenmann v. Adams, 829 F.2d 196, 200-01 (1st Cir. 1987); Bonn v.
                                                              

Puerto  Rico  Int'l Airlines,  Inc., 518  F.2d  89, 94  (1st Cir.
                                   

1975).

          b.   Pain and Suffering and Loss of
               Capacity for Enjoyment of Life
                                             

          The lion's share (97%) of the challenged awards was for

"pain, suffering and  loss of capacity  for enjoyment of  life."7

                    

     7The individual awards were as follows:

               Pain/
               Suffering, 
               Lost           Personal       Medical        Lost 
               Enjoyment      Effects        Expenses    Earnings
                                                                 

Havinga:       $450,000       $27,000        $2,500         0
Havinga:
       

Stach:         $400,000       $32,400        $1,500         0
Stach:
     

                                9

See  Room v.  Caribe Hilton Hotel,  659 F.2d  5, 8  n.3 (1st Cir.
                                 

1981) (pain and suffering); Gutierrez-Rodriguez v. Cartagena, 882
                                                            

F.2d 553, 580  (1st Cir. 1989) (loss of enjoyment  of life).  The

special  verdict forms  did not  differentiate between  "pain and

suffering" and "loss of  enjoyment of life."  Further,  there was

no objection to the  jury charge, which lumped all  alleged forms

of noneconomic injury:  "If you find . . . for the plaintiffs you

should  compensate them for any bodily injury, any resulting pain

or  suffering, mental anguish and loss of capacity for the enjoy-

ment of life experiences in the past, and which you find from the

evidence  that they  are reasonably  certain to  suffer [i]n  the

future from the injury  in question."  Further, in  closing argu-

ment,  plaintiffs'  counsel  appealed  to the  jury  as  follows,

without objection:  "You have the opportunity to compensate these

five  plaintiffs for  the  loss of  the  quality of  their  life.

Something was taken  from them on April 12, 1989,  and you cannot

return that .  . .   But  you can  try to  compensate fairly  and

justly for  all their losses, for  all their pain,  for all their

suffering, for  the loss of  the quality  of life, for  the three

years that they have had to wait until they finally came here . .

. ." 

                    

Van der Ark:   $200,000       $ 2,300           0           0
Van der Ark:
           

Hagemann:      $300,000       $ 9,400        $7,000         0
Hagemann:
        

Paschedag:     $200,000       $15,600        $7,000      $7,000
Paschedag:
         

No  award was made for  future medical expenses.   See infra note
                                                            
15.

                                10

          Viewed in  the light  most favorable to  the challenged

awards, see Toucet  v. Maritime  Overseas Corp., 991  F.2d 5,  11
                                               

(1st 

Cir.  1993), the  evidence relating  to damages  was  as follows.

Plaintiffs Hagemann and Paschedag, who were standing watch aboard

the GLORIA,  first saw the BORINQUEN's running lights at approxi-

mately 2:55 a.m.  As  the BORINQUEN changed course at  3:24 a.m.,

Hagemann anticipated  that she  would pass on  the GLORIA's  port

side  in accordance with the COLREGS.  As Hagemann soon realized,

however, the  BORINQUEN instead  was assuming a  collision course

with the GLORIA,  so he attempted  to bring  the GLORIA to  star-

board.  Unable to steer the GLORIA clear of the BORINQUEN without

motor power,  Hagemann tried unsuccessfully to  start her engine.

Paschedag frantically  attempted to signal the  BORINQUEN with an

air horn and  a marine light, to no avail.   Hagemann then yelled

for  Captain Havinga  and the  two other  crew members,  who were

asleep below.  Although Havinga quickly came on deck, by the time

he could take the  helm and attempt evasive maneuvers  the BORIN-

QUEN was within 60 feet and coming on "very fast."8  

                    

     8The parties stipulated that the BORINQUEN changed course at
3:24 a.m.  There was testimony that this course change placed the
GLORIA in extremis.  The helmsman of the BORINQUEN testified that
                  
the course change took "about five minutes," "more or less."   At
some point between  3:24 and 3:30,  Hagemann recognized that  the
tug  was  assuming  a collision  course,  placing  the  GLORIA in
                                                                 
extremis.  Thus,  as approximately one minute  passed between the
        
narrow  miss by the  BORINQUEN and the first  impact with the tow
barge  (at 3:30), the jury  reasonably could have  found that the
GLORIA  had no  more than  two to three  minutes within  which to
attempt to avoid the collision.  

                                11

          The BORINQUEN  herself narrowly missed the  GLORIA.  As

the vessels passed, however, a 200-meter steel tow cable connect-

ing the BORINQUEN with  its 262-foot tow barge scraped  along the

deck of  the GLORIA, crushing objects  in its path.   As the huge

barge bore  down  on the  65-foot GLORIA,  plaintiffs could  only

await  the  impending  collision  in helpless  panic.9    Moments

before the initial impact at 3:30 a.m., Havinga, fearing that the

GLORIA would be dragged  under the barge, ordered the  crew over-

board.   Before the men could respond, however, they were knocked

off  their feet  by the  force of  the first of  three collisions

between the barge and  the GLORIA.  The GLORIA swayed  90 degrees

to  the horizontal  several  times before  righting herself,  and

rapidly  drifted away.   The  plaintiffs could  see  the helmsman

aboard the BORINQUEN as the  barge passed them in the water,  but

were unable to attract attention aboard the BORINQUEN.

          Eventually  the  five plaintiffs  made  it  to a  small

rubber dinghy which Stach  had managed to throw from  the GLORIA,

her life  boat having been lost  in the collision.   Due to their

confusion and panic, as well as  the darkness and rough seas, the

crew  had great  difficulty reaching  the dinghy,  and Stach  and

Paschedag nearly drowned.   The dinghy was large enough  for only

two or three  persons, and  the five plaintiffs  were piled  two-

deep.   Havinga, Van der Ark, and Stach had lost all their cloth-

ing, and shared  the little  clothing worn by  Hagemann and  Pas-

                    

     9Approximately sixty seconds elapsed  between the passing of
the BORINQUEN  itself and  the GLORIA's initial  impact with  the
trailing barge.  See supra note 8.
                          

                                12

chedag.   The men  shivered uncontrollably, their  situation made

more  miserable  by Havinga's  incontinence  and  the sea  swells

washing over the sides of the dinghy.

          At trial,  each plaintiff testified to  his own experi-

ence  and  emotional  state,  including  shock,  hysteria, panic,

desperation, and fear of death.  All were concerned about sharks.

Due  to his  merchant  marine experience,  Havinga realized  (and

advised  Hagemann) that  sharks often  follow  barges to  feed on

scraps  lost overboard.  Their fears were reinforced when Van der

Ark and others  observed fins around and beneath the dinghy.  The

men  knew that  even  a glancing  contact  with a  shark's  rough

exterior could puncture and sink the rubber dinghy.  At the first

appearance of sharks, therefore,  further efforts at paddling the

dinghy were abandoned.  While  awaiting rescue, on several  occa-

sions plaintiffs  experienced elation upon seeing  an approaching

vessel (one within 300 yards), only to have their hopes dashed as

each  vessel passed in the darkness.  Approximately four and one-

half hours  after the collision,  plaintiffs were rescued  by the

tug FAJARDO.

          The individual plaintiffs  testified to their  pain and

suffering  and loss of enjoyment of  life following the accident.

Dr. Jose Fumero,  plaintiffs' examining psychiatrist,  testified,

without objection,  that the  plaintiffs all suffered  from acute

post-traumatic stress  disorder (PTSD),10 a direct  result of the

                    

     10Dr. Fumero testified that  PTSD is an acknowledged anxiety
disorder, see American Psychiatric Assoc., Diagnostic and Statis-
                                                                 
tical Manual of Mental  Disorders, Third Edition, Revised, 247-49
                                                         

                                13

accident.  Dr. Fumero  described the emotional injuries sustained

by  each plaintiff,  and  testified to  a  "Global Assessment  of

Function" (GAF)  for each  plaintiff, ranging from  zero (virtual

vegetative state) to ninety (high function).11

          The  district court  instructed  the jury  to  consider

plaintiffs' pain and suffering, as well as any loss of "enjoyment

of life  experiences in  the past,  and which you  find from  the
                                 

evidence  that they  are reasonably  certain  to suffer  [i]n the

future." (Emphasis  added).  See, e.g.,  Gutierrez-Rodriguez, 882
                                                            

F.2d at 580 (upholding  damages awarded for loss of  enjoyment of

life;   1983 action); Downie v. U.S. Lines Co., 359 F.2d 344, 348
                                              

(3d  Cir.) (same; admiralty), cert. denied,  385 U.S. 897 (1966).
                                          

In  argument,  plaintiffs' counsel  focused  particularly on  Dr.

Fumero's uncontroverted testimony relating to plaintiffs' loss of

emotional function  since the accident, and on the adverse impact

this  would continue  to have  on the  quality of  their lives.12

                    

(1987),  caused by trauma beyond the range of normal human exper-
ience  which  results  in  such symptoms  as  reexperiencing  the
traumatic event; a tendency to avoid stimuli  associated with the
trauma; numbing of general responsiveness; and increased  arousal
(i.e., difficulty  falling or  remaining asleep;  irritability or
     
outbursts  of  anger;  difficulty concentrating;  hypervigilance;
exaggerated startle response;  physiologic reactivity upon  expo-
sure to events reminiscent of the event (e.g., a woman previously
                                             
raped in an  elevator begins to perspire profusely  upon entering
an elevator)).  See id. at 250.
                       

     11According to Dr. Fumero, the GAF assesses  and compares an
individual's current  level of  emotional function with  his pre-
accident level of function.

     12With respect to the severity of their injuries, Dr. Fumero
testified to  the diminishment  in each  plaintiff's pre-accident
emotional function as a result of the accident:  Havinga (from 90
to 65); Stach (75 to 50); Van der Ark (85 to 60); Hagemann (90 to

                                14

Thus, the evidence, argument, and the unchallenged charge allowed

the jury considerable latitude to  award substantial sums as non-

economic damages to compensate plaintiffs not only for their loss

of enjoyment of life during the three years immediately after the

accident, but  into the indefinite future.   See Gutierrez-Rodri-
                                                                 

guez, 882 F.2d at 580; Kokesh v. American Steamship Co., 747 F.2d
                                                       

1092, 1095 (6th Cir.  1984) (substantial award "may  also reflect

the evidence that  [plaintiff's] . . . ability to  enjoy life has

been impaired") (admiralty case). 

          Contrary to Crowley's attempt on appeal to characterize

these  awards almost  exclusively  as compensation  for pain  and

suffering experienced at and  immediately after the accident, the

noneconomic  damages are  largely supportable  simply on  the un-

controverted  trial evidence  that  each  plaintiff  had  already

experienced substantial  deficits in emotional function  and loss

of enjoyment of life which could be expected to continue into the

indefinite future.   Viewed in  the light most  favorable to  the

verdicts, Fumero's testimony reasonably  enabled the jury to find

that none  of the plaintiffs had regained  normal emotional func-
         

tion by the time of trial and that though Havinga, Stach, and Van

der Ark may  continue to  improve, it is  uncertain whether  they

                    

60); Paschedag (85 to 55).   Dr. Fumero described a GAF of 65  as
"very, very low."  Crowley argues that the amounts awarded to the
individual plaintiffs  were disproportionate to  their respective
GAFs.   Dr. Fumero explained,  however, that it  is misleading to
compare  GAFs  between individuals.   The  GAF compares  an indi-
vidual's current emotional function to his pre-accident capacity.
Moreover,  the jury  was entitled  to weigh  all the  evidence in
                                                
assessing the individual awards, not merely the GAFs. 

                                15

will ever  recover their  pre-accident levels of  emotional func-

tion.   The uncontroverted  evidence also revealed  that Hagemann

and  Paschedag  "had stabilized"  well  below  their pre-accident

levels  of emotional function and  could expect no further "bene-

fits of  improvement."13   Crowley  chose  to present  no  expert

testimony  on loss  of emotional  function, loss of  enjoyment of

life,  or pain  and  suffering, nor  did  it challenge  the  jury

instruction on these noneconomic damages. 

          After  a  careful review  of  the  record, see  Coy  v.
                                                             

Simpson Marine Safety  Equip., Inc.,  787 F.2d 19,  27 (1st  Cir.
                                   

1986),  we are  unable  to say  that  these noneconomic  damages,

though  generous to  be  sure, were  so  disproportionate to  the

uncontroverted evidence of "pain and suffering," severe emotional

injuries,  and loss of  enjoyment of life,  as to  shock the con-

science.   See, e.g., Joia  v. Jo-Ja Serv.  Corp., 817 F.2d  908,
                                                 

918-19  (1st Cir.  1987) (while  $250,000 award,  exclusively for

"pain  and  suffering," was  "very  high,"  it  was supported  by

sufficient evidence  so as  not to  shock the  conscience), cert.
                                                                 

denied, 484 U.S.  1008 (1988).   The evidence  was sufficient  to
      

establish  that plaintiffs' emotional  and psychological injuries

                    

     13Crowley  suggests  that  the jury  acted  irrationally  by
returning the two smallest noneconomic damages awards to Hagemann
and Paschedag, the two plaintiffs with the greatest GAF differen-
tial at the time of trial.  However, GAF differential was not the
only evidence going to  noneconomic damages.  The jury  heard Dr.
Fumero's detailed  clinical descriptions of the individual plain-
tiffs' mental health, as well as each plaintiff's testimony about
his own  emotional response.  And, of  course, the jury was enti-
tled  to weigh all the  evidence going to  each component of non-
economic damages.  

                                16

were severe, "significantly affected" the quality of their lives,

and  caused each to avoid  activities in which  he had engaged.14

Cf.  Anthony, 17  F.3d  at 494  ($566,765 award,  exclusively for
                                                             

"pain  and suffering,"  held  grossly  disproportionate,  absent,

inter alia, any "evidence  [that plaintiff's] injury has rendered
                         

him unable to perform  any particular functions or engage  in any

particular activities  [or] otherwise interfered with his profes-

sional,  recreational,  or  personal  life")   (emphasis  added);

Marchant, 836 F.2d  at 703-04 ($550,000 pain  and suffering award
        

unconscionable when,  inter alia, injury did  not cause plaintiff
                                

significant  financial losses).    Further, the  jury could  have

found  that  plaintiffs'  post-traumatic  stress  disorders  were

permanent  and chronic.15   Cf.  Anthony, 17  F.3d at  494 ("pain
                                        

                    

     14Dr. Fumero  also testified  that the plaintiffs'  PTSD was
"directly  related" to  the accident  involving the GLORIA.   Cf.
                                                                 
Bonn,  518 F.2d  at 93-94.   In  Bonn, the plaintiffs  were three
                                     
children whose  parents had  been killed  in a  plane crash.   We
found that a $1,045,000  "pain and suffering" award to  the chil-
dren  was  "unconscionable," in  significant  part  because their
emotional injuries  were not  directly related to  their parents'
death.  Id. at 94  ("[t]estimony and pre-accident reports conclu-
                                                                 
sively  establish  that  the  children exhibited  many  of  their
      
present emotional problems before their parents' death."  (Empha-
sis added)). 
     There was  evidence that  all these plaintiffs  have greater
fear  of the sea; Havinga  and Stach now  avoid stressful profes-
sional  and  personal  situations; Hagemann  suffered  financial,
personal,  and sexual  problems; Van  Der  Ark has  experienced a
lessening of academic interest;  and Paschedag, who sustained the
greatest  loss of  emotional  function, was  unable  to work  for
approximately five months.

     15Crowley argues that since no plaintiff was awarded damages
for future medical expenses, and each received only a small award
                           
for past medical expenses, there was  no evidence of "substantial
long term injuries"  sufficient to  justify the awards.   On  the
contrary,  the jury  reasonably  could have  awarded  noneconomic
                                                                 
damages  for past "pain and  suffering" and emotional injury, and
       

                                17

and suffering"  award vacated because, inter alia,  there was "no
                                                 

testimony or other evidence  that [plaintiff's] current condition

is permanent").

          Although Crowley  now  challenges its  weight, Dr.  Fu-
                                                       

mero's expert testimony as  to each plaintiff's PTSD and  loss of

emotional  function  was  admitted  without  objection  and  went

uncontroverted at trial.   Thus, the jury was entitled  to credit
              

this  testimony  fully.   Gutierrez-Rodriguez,  882  F.2d at  579
                                             

("Against  [the plaintiff's  expert's]  evidence, the  defendants

offered no contradictory  testimony.  The . . . facts were uncon-

troverted and the jury was entitled to accept all of them").  See
                                                                 

also Fed. R. Civ.  P. 35(a) (permitting,  on motion and for  good
    

cause, psychological  examination of  party when mental  state in

controversy).   Crowley merely  argues that  the awards  for non-

economic injuries are so  disproportionate to the damages compen-

sating plaintiffs for  their medical  expenses as  to render  the

awards grossly  excessive, citing Betancourt v.  J.C. Penney Co.,
                                                                

554  F.2d 1206, 1209 (1st  Cir. 1977) (vacating  jury award where

noneconomic damages were 120  times greater than economic damages

                    

for permanent "loss of  capacity for enjoyment of  life," without
concluding  that future  medical treatment  was indicated.   See,
                                                                
e.g., Dunn v. Penrod Drilling Co., 660 F. Supp. 757, 770-71 (S.D.
                                 
Tex. 1987)  (awarding  $110,000  for past  and  future  pain  and
suffering, but  declining to award damages  for medical expenses)
(admiralty case).  
     Crowley  also  maintains  that  the  awards  were  excessive
because each plaintiff showed  improvement by the time of  trial.
Of  course, improvement would not preclude an award for "pain and
suffering," loss of emotional function, and  loss of enjoyment of
life  already experienced  during the  three years  following the
                         
accident.  Nor would  it preclude an award for  loss of emotional
function and enjoyment of life in the future.  

                                18

because  award "simply  makes  no sense")  (applying Puerto  Rico

law).  While the relationship among its various components may be

considered in  evaluating the total  award, see id.,  the primary
                                                   

teaching in our cases  is that damages not be  grossly dispropor-

tionate to  the injury.  See Laaperi v. Sears, Roebuck &amp; Co., 787
                                                            

F.2d 726, 735 (1st Cir. 1986).  In this  case, the uncontroverted

evidence  of severe  PTSD,  accompanied by  substantial pain  and

suffering  and loss of enjoyment of life brought on by diminished

emotional function,  which may  well prove permanent,  takes this

case out of the Betancourt mode.16 
                          

          Finally,  Crowley  claims  these  awards   are  grossly

excessive compared  to awards  in other cases.   As  we have  ex-

plained, "the paramount focus in reviewing a damage award must be

the  evidence presented at trial  . . . .  Absent  a most unusual
                                

case  . . . we cannot imagine  overturning a jury  award that has

substantial  basis in  the evidence."   Gutierrez-Rodriguez,  882
                                                           

F.2d at 579 (citations omitted) (emphasis added).  An examination

of other awards  upheld in  our case law  suggests no  sufficient

basis  for upsetting  the  present awards.    See id.  at  579-80
                                                     

(explaining  that a  jury award  will not  be overturned  "merely

because  the amount  of the  award is  somewhat out of  line with

other cases  of  similar  nature.")   Indeed,  our  research  has

                    

     16For example, there was evidence in Betancourt that if  the
                                                    
plaintiff had been willing to undergo treatment for a three-month
period,  "she  would feel  'just  about  completely well  in  her
initial  condition . . . [and] will  heal and live  a normal life
almost free of  pain.'"  554 F.2d at 1208.   Not only is there no
such evidence  here, but  the modest injuries  sustained in  Bet-
                                                                 
ancourt were exclusively physical.
       

                                19

disclosed  no sufficiently  similar  case to  suggest, let  alone

persuade,  that  these  awards  for noneconomic  damages  are  so

excessive as to require retrial or remittitur.17

          c.   Economic Damages
                               

          We must  now determine whether the  damages awarded for

economic  loss have  "adequate  evidentiary support."   Segal  v.
                                                             

Gilbert Color  Sys., Inc., 746 F.2d 78, 81 (1st Cir. 1984) (cita-
                         

tion omitted).  We will uphold an award for economic loss provid-

ed it does  not "violate the  conscience of the  court or  strike

such  a dissonant  chord that  justice would  be denied  were the

judgment  permitted to  stand," Milone,  847 F.2d  at 37.   Under
                                      

these  standards, we  examine  the evidence  in detail,  see Gru-
                                                                 

nenthal, 393  U.S. at  159 (appellate  court must make  "detailed
       

appraisal  of the evidence bearing on damages"), and in the light

most favorable to plaintiffs, Toucet, 991 F.2d at 11. 
                                    

          Crowley challenges the awards  for past medical expens-

es, loss of personal  effects, and lost earnings, see  supra note
                                                            

7, as unsupported by the evidence.  We agree in part.  The awards

                    

     17For example,  Crowley cites cases in  which lesser amounts
were awarded for  "pain and suffering" experienced  by seamen who
perished at sea.  See, e.g., Brown v. United States, 615 F. Supp.
                                                   
391  (D.Mass. 1985), rev'd. on  other grounds, 790  F.2d 199 (1st
                                             
Cir. 1986), cert. denied, 479 U.S. 1058 (1987); Bergen v. F/V St.
                                                                 
Patrick, 816 F.2d  1345 (9th  Cir.), cert. denied,  493 U.S.  871
                                                 
(1987).   This anomaly is  due, in  large part,  to the  presumed
brevity of  the  pain and  suffering experienced  before the  de-
cedent's  demise, which is separate  and apart from  an award for
wrongful  death.   Moreover,  as explained  above,  see supra  at
                                                             
pp.14-15, the noneconomic  damages in this case  were not limited
to "pain and  suffering" at and  immediately after the  accident,
but  included sustained  emotional injuries,  including PTSD  and
plaintiffs' sustained  and/or permanent loss  of emotional  func-
tion.  

                                20

for past  medical expenses and lost earnings  are well documented

in the record.  On the other hand, the individual awards for loss

of personal effects (except for the Van der Ark award) exceed the

amounts to which  plaintiffs testified at trial:  Havinga ($5,500

loss, awarded  $27,000); Stach ($17,600  loss, awarded  $32,400);

Hagemann ($5,600 loss,  awarded $9,400); Paschedag  ($7,000 loss,

awarded $15,600).  As there was no other relevant evidence, these

awards  must be pared.18   See Kolb,  694 F.2d at  871 (award for
                                   

purely  economic damages  is  excessive as  a  matter of  law  if

unsupportable on  any rational view of the  evidence); Segal, 746
                                                            

F.2d at 81 (same).

          Therefore, absent  a remittitur,  we must remand  for a

new  trial on damages relating to loss  of personal effects.  See
                                                                 

Anthony, 17 F.3d at 495.  Since the trial record clearly disclos-
       

es the maximum amount of damages recoverable for loss of personal

effects,  however, we  can  calculate  the remittitur  ourselves.

Id.; Kolb,  694 F.2d at  875 (as  defects in  award "are  readily
         

                    

     18Plaintiffs  argue that  a  chart attached  to their  brief
supports the awards.   The chart merely lists the  total economic
damages claimed by  each plaintiff, with  no hint  as to how  the
total  figure was derived.  Plaintiffs concede that the chart was
not  admitted in evidence.   Thus, it  merely served as  a visual
aid.  See Jack B.  Weinstein &amp; Margaret A. Berger,  5 Weinstein's
                                                                 
Evidence   1006[7] (Sept. 1983) (chart itself not evidence unless
        
admitted  under Fed.  R. Evid.  1006).   Consequently, the  chart
could provide no  evidentiary support for  the awards.   Finally,
plaintiffs neither  point  to,  nor  have we  found,  any  record
support for these awards for loss of personal effects, other than
plaintiffs' testimony.  

                                21

identified and  measured," remittitur  more appropriate  than new

trial).19   We therefore order a new  trial on damages claimed by

plaintiffs Havinga,  Stach, Hagemann, and Paschedag  for the loss

of  their personal  effects and  belongings, unless  these plain-

tiffs, respectively, remit $21,500, $14,800, $3,800, and  $8,600,

in which  event their judgments shall stand affirmed as modified.

See id.; 11 Charles A.  Wright &amp; Arthur R. Miller,  Federal Prac-
                                                                 

tice and Procedure   2820, at 133-134 (1973 &amp; Supp. 1993).
                  

B.   THE CROSS-APPEAL
                     

          The plaintiffs  cross-appeal from  the denial of  their

motion  for attorney  fees and  extraordinary costs,20  and their

Rule 59(e) motion for prejudgment interest.  Their claims are un-

availing.21 

                    

     19Under the  "maximum recovery" rule, we may condition a new
trial  on the  acceptance of  a remittitur  based on  the highest
award supported  by the evidence.   See Liberty Mut. Ins.  Co. v.
                                                              
Continental  Cas. Co., 771 F.2d  579 588-89 (1st  Cir. 1985); see
                                                                 
also Marchant,  836  F.2d at  704  (noting adoption  of  "maximum
             
recovery" rule). 

     20Plaintiffs requested attorney  fees, extraordinary  costs,
and prejudgment interest in  their Rule 59(e) motion to  alter or
amend judgment.  Motions  for attorney fees are governed  by Fed.
R. Civ. P.  54(d)(2), see also  White v. New  Hampshire Dept.  of
                                                                 
Emp. Secur., 455 U.S. 445 (1982)  (pre-Rule 54(d)(2) case holding
           
motion for  attorney fees  under 28 U.S.C.    1988 not  barred by
Rule 59(e) time limits), as are costs, see Buchanan v. Stanships,
                                                                 
Inc.,  485 U.S.  265, 267  (1988) (per  curiam)  (application for
    
costs  properly viewed as Rule 54(d) motion).  These requests for
fees and costs were timely  under Rule 54(d)(2)(B).  See id.   On
                                                            
the other hand, the claim for prejudgment interest is governed by
Rule 59(e).  See Osterneck v.  Ernst &amp; Whinney, 489 U.S. 169, 175
                                              
(1989).  

     21Crowley  argues that  the cross-appeal  is untimely.   See
                                                                 
Fed. R. App. P. 4(a)(3) (cross-appeal may be taken within 14 days
after a timely notice of appeal, or as otherwise provided by Rule
                                   

                                22

          Though plaintiffs  claim on  appeal that  attorney fees

were warranted on  the ground that Crowley  engaged in litigation

tactics born  of "premeditated bad  faith," they adduced  no sup-

porting evidence below.   The record would not support  a finding

of bad faith or fraudulent litigation tactics such as the Supreme

Court has found sufficient  to warrant an award of  attorney fees

as  a sanction  under the  "inherent power"  of  the court.   See
                                                                 

Chambers v.  NASCO, Inc., 501 U.S. 32,    , 111 S. Ct. 2123, 2140
                        

(1991).  We therefore find no  abuse of discretion.  See Papas v.
                                                              

Hanlon, 849 F.2d  702, 703 (1st Cir. 1988); FDIC V. Sumner Finan-
                                                                 

cial Corp., 602 F.2d 670, 683 (5th Cir. 1979) (holding that where
          

bad faith is not "directly inferable from record," district court

did  not abuse  discretion  in denying  motion for  extraordinary

costs and attorney fees).  

          Lastly, plaintiffs  filed their  Rule 59(e)  motion for

prejudgment interest with the  district court on August  7, 1992,

but did not mail it to Crowley until  August 11, see Fed. R. Civ.
                                                    

P. 5(b) ("[s]ervice by mail is complete upon mailing"), more than

ten days  (excluding intermediate weekends and the  date on which

the order  was entered, Fed. R. Civ.  P. 6(a)) after the judgment

had been  entered on July  24.  Since  the Rule 59(e)  motion was

                    

4(a)).  Crowley filed its notice of appeal on  December 11, 1992.
On December 31, plaintiffs asked the district court to extend the
time for filing  their cross-appeal, alleging  that they had  not
been  properly served with the Crowley notice of appeal, and that
no  party would  be prejudiced  by the  late filing.   By  margin
order, the court granted the extension.  Fed.  R. App. P. 4(a)(5)
provides  that the district court may extend the appeal period on
motion filed within thirty days of the expiration of the original
appeal period.  

                                23

untimely, we lack jurisdiction to entertain the cross-appeal from

the district court  order denying  the Rule 59(e)  motion for  an

allowance of  prejudgment interest.  The  ten-day time limitation

under Rule 59(e) is jurisdictional.  Feinstein v. Moses, 951 F.2d
                                                       

16, 19 (1st Cir. 1991).22 

          The judgment in favor of plaintiff-appellee Van der Ark
                                                                 

is affirmed.  The judgment in favor of any plaintiff-appellee who
                                                                 

fails  to  remit damages  as  follows:    Havinga $21,500;  Stach
                                                                 

$14,800;  Hagemann $3,800;  and Paschedag  $8,600, within  thirty
                                                                 

days of entry of mandate, shall be vacated.  The case is remanded
                                                                 

for a new trial on economic damages  for loss of personal effects
                                                                 

and  belongings or for the  entry of judgments  reduced in accor-
                                                                 

dance herewith.  Costs are allowed to plaintiffs-appellees in No.
                                                                 

92-2479 and to defendant-appellee in No. 93-1073.
                                                

                    

     22Under settled admiralty law, moreover, plaintiffs' failure
to  request a  jury  instruction on  prejudgment interest  barred
recovery.  See Scola v. Boat  Frances R., Inc., 618 F.2d 147, 150
                                              
(1st  Cir.  1980)  (prejudgment  interest  is  "discretionary  in
maritime  personal  injury  cases,  and the  discretion  must  be
exercised by the jury").
     Plaintiffs also  request appellate  costs and damages  under
Fed. R. App.  P. 38, characterizing  Crowley's appeal as  "frivo-
lous."  We disagree.  Crowley not only prevailed in part but even
its unsuccessful appellate claims are not fairly characterized as
"frivolous." 

                                24
