     [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]


          United States Court of Appeals
                     For the First Circuit

No. 00-2098

                ANA MATOS, INDIVIDUALLY AND AS
                PERSONAL REPRESENTATIVE OF THE
                   ESTATE OF JOAQUIM MATOS,

                     Plaintiff, Appellant,

                              v.

                  SILVA FISHING CORPORATION,

                     Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Nancy Gertner, U.S. District Judge]


                            Before

                      Boudin, Chief Judge,

                  Cyr, Senior Circuit Judge,

                   and Lynch, Circuit Judge.



     David F. Anderson with whom Carolyn M. Latti, David J. Berg
and Latti & Anderson LLP were on brief for appellant.
     Thomas J. Muzyka with whom Arthur P. Skarmeas and Clinton
& Muzyka, P.C. were on brief for appellee.
                          October 30, 2001



          Per Curiam.   Ana Matos brought this action to recover

for the death of her husband, Joaquim Matos, who drowned after

falling off the F/V Lutador, a commercial fishing vessel owned

by defendant Silva Fishing Corporation.      Joaquim Matos was a

mate aboard the vessel.    The captain was Jose Silva, president

of Silva Fishing.

          Early on the morning of October 10, 1997, Joaquim Matos

noticed that some wires attached to the vessel's trawl doors

were tangled.   The doors, located in the aft of the vessel, are

used to keep the fishing net open while it is dragged through

the water.   Matos informed Silva, who took over the controls of

the vessel and a winch used to operate the doors.       With the

assistance of Silva and two other crewmembers, Matos was able to

untangle the wires, but the starboard-side door got caught on a

chain.   Matos signaled Silva to raise and lower the doors with

the winch, but this effort did not free the door from the chain.

          On his own initiative, Matos placed one foot on the

railing of the vessel and one foot on the starboard side door,

which was partially submerged in the water.    Using a hammer he

pounded the chain trying to loosen it from the door.   Silva, who


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was at the front of the vessel at the time, yelled at Matos to

get off the door and back into the boat because he feared Matos

might get hurt, but Matos either did not hear him or simply

ignored the order.         As Matos was hammering, the door suddenly

dropped and he fell into the water.

             A crewmember threw an unattached life ring into the

water, but it landed 20 feet from Matos and Matos did not try to

swim toward it.         Silva turned the vessel toward Matos, coming

within four feet of him.            A deckhand threw Matos another life

ring which landed one or two feet from him, but again Matos was

unresponsive.      Before the deckhand could jump into the water,

Matos submerged and disappeared, only seven minutes after he

fell off the vessel.

             Ana Matos contended at trial that Silva Fishing was

negligent under the Jones Act, 46 U.S.C. § 688 (1994), in

failing to provide her husband a safe workplace and in failing

to conduct a proper rescue operation once he fell overboard and

that   the     vessel   was   unseaworthy       in   several   respects   under

general maritime law.           In a special verdict, the jury found

inter alia that the defendant, Silva Fishing, was not negligent,

and    that,    although      the   F/V    Lutador    was   unseaworthy,    its

unseaworthiness was not a proximate cause of Matos' death.                   It




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also found that Matos' own negligence was a 95 percent cause of

his death.

          On appeal, Matos challenges the jury instructions that

were given and the qualifications of Silva Fishing's expert.             We

reject her claims for reasons explained below.         Because most of

Ana Matos' arguments parallel those that we recently considered

and rejected in Hopkins v. Jordan Marine, Inc., 1st Cir., No. 01-

1027, Oct. 29, 2001, we rely primarily upon our discussion in

that case.        Matos     first   argues     that the district court

effectively allowed assumption of the risk as a defense when it

told the jury that "[a] seaman, when he enters upon his calling,

must assume the unavoidable risks of his occupation" and may not

recover for "the normal hazards of his business."               It is true

that assumption of the risk is not a bar to recovery, either for

unseaworthiness or under the Jones Act, see Hopkins, slip op. at

4; but the now disgarded doctrine does not forbid use of the

words "assume" or "risk."

          Rather, as Hopkins explains, assumption of the risk was

a doctrine that precluded a plaintiff from recovering, even

where   the   owner   was   shown   to    be   negligent   or    the   ship

unseaworthy, because the plaintiff had known of the action or

condition and "assumed the risk" by continuing to work.            No such

instruction was given here.     The complained of instruction, read


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in full, merely said that there was no liability if no one was

at   fault   and        the    accident      was    simply     one    of   those   normal

incidents of life at sea.1

             Matos        also     complains         that      the    instruction        on

contributory negligence contained error and that the charge on

negligence        did    not     sufficiently         stress    the     extent     of    the

obligation.        But the charge on negligence gave the substance of

what Matos says should have been included.                       And given the jury

finding that unseaworthiness did not cause the harm (which

disposed     of    one        claim)   and    the    finding     that      there   was   no

negligence        (which       disposed      of     the   other),     the    95    percent

allocation of blame to Joaquim Matos was beside the point.

             In a final criticism of the instructions, Ana Matos

says that the court erred in telling the jury that an act or

omission is the cause of an injury or death if the harms would

not have happened "but for" the act or omission.                            The argument

is that the jury may have been misled into thinking, wrongly,

see Hopkins, slip op. at 7, that the defendant's act or omission

had to be the sole cause.                    However, the district court twice



      1
      The instruction reads (emphasis added): "A seaman, when he
enters upon his calling, must assume the unavoidable risks of
his occupation, as all persons must, and no person may recover
for injuries resulting from unavoidable risks. If the seaman is
injured or killed without the fault of anyone else, but part of
the normal hazards of his business, he may not recover."

                                              -5-
told the jury explicitly that it was enough if the defendant's

negligence (in one case) or act or omission (in the other)

"played any part, no matter how small," in bringing about the

injury.2

           Finally, Ana Matos says that the district judge abused

her discretion in allowing Silva Fishing's expert to testify.

The main objection is that although a former Coast Guard officer

and long a marine surveyor and accident investigator, the expert

had never served in a commercial fishing operation.   This is not

only the same objection, but also the same expert who testified

in Hopkins; and our decision in Hopkins applies equally in this

case.

           Affirmed.




     2
     In its instruction, the district court told the jury that
proximate cause existed if an act or omission "played any part,
no matter how small, in bringing about or actually causing the
injury."

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