
USCA1 Opinion

	




          May 30, 1995                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 94-2289                         PUERTO RICO MARINE MANAGEMENT, INC.,                                 Plaintiff, Appellee,                                          v.                               EMPRESAS MASSO, ET AL.,                               Defendants, Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Jose A. Hernandez  Mayoral with whom Rafael Hernandez Mayoral  was            __________________________           ________________________        on brief for appellants.            Carlos  J. Quilichini with  whom Juan  Carlos Gorbea  was on brief            _____________________            ___________________        for appellee.                                 ____________________                                 ____________________               COFFIN,  Senior Circuit  Judge.   This is  an appeal  from a                        _____________________          judgment, following a bench trial, for plaintiff vessel operator,          Puerto Rico  Marine Management (PRMMI),  in its  suit to  collect          freight charges for a deficit of cargo placed under a Time Volume          Agreement (TVA) by defendants  (collectively, Masso).1  Under the          TVA,  covering the  period from  May 1990  to August  1992, Masso          agreed  to  ship  a  minimum  of  500  "trailers"  annually  from          continental  United States to Puerto Rico.  The complaint alleged          that  during this  period  only 410  shipments  were booked;  the          deficit was 590.  Applying the appropriate tariff of "$250.00 per          container/trailer," the total claimed deficit was $147,500.               Masso's  response  to  the  complaint  was  the  affirmative          defense that PRMMI  breached the  TVA.  In  the pre-trial  order,          submitted  to  the  court  by both  parties,  Masso  outlined its          defense: the TVA (through  its use of ther judges  are tempted to          resort  to  "preachy"  opinions, issuing  admonitions  about  the          future which they and their courts are unlikely to follow up with          vigor.   An example is  the unhappiness of  appellate courts with          some of the  closing arguments  to the jury  made by  overzealous          prosecutors.  In an  otherwise error-free case it is  tempting to          shake  a judicial  finger and  say, "We  shall not in  the future          permit  such conduct."    But the  next  case comes  along,  with          overwhelming evidence  of guilt and in the main a fair trial.  An          appellate  court will be reluctant to reverse and  will therefore                                        ____________________               1   Empresas  Masso, Inc.,  Bloques Masso,  Inc., Ferreteria          Masso, Inc., Caguas Lumber Yard, Inc., Masso Enterprises, Inc.          look to see  if objection was made to  the offending argument, if          the judge made an  immediate curative instruction, and if  in the          context  of the entire  case the remarks were  likely to have had          any effect.  One learns from long and frustrating experience that          one reversal is worth a hundred lectures.               In such  matters as  these, affecting  the  manner in  which          cases  are tried and the rules and standards governing judges and          counsel,  an appellate court  may on occasion  rest its decision,          not  on a constitution, statue  or regulation, or  even upon case          precedents,  but  upon its  own  supervisory  authority over  the          agencies and courts within its jurisdiction.  It is a power to be          used  sparingly, but does allow  fine tuning not  confined to the          precise issues  raised by a particular  case.  When a  panel of a          federal court decides to take  this route, it usually  circulates          its proposed  rule to all  members of the  court for comment  and          agreement. It is understandable that an  attorney in an appellate          court is  so immersed in  her case  that her  attention has  been          rivetted on winning  a victory.  "Victory"  is usually translated          into the simple  alternatives: affirmance or  reversal.  But  the          court itself must confront a  number of collateral choices having          to do with the kind, form, finality, secondary  consequences, and          timing  of  decision.   Some  of these  choices will  be  seen as          immensely  important to the  litigants and  their counsel.   Some          chiefly concern the internal  workings of the court.  But all are          worth some thought on the part of counsel . . . in order to be of          help both to themselves and the court.                                         -3-               2.   Unfinished business.    Before a  conference ends,  the                    ___________________          court must  reflect on whether decision is the next step.  It may          be that, before a novel approach is taken, supplemental memoranda          should  be requested.  Or  perhaps at oral  argument they already          have  been.  Or it  may be that, at  oral argument, the court has          suggested that the parties attempt to settle the case,  or that a          compromise resolution be  explored.  And  sometimes, when a  case          involving the same issue is pending before the Supreme Court, the          court  will simply  defer its  decision until  The Supreme  Court          acts.                  3.   Disposition  choices.   The  two  options for  a  final                    ____________________          decision are, of course, to affirm or reverse.  An added subtlety          is a decision whether  or not to have  the mandate (the  document          that  evidences the fact that  it the decision  is now effective)          issue  immediately or  to  allow some  time  for a  petition  for          certiorari (i.e., a request that the case be accepted for review)          __________          to be presented to the Supreme Court of the United States.               Decisions that are somewhat less  than final are those which          remand  the case to the trial court.   There are many variants: a          remand  with  instructions  only  to  "institute  proceedings  in          accordance  with   this  opinion;"     a  remand   with  specific          instructions   (e.g.,  in a  successful habeas  corpus  appeal, a          remand to the federal district  court with instructions to  grant          the  prisoner's freedom  unless the  state initiates a  new trial          within ninety days);  a remand for  clarification of the  court's          reasoning,  or  for essential  fact  finding;  a  remand with  or                                         -4-          without a requirement to open the record for additional evidence;          and  a  remand  to   a  different  judge.    Each  one  of  these          possibilities could be fraught  with significance for a litigant;          an  advocate would  do well  to anticipate  these choices  and be          prepared to give advice to the court.               Then  there  are critical  choices as  to  timing.   A basic          question is  whether a new rule  or an extension  of existing law          should be applicable prospectively or retrospectively.  But there          are  timing questions  relating to  the issuance  of the  instant          decision.   Sometimes the  panel (if  it is  a  federal court  of          appeals)  knows that  one of  the issues  is being  considered by          another panel in another  case; some checking with that  panel is          indicated.    The resry,  and conceded  that  a number  of lumber          shipments had  been  made for  Masso on  lo/lo vessels.   He  did          testify that  "for a period of  time" in the latter  part of 1990          there was no  ro/ro vessel  servicing Jacksonville,  and he  also          stated  that at sales meetings, in trying to anticipate revenues,          he would review contracts, including Masso's TVA.  Unable to give          more specific  testimony because of the sanctions  imposed by the          court,  he gave his conclusory opinion that PRMMI did not provide          MASSO with enough ro/ro service to comply with the TVA.               This evidence, even viewed most charitably for defendants on          the  assumption that only  ro/ro's were contemplated  by the TVA,          might support a finding  that to some extent  at some time  PRMMI          did not  live up  to  its undertaking.   But  it  is clear  that,          contrary to  defendants' initial contention, PRMMI  did not phase                                         -5-          out its ro/ro fleet during the contract period.  Two of the three          ro/ro  vessels remained in service for the  duration.  It is also          clear  that, except for one  period of time  of uncertain length,          there  was no  failure  to provide  ro/ro  service to  any  port.          Generally, the  temporary unavailability of a  vessel resulted in          biweekly rather than weekly service for a post.               What is left completely  unclear is any basis  for assessing          the magnitude of  any breach on PRMMI's part, to  determine if it          was  sufficient to justify Masso's failure to book more than half          of its promised shipments during the two-year period.  The record          is  bereft of data as  to dates, ports,  cargoes, and substituted          arrangements relating  to shipments frustrated because  of a lack          of  proper equipment.  Moreover,  the record contains no evidence          of  expressed   unhappiness,  oral   or  written,  over   PRMMI's          performance;    acquiescence    and   waiver    remain   distinct          possibilities.  On all  of this, we remind  ourselves, defendants          bore  the  burden of  both going  forward  with evidence  and the          ultimate burden of persuasion.               On the record, therefore, we must  rule, as a matter of law,          that  defendants  simply  failed  to  support  their  affirmative          defense.               AFFIRMED.                                         -6-
