
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 96-1727                       TRANSAMERICA PREMIER INSURANCE COMPANY,                                Plaintiff - Appellee,                                          v.                               THOMAS J. OBER, ET AL.,                               Defendants - Appellees.                                 ____________________                        EL/CAP TOWING & TRANSPORTATION, INC.,                               Defendants - Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                _____________________               Elizabeth  S.  Morley,   with  whom   William  W.   Willard,               _____________________                 _____________________          Bernstein, Shur,  Sawyer & Nelson,  Louis G. Juliano  and Bigham,          _________________________________   ________________      _______          Englar, Jones & Houston were on brief for appellant.          _______________________               Stephen  M. Martin,  with  whom Dante  Mattioni, Francis  X.               __________________              _______________  ___________          Kelly and Mattioni, Mattioni  & Mattioni, Ltd. were on  brief for          _____     ____________________________________          appellee C&G Excavating, Inc.                                 ____________________                                  February 28, 1997                                 ____________________                    TORRUELLA, Chief Judge.  Crossclaim Defendant-Appellant                    TORRUELLA, Chief Judge.                                ___________          El/Cap Towing and Transportation,  Inc. ("El/Cap") appeals from a          jury verdict finding it  and co-crossclaim Defendant Henry Marine          Services,  Inc.   ("Henry   Marine")  liable   to  appellee   C&G          Excavating, Inc. ("C&G") for negligence in towing various vessels          and properties belonging to C&G.  Arguing an insufficient showing          of legal causation, El/Cap contends that the trial court erred by          denying  its motions for a directed verdict.  In the alternative,          El/Cap  argues that the district court erred by not providing the          jury  a  more  specific  special  verdict  form,  and  by denying          El/Cap's Motion for  a New  Trial or for  Amendment of  Judgment.          Finding no error, we affirm.                                      BACKGROUND                                      BACKGROUND                      El/Cap and Henry Marine were two of several companies          that participated in towing  C&G equipment to a dredging  project          in Saco, Maine.1  C&G claimed that El/Cap and Henry Marine, while          towing, negligently caused the following damages to C&G property:          damage to  a dredge (the  AMBER II), loss  of a tender  boat (the          LITTLE GEORGE), loss of some pipeline,  and loss of a pipe barge.          C&G's negligence claims were brought before the district court of                                        ____________________          1  This suit initially surfaced against the backdrop of a variety          of  legal  disputes  between  contractors  and  the  Transamerica          Premier Insurance Company, which had issued performance bonds for          the payment of various contractors involved in a dredging project          in  Saco,  Maine.   C&G  owned  equipment  used  in the  dredging          project.  All claims were settled before trial with the exception          of the crossclaims between  C&G and El/Cap and Henry  Marine that          are before us now.                                           -2-          Maine under both  diversity jurisdiction, 28  U.S.C.   1332,  and          maritime jurisdiction, 28 U.S.C.   1333.                     Many of the facts essential to a finding  of negligence          were vigorously contested  by the  parties at trial.   Because  a          jury found El/Cap and Henry Marine liable, we must view the facts          in  the   light  most  favorable  to  C&G,  draw  all  reasonable          inferences in C&G's favor, and refrain  from assessing either the          credibility  of witnesses  or  the relative  weight of  evidence.          Lama v. Borr s, 16 F.3d 473, 475 (1st Cir. 1994).  As reviewed in          ____    ______          this light, the tale proceeds as follows.                    In November  1992, C&G entered into  a Bareboat Charter          Agreement with East Coast Marine whereby East Coast Marine leased          C&G equipment it  needed for the  Saco, Maine, dredging  project.          Specifically,  East Coast Marine  hired the AMBER  II, the LITTLE          GEORGE,  the  pipe  barge,  and  some  pipeline  (together,  "the          equipment") from C&G.   Although East Coast Marine  had initially          hired  El/Cap to tow the equipment from Lewes, Delaware, to Saco,          Maine,  Henry Marine  was ultimately  given the  towing job.   In          their transport arrangements with Henry Marine, East Coast Marine          and C&G instructed  that the  equipment must be  towed along  the          intracoastal waterway.                       Heading  north  in  the  intracoastal  waterway,  Henry          Marine met with delays and setbacks in  successfully carrying out          the tow.  At  Hereford inlet, for example, the Henry Marine boats          ran  aground and  had difficulty  navigating the  equipment under          certain bridges.  At  this point, El/Cap agreed to  assist in the                                         -3-          tow,  and arranged  to have Henry  Marine leave  the intracoastal          waterway and meet  El/Cap's tug,  the TOMMY G,  in the open  seas          outside  of Hereford Inlet.2   None of the  equipment was damaged          while  towed  by Henry  Marine in  the  period prior  to El/Cap's          involvement in the tow.   The decision to transfer  the equipment          during  rough weather and to continue heading in the direction of          New  York  despite  rough  weather  was  at  the  heart  of  this          negligence suit.   Although the evidence regarding who  made this          decision was  conflicting,   there was  enough testimony  for the          jury to decide that El/Cap made the decision.                     At the time El/Cap instructed the Henry Marine boats to          bring  the equipment  to  meet El/Cap's  tug,  the TOMMY  G,  the          forecast called for four to six foot seas.  The seas were rougher          than  forecast when Henry Marine brought the equipment out to the          TOMMY G,  and the AMBER  II broke away  from a Henry  Marine tug.          When the TOMMY  G tried to  secure the AMBER  II, both the  Henry          Marine  tug and the TOMMY G  collided with, and caused damage to,          the AMBER II.  Further damage was caused to the AMBER II when, in          the course of transferring pipeline to the TOMMY G's tow, a Henry                                        ____________________          2    The  record  contains  conflicting  evidence  regarding  the          decision to take the equipment out of the intracoastal waters and          into  the  ocean.    El/Cap  draws  our  attention  to  testimony          suggesting that it was forced to rescue the equipment negligently          towed by Henry Marine, and that Henry Marine and C&G asked El/Cap          for  assistance and  knowingly  made  a  decision  to  leave  the          intracoastal waters.  C&G, on  the other hand,  offered testimony          showing  that El/Cap arranged to  meet the Henry  Marine boats in          the  open sea.  As discussed infra, there was sufficient evidence                                       _____          for a jury to find  El/Cap responsible for the shift to  open sea          travel.                                          -4-          Marine boat struck the AMBER II again.  The  loss  of the  LITTLE          GEORGE, which was tied to the AMBER II, occurred later.                      Because of the rough weather, one Henry Marine tug, the          RACHEL MARIE, agreed  to continue  to tow the  pipeline and  pipe          barge to New  York.  The RACHEL MARIE needed  to refuel, however,          and El/Cap took control of the line from the pipe barge, tying it          to the  AMBER II, to allow  the RACHEL MARIE to  return to shore.          The   RACHEL  MARIE   communicated  that   it  would   return  in          approximately two hours.  Instead of waiting for the RACHEL MARIE          to  return, the TOMMY G continued to  head for New York, with all          of the equipment in tow.  The TOMMY G did not seek shelter during          its voyage to New York.  In rough waters, the LITTLE GEORGE broke          loose, collided with the pipe barge, and sank.  The LITTLE GEORGE          was  not an ocean-going  vessel.  Some pipeline  was also lost en          route to New York.                    When the TOMMY  G arrived in New York, it  was towing a          damaged  dredge  (the AMBER  II) and  a  damaged pipe  barge that          carried the remaining pipeline.  In New York, El/Cap, through its          principal,  Dennis Elberth, who was also the captain of the TOMMY          G, informed C&G  that it would  repair the pipe  barge before  it          left El/Cap's control.  After several days, the decision was made          by  East  Coast Marine  to  continue  transporting the  remaining          equipment  to Maine.    East Coast  Marine  called on  El/Cap  to          continue towing  the  AMBER  II.    To tow  the  pipe  barge  and          pipeline, which were not repaired by  El/Cap, East Coast Marine's          principal  John Szegda hired  two other towing  companies.  Local                                         -5-          Towing  carried  out the  tow  between New  York  and Gloucester,          Massachusetts,  at which  point another  firm, Bay  State Towing,          took over.                      El/Cap  towed  the  AMBER  II to  Saco,  Maine  without          further incident.  The pipeline  and pipe  barge sank off  of the          coast of New Hampshire while being towed by Bay State Towing, due          to a  hole in the barge  initially sustained during  the tow from          Delaware to  New York.  El/Cap  failed to repair the  hole in the          pipe barge before it left El/Cap's yard in New York.                      At  trial,  the district  court  twice  denied El/Cap's          motions for directed verdict  and also rejected El/Cap's proposed          special  verdict  form.    The  jury  awarded  $221,300  to  C&G,          apportioning liability 88%  to El/Cap and  12% to Henry  Marine.3          That figure appears to reflect  a finding of liability on all  of          the  damages claimed by C&G, including the loss of the pipe barge          and  pipeline.    Henry Marine  did  not  appear  for trial,  but          evidence regarding its  negligence was presented to the  jury and          default  judgment was  entered against  it.   El/Cap appeals  the          denial of motions for directed verdict and for new trial, as well          as the  denial of  its  proposed special  verdict form.   In  the          alternative,  El/Cap  argues  that  the damage  award  should  be          reduced by $96,000 to reflect the fact  that El/Cap is not liable          for the loss of the pipe barge and pipeline.                                      DISCUSSION                                      DISCUSSION                                        ____________________          3  In its  cross claim pleadings, C&G alleged  damages "in excess          of $258,500."                                           -6-             I.  El/Cap's Motions for Directed Verdict and for New Trial              I.  El/Cap's Motions for Directed Verdict and for New Trial                    El/Cap  argues on  appeal  that the  evidence at  trial          fails  to demonstrate that El/Cap's actions  were the legal cause          of any of  the damages  suffered during the  tow and,  therefore,          that the district court  erred in denying El/Cap's motions  for a          directed  verdict  and for  a new  trial.   Before  assessing the          merits of this argument, we note the pertinent standard of review          -- one that is decisive in shaping the outcome of our assessment.                    In reviewing the denial  of a motion for judgment  as a          matter of law  under Rule 50(a), we  conduct a plenary  review of          the  evidence "viewed  in the  light most  favorable to  the non-          movant, giving [it] the benefit of every favorable inference that          may be fairly drawn  therefrom."  Santiago Hodge v. Parke Davis &                                            ______________    _____________          Co., 909 F.2d 628, 634 (1st Cir. 1990)  (citations omitted).  "If          ___          'fair minded'  persons could draw different  inferences, then the          matter  is for  the jury."   Id.   We will not  reverse the trial                                       ___          court's denial of defendant's Rule 50(a) motion unless the facts,          seen  in the  light most favorable  to the plaintiff,  as well as          inferences  reasonably   drawn  therefrom  "'lead   to  but   one          conclusion -- that there is a total failure of evidence  to prove          the plaintiff's  case.'"   Guti rrez-Rodr guez v. Cartagena,  882                                     ___________________    _________          F.2d 553, 558 (1st  Cir. 1989) (quoting Mayo v.  Schooner Capital                                                  ____     ________________          Corp., 825 F.2d  566, 568 (1st Cir. 1987)).  Such is not the case          _____          here, as we explain below.                      The  appellant's hurdle is no  lower on an  appeal of a          denial of a Rule 59 motion for  a new trial.  We reverse only  if                                         -7-          "'the verdict is  so seriously mistaken,  so clearly against  the          law or the evidence, as to constitute a miscarriage of justice. .          . . This strict  standard of review is especially  appropriate if          the motion for new trial is based on  a claim that the verdict is          against the  weight of the evidence.'"   Guti rrez-Rodr guez, 882                                                   ___________________          F.2d at 558 (quoting  MacQuarrie v. Howard Johnson Co.,  877 F.2d                                __________    __________________          126,  128 (1st  Cir. 1989)(citations  omitted)).   Because El/Cap          does not  argue that the district  court made an error  as to the          controlling law -- which would merit de novo review -- our review                                               _______          is limited  to determining whether the district  court abused its          discretion when  it evaluated the  verdict against the  weight of          the evidence and  found no  miscarriage of justice.   Havinga  v.                                                                _______          Crowley Towing & Transp. Co., 24 F.3d 1480, 1483 (1st Cir. 1994).          ____________________________                    In considering whether the  district court's denial  of          El/Cap's Rule 50(a)  motion was  proper, we must  view the  facts          that were vigorously  contested in  this case in  the light  most          favorable  to C&G.  In  reviewing the district  court's denial of          the Rule  59 motion, our review  is also limited  because we will          only reverse  if we find an abuse of discretion.  We thus turn to          examine  the evidence  before  the jury  on  which a  finding  of          negligence could be based.                    A.  Applicable Substantive Law                    A.  Applicable Substantive Law                    Under both  Maine  and well-established  maritime  law,          "the master of a tug is required to exercise 'reasonable care and          maritime skill' with respect to  the vessel in tow."  DiMillo  v.                                                                _______          Sheepscot Pilots,  Inc.,  870  F.2d  746,  748  (1st  Cir.  1989)          _______________________                                         -8-          (quoting Stevens v. White City, 285 U.S. 195, 202 (1932) (holding                   _______    __________          tug  not  liable  as an  insurer  or  common  carrier)).4   Thus,          longstanding maritime  norms required El/Cap and  Henry Marine to          carry  out the  tow by  using such  reasonable care  and maritime          skill as prudent navigators employ for the performance of similar          services.5  A court sitting in admiralty jurisdiction may look to          the application of basic  proximate cause standards as  they have          been elaborated by the states.  Exxon Co., U.S.A. v. Sofec, Inc.,                                          _________________    ___________          116 S.  Ct. 1813,  1818  (1996).   There is  no conflict  between          pertinent maritime and  Maine tort law in this case.  Under Maine          tort  law, the  causation element  of the  tort of  negligence is          satisfied if: (1) the act or failure to act played a  substantial          part  in bringing about or actually causing the injury or damage,          and  (2) the damage was a direct result or reasonably foreseeable          ___          result  of the act or  failure to act.  Shaw  v. Bolduc, 658 A.2d                                                  ____     ______          229 (Me. 1995).                                        ____________________          4    Our  review of  the  jury  instructions  indicates that  the          district  court  correctly  outlined  the  relevant  features  of          applicable maritime tort  law.  The  lack of Maine tort  law that          either contradicts any  aspect of maritime  tort law or  pertains          specifically  to   maritime  torts  bolsters  the  trial  court's          apparent reliance on general maritime law principles.            5  Neither  party contends  that maritime law  should not  apply.          For a tort to  be considered maritime,  "it must meet two  tests:          the situs  of the tort must  be maritime (the  location test) and          the  tort must  bear  a significant  relationship to  traditional          maritime  activity (the  nexus test)."   Carey  v. Bahama  Cruise                                                   _____     ______________          Lines, 864 F.2d  201, 207  (1st Cir.  1988) (citations  omitted).          _____          Both  tests are plainly satisfied  here.  As  discussed in Carey,                                                                     _____          diversity  jurisdiction  does  not  imply that  maritime  law  be          displaced by state law.  Id. at 206-07.                                   ___                                         -9-                    The following rules of  general maritime law shed ample          light  on the duty of reasonable care and maritime skill required          of  El/Cap in this  case, and  this appeal  does not  require any          further expatiation of the law of the sea.  The degree of caution          or care  required of the  navigator of  a tug is  related to  the          nature  of  the tow  -- in  particular,  the tugboat  master must          consider the  suitability of the tow  for travel in  light of the          condition of the seas encountered.   The MERCURY, 2 F.2d 325, 326                                               ___________          (1st Cir.  1924); see also Howlett v.  The Tug DALZELLIDO, 324 F.                            ________ _______     __________________          Supp. 912, 916-17  (S.D.N.Y. 1971) (reviewing general  principles          of law relating  to towage).   A  tug's duty  of reasonable  care          includes the  duty to take into  consideration weather conditions          as  they may affect the tow.   Dimillo, 870 F.2d at 748; Chemical                                         _______                   ________          Transporter,  Inc. v. M.  Turecamo, Inc., 290 F.2d  496 (2d  Cir.          __________________    __________________          1961).   The captain  of the  tug  is charged  with knowledge  of          weather  forecasts, whether or not he had actual knowledge of the          forecasts.  The Tug DALZELLIDO, 324 F. Supp. at 917.  A breach of                      __________________          the duty of  care thus can be  found when a  tug captain makes  a          decision  that is unsafe in  light of the  weather conditions and          the  particular circumstances  of the  tow that  could reasonably          have been known.  De  Millo, 870 F.2d at  748.  It is  negligent,                            _________          for  example,  to knowingly  brave  weather  conditions that  may          imperil a flotilla.  Id. at 749.                               ___                    C&G presented two sets  of allegedly negligent acts for          the jury's consideration. First,  C&G claimed that damage  to the          AMBER II,  and the loss of the LITTLE GEORGE, were caused by: (a)                                         -10-          El/Cap's decision to  receive the  tow from Henry  Marine in  the          open ocean during inclement weather,  and (b) El/Cap's failure to          seek shelter after the  transfer at Hereford Inlet.   Second, C&G          claimed that the loss  of the pipe barge and  pipeline was caused          by El/Cap's failure to repair the pipe barge, as promised, in New          York.   Noting  that "issues  of proximate cause  and superseding          cause involve  application of law to  fact, which is  left to the          factfinder,  subject  to  limited   review,"  we  arrive  at  the          conclusion that  a rational  jury could  have accepted  C&G's two          theories  of negligence  as supported by  a preponderance  of the          evidence.  See Exxon Co., U.S.A., 116 U.S. at 1819.  Assuming the                     ___ _________________          jury credited testimony favorable to C&G, we hold that a rational          jury could have found El/Cap negligent.                    B.  Damage Sustained During the Tow to New York                    B.  Damage Sustained During the Tow to New York                    On  this appeal,  El/Cap  does not  deny  that the  C&G          vessels were ill-suited for  open ocean travel,6 nor  does El/Cap          deny  that the decision to transfer  the tow and continue in open          ocean  during poor  weather  conditions was  imprudent.   Rather,          El/Cap stresses the following two points regarding the damages to          C&G property  en route to New York:  that  El/Cap did not, in any          way,  participate  in the  decision to  transfer  the tow  off of          Hereford Inlet  during stormy weather, and  that the incompetence          of  Henry   Marine  led  "inevitably  to   the  losses  claimed."          Appellant's Brief at  14.   According to El/Cap,  it rescued  the                                        ____________________          6  C&G brought forward expert testimony in support of the finding          that the various  towed vessels were clearly unsuitable  for open          sea travel.  Testimony of Ronald Campana, Tr. at 226-27.                                          -11-          AMBER II from the  incompetent hands of Henry Marine  and brought          it  safely to  New York.   There  may be  some merit  to El/Cap's          argument.   Nevertheless, an appellate  court may  not usurp  the          function  of the  jury, and thus  we cleave  to the  facts in the          light most favorable to C&G.   The record indicates that the jury          could have accepted contrary testimony as to each of these points          emphasized by El/Cap.                    With  regard to the decision to transfer a tow that was          unsuited  for open ocean travel  in rough ocean  waters and foggy          conditions  --  a decision  that  El/Cap appears  to  concede was          negligent, see Appellant's  Brief at  15 -- the  jury could  have                     ___          found  that   El/Cap  shouldered  responsibility   based  on  the          deposition  testimony,  read  at  trial,  of  Robert  Henry,  the          principal  of Henry Marine.   Robert Henry  averred that El/Cap's          principal knew of  the nature of the tow and  agreed to take over          the tow off of Hereford Inlet, and that the captain  of the TOMMY          G instructed  that the tow  be brought  out to open  sea for  the          purposes of  the transfer.   Exhibit  127 at 56-60;  Tr. at  419.          Although  the Henry  Marine boats collided  with and  damaged the          AMBER  II,  this harm  could be  deemed  a foreseeable  result of          undertaking  an open  ocean  transfer  under  unsuitable  weather          conditions.  The  jury could have concluded that El/Cap knowingly          decided  to proceed with the  transfer of towed  vessels that are          unsuited for open  ocean travel,  during rough weather.   Such  a          conclusion is a sufficient ground for a finding of tort liability                                         -12-          as to the  damage to the  AMBER II, since  the AMBER II  suffered          damage during the transfer.                    Additionally, C&G offered  the expert  testimony of  an          experienced marine captain  who opined that the Henry Marine tugs          were following the lead of El/Cap's dominant tug, and that El/Cap          failed to  maintain  professional  standards  by  performing  the          transfer under the circumstances.  Testimony  of Ron Campana, Tr.          at 229-31. El/Cap's duty to exercise reasonable care and maritime          skill   required  that   attention  be   given  to   the  special          circumstances of this tow, and a reasonable jury could have found          that they fell short of that duty by undertaking the transfer.                    Even assuming, as El/Cap argues, that the principals of          C&G and East  Coast Marine,  eager to speed  the towing  process,          decided that El/Cap should  relieve Henry Marine of the  AMBER II          off of  Hartford Inlet, this does  automatically exonerate El/Cap          from liability.  The jury may even have accepted El/Cap's version          of  the events surrounding the decision to leave the intracoastal          waterways and  still found that the  TOMMY G failed  to carry out          the  tow prudently  by  participating  in  the transfer  in  poor          weather.   Under  certain circumstances,  the duty  of reasonable          care and maritime  skill may require that  a tug captain  delay a          tow,  or otherwise  make  ad hoc  adjustments  to the  course  or          schedule  that was initially planned by its client.  Cf. DiMillo,                                                               ___ _______                                         -13-          870 F.2d at 748-49 (tug should not have set out in bad weather).7                    With regard  to whether  negligent acts by  El/Cap were          the legal cause of the damages after the transfer, the jury could          have  concluded  that  such  damage  flowed  substantially   from          El/Cap's  decisions  and  was  not  inevitably  caused  by  Henry          Marine's actions.  Even assuming that  the flotilla was "stranded          in  the  Intercoastal   Waterway  as  a  direct  result   of  the          incompetence of Henry Marine," Appellant's  Brief at 14, the jury          could have found  that El/Cap need not have proceeded to New York          without   stopping.8    C&G   brought  forward  expert  testimony          indicating that the TOMMY  G had the opportunity to  seek shelter          before  the LITTLE GEORGE sank, but instead continued to head for          New York harbor.  Tr. at 231.  The LITTLE GEORGE, unfit for ocean          travel,  was lost as it was being towed by the TOMMY G toward New          York  harbor.  C&G's expert opined not  only that the TOMMY G was          the dominant tug, responsible for coordinating the actions of the                                        ____________________          7  We also note that a storm did not suddenly arise in the course          of the  TOMMY G's tow and  that El/Cap was, or  should have been,          aware  of  the  weather   conditions  prior  to  undertaking  the          transfer.   Therefore, El/Cap cannot argue that this is a case of          a tug  captain acting  in extremis.   See, e.g., Boudoin  v. J.R.                                 ___________    ___  ____  _______     ____          McDermott  & Co., 281 F.2d 81, 84 (5th Cir. 1960) (distinguishing          ________________          in extremis cases -- which require that "something more than mere          ___________          mistake  of judgment by the  master" be shown  if, "without prior          negligence, a vessel  is put  in the very  center of  destructive          natural  forces" -- from case  where tug captain  knew of weather          conditions before making decisions).           8    We note  as  well that  the  jury could  have  accepted that          El/Cap's participation  was needed while also  concluding that it          failed  to  use appropriate  equipment  for  such  a sea  rescue,          because the TOMMY G was not able to enter shallow coastal waters.                                         -14-          Henry Marine tugs, but also that the TOMMY G was responsible  for          the  sinking of the LITTLE GEORGE.  Tr. at 236.  Thus, a rational          jury could have found that the  actions of the El/Cap tug, by not          seeking safety,  proximately  caused the  damages  that  occurred          between Delaware and New York.                    C.  Loss of the Pipe Barge and Pipeline                     C.  Loss of the Pipe Barge and Pipeline                    El/Cap promised to repair  the holes in the  pipe barge          before  allowing it to  leave its yard  in New York.   C&G argued          that the failure  to make these repairs was a  legal cause of the          loss of the  pipe barge  and pipeline.   El/Cap, however,  argues          that no jury could have found it liable for the loss of the  pipe          barge because, even if  El/Cap promised to repair the  pipe barge          and failed to  do so,  the principal of  East Coast Marine,  John          Szegda,   removed  the   pipe  barge   from  El/Cap's   dock  and          subsequently  assured the  other towing  companies that  the pipe          barge  was seaworthy.  According  to El/Cap, such  actions on the          part  of  Szegda  "must  be  viewed  as  breaking  the  chain  of          causation."  We disagree.                      El/Cap does  not deny  on  appeal that  the jury  could          conclude  that  the pipe  barge ultimately  sank  as a  result of          damages that El/Cap  had promised to repair.   Thus, it  is legal          (or  proximate) causation, and not  factual causation, that is at          issue.  El/Cap's argument regarding legal causation  is that East          Coast Marine's  assurances to  later towers  that  the barge  was          seaworthy cuts off  El/Cap's liability.   That East Coast  Marine          would  try to complete  the tow of  that pipe barge  to Maine was                                         -15-          certainly  foreseeable.   And, furthermore,  the jury  could have          reasonably concluded that Szegda's assurances of seaworthiness to          the later towers were based on his belief that El/Cap had in fact          repaired the pipe  barge as  promised.  Although  El/Cap did  not          affirmatively indicate to  Szegda or  C&G that it  had fixed  the          pipe  barge  such  that it  was  seaworthy,  it  remained silent.          El/Cap concedes that Dennis Elberth "acquiesced in the removal of          the  pipe and barge from [El/Cap's] sea wall."  Appellant's Brief          at 18.  This acquiescence, in the wake of a promise to repair the          barge before permitting it to continue  to Maine, may have led  a          rational jury to conclude  that El/Cap breached its duty  of care          with regard to the  pipe barge.   Thus, despite the general  rule          that an owner of  a tow is responsible  for warranting its  basic          seaworthiness,9 we agree with the following statement made by the          district court in  the course  of denying El/Cap's  motion for  a          directed verdict:                     [T]here is a basis  upon which the jury could                    reasonably  conclude  from the  evidence that                    El/Cap should not have released that pipeline                    in New  York, especially after it  had made a                    commitment to  Mr. Todd that it  would not do                    so until the repairs had been made.            Tr. at 318.  It was within the province of the jury as factfinder          to determine that El/Cap's  acts and omissions proximately caused          the  sinking of the pipe  barge and pipeline,  even though El/Cap          was  not towing  the barge  when it  sank.   We note  that El/Cap          presented its argument regarding  superseding causes of damage at                                        ____________________          9  See, e.g., South, Inc. v. Moran Towing & Transp. Co., 360 F.2d             ___  ____  ___________    __________________________          1002, 1005 (2d Cir. 1966) (collecting cases).                                         -16-          closing argument.   The jury's verdict,  apparently granting full          damages,  can  therefore  be  regarded as  a  rejection  of  this          argument.10                      All of  these considerations  lead us to  conclude that          the denials  of  El/Cap's motions  for directed  verdict and  new          trial are not tantamount to abuses of discretion.   Because we do          not displace the jury's  finding of liability as to  the pipeline          and pipe barge, we also decline El/Cap's invitation to adjust the          jury's damage determination to reflect  no liability for the loss          of the pipeline and pipe barge.11                              II.  Special Verdict Form                              II.  Special Verdict Form                    Finally, El/Cap  casts the trial  court's rejection  of          El/Cap's  proposed special verdict form  as reversible error.  If                                        ____________________          10  Furthermore,  at no  time did El/Cap  specifically request  a          jury  instruction  regarding  whether  certain  factual  findings          (later acts) would imply a break  in the chain of legal causation          with regard to the damage to the pipe barge. Hence, under Federal          Rule  of Civil Procedure 51, El/Cap  may not argue on appeal that          the jury's attention  should have been drawn more specifically to          subsequent supervening  causes of  the pipe  barge's loss.   See,                                                                       ___          e.g., Parker v. Nashus, 76 F.3d 9, 12 (1st Cir. 1996).          ____  ______    ______          11   El/Cap's basic contention is  that it should not  be made to          pay for lost pipeline; it does not claim that the jury's award is          otherwise  unreasonable.  That is, El/Cap does not argue that the          damage award is excessive in the  sense of not being based on the          jury's findings  of  liability; rather,  El/Cap challenges  those          findings of liability.  Indeed, the jury award of $221,300 is not          unreasonable, assuming  the jury found the  defendants liable for          all of the damages  claimed.  Trial testimony, considered  in the          light most favorable  to the verdict,  indicated that the  LITTLE          GEORGE and its  cargo, which  sank, were worth  $102,333, Tr.  at          283; that the damage  suffered by the AMBER II  totalled $68,300,          Tr. at 281; and that the value of the lost  pipeline was $76,427,          Tr. at 284.  Thus, in  light of direct replacement or repair cost          estimates  put forward by C&G's expert at trial, the jury damages          award is far from unreasonable.                                           -17-          the claim of error  had been properly preserved, we  would review          the district court's refusal  to use the verdict form  offered by          El/Cap, and any challenge  to the wording of the  special verdict          form  used under Rule 49(a), for abuse of discretion.  See, e.g.,                                                                 ___  ____          Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182,          __________________________    _____________________          190 (4th Cir. 1994) (collecting cases).                      However, our review in  this case is further restricted          to  "plain error"  review because  El/Cap did  not object  to the          special verdict  form after the  instructions had been  given and          before the jury retired. See Fed. R. Civ. P. 51;  Clausen v. SEA-                                   ___                      _______    ____          3, Inc., 21 F.3d 1181, 1195-96 (1st  Cir. 1994).  Although El/Cap          _______          proposed an  alternative verdict form,  it was required  to renew          any objections after  the jury  instructions, and did  not do  so          despite being explicitly  reminded by  the court of  the need  to          preserve  its objections  for  appeal.   We  therefore limit  our          review to plain error.                    We  discern no  error, let  alone  plain error,  in the          trial  court's rejection of El/Cap's verdict form in favor of its          own.   The trial court has  broad discretion in crafting,  and in          deciding to use, special verdict forms.  See  Smith  v. Lightning                                                   ___  _____     _________          Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988).  The verdict          _________________          form used by  the court,  attached as an  appendix, required,  in          plain  and  unmistakable terms,  the jury  to  make a  finding of          negligence  and legal  causation  with  regard  to  each  of  the          defendants, to  determine the  extent of recoverable  damages, to          assess comparative negligence, and to apportion fault.  Construed                                         -18-          against the  background of the jury  instructions, which properly          set out the duty  of reasonable care and maritime  skill required          in  the towing context, see  Tr. at 587-95,  and which instructed                                  ___          the  jury to make determinations  of liability by a preponderance          of evidence as "to each particular claim" made by C&G, see Tr. at                                                                 ___          597-98,  this verdict  form fully  and fairly  put the  issues of          negligence raised in the case before the jury.  See, e.g., Putnam                                                          ___  ____  ______          Resources v. Pateman, 958 F.2d 448, 455 (1st Cir. 1992) ("[I]t is          _________    _______          well  established that verdicts must be construed in light of the          totality of the surrounding circumstances,  including the court's          instructions.").  On plain  error review, our task ends  with our          finding that the wording  of the verdict  form did not hinder  or          prevent  the jury from making any of  the relevant findings as to          damages  that they had  been properly instructed  by the district          court to  make.12    Hence,  there  is  no  threat  of  a  "clear          miscarriage of justice" or  of an error affecting  the "fairness,          integrity or  public reputation of judicial  proceedings."  PHAV,                                                                      ____          915 F.2d at 769  (quoting Smith v. Massachusetts Inst.  of Tech.,                                    _____    _____________________________          877 F.2d 1106, 1109 (1st Cir. 1989)).                                      CONCLUSION                                      CONCLUSION                                        ____________________          12  The significant difference between El/Cap's proposed form and          the form  used by the court  is that El/Cap's  form required that          the  jury write down a separate finding  of damages for each item          of C&G property  at issue.  The district court's  decision not to          list  each  of  the  C&G  properties separately  in  the  damage-          assessment portion of the verdict form simply does not, as El/Cap          argues, prevent  the jury  from assessing the  negligence of  the          parties as to each damaged item.                                         -19-                    For the reasons put forward in this opinion, we find no          error  in any  of the  trial court's  actions challenged  on this          appeal, and therefore affirm the judgment entered by the district                                affirm                                ______          court pursuant to the jury verdict.                                         -20-                                       Appendix                                       Appendix          The verdict form used below read as follows::                    1.  Was Defendant El Cap Towing Company, Inc.                    negligent and  was  such negligence  a  legal                    cause  of damages sustained by the Plaintiff,                    C&G Excavating, Inc.?    YES ____  NO ____                          (Answer Question No. 2)                         (Answer Question No. 2)                    2.  Was Defendant Henry  Marine Company, Inc.                    negligent  and  was such  negligence  a legal                    cause of damages  sustained by the Plaintiff,                    C&G Excavating, Inc.?  YES ___  NO___                         (If the answer  to either  Question                         (If the answer  to either  Question                         No. 1  or No.  2  is "Yes,"  answer                         No. 1  or No.  2  is "Yes,"  answer                         question  No. 3;  otherwise, answer                         question  No. 3;  otherwise, answer                         no further questions.)                         no further questions.)                    3.    What is  the  total  amount of  damages                    sustained by the  Plaintiff, C&G  Excavating,                    Inc., as a result  of the combined negligence                    of  Defendants Henry Marine Company, Inc. and                    El Cap Towing Company, Inc.?                    _______________________________    $_________                      (Write out in words)               (Figures)                      (Write out in words)               (Figures)                         (Answer Question No. 4)                         (Answer Question No. 4)                    4.   Was the Plaintiff, C&G Excavating, Inc.,                    at  fault and was such fault a legal cause of                    Plaintiff's damages?  YES ____  NO ____                         (If you have answered  Question No.                         (If you have answered  Question No.                         4 "NO," answer  Question No. 6;  if                         4 "NO," answer  Question No. 6;  if                         applicable;  If  you have  answered                         applicable;  If  you have  answered                         "YES," answer Question No. 5.)                         "YES," answer Question No. 5.)                    5.   To what  amount should the damages to be                    recovered by Plaintiff, C&G Excavating, Inc.,                    from  the Defendants  be reduced,  having due                    regard   for  the   nature   and  extent   of                    Plaintiff's   fault  legally   causing  those                    damages?                    _____________________________      $_________                      (Write  out in  Words)                                           (Write  out in  Words)                                         (Figures)                    (Figures)                                         -21-                      (If you have answered both Question No. 1                      (If you have answered both Question No. 1                      and No.  2 'YES," answer  Question No. 6;                      and No.  2 'YES," answer  Question No. 6;                      otherwise, answer no further questions).                      otherwise, answer no further questions).                    6.   Apportionment of Fault:  What portion of                         Apportionment of Fault                    the total fault  of all  the parties  legally                    causing  or   substantially  contributing  to                    causing the  damages  you have  found  to  be                    sustained by the  plaintiff, C&G  Excavating,                    Inc., do  you  attribute (by  percentage)  to                    each  of  the   defendants,  El  Cap   Towing                    Company, Inc. and Henry Marine Company, Inc.?                      (a)      El   Cap   Towing   Company,  Inc.                    __________%                      (b)  Henry Marine Company, Inc.  __________%                                         -22-
