
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2212                                  KENNETH J. LEWIS,                                Plaintiff, Appellant,                                          v.                              PACIFIC-GULF MARINE, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Thomas  J. Boyle with whom  Law Offices of Thomas J. Boyle were on            ________________            ______________________________        briefs for appellant.            Brian  B.  Kydd  with  whom  Kneeland  & Kydd  was  on  brief  for            _______________              ________________        appellee.                                 ____________________                                    August 2, 1996                                 ____________________     1           Per  Curiam.  Kenneth Lewis was injured while welding on                 ___________     2      the M/V  NOSAC RANGER, an  automobile-carrying ship.   He now     3      appeals from the  judgment entered against  him after a  jury     4      trial on  his negligence and  unseaworthiness claims  against     5      Pacific Gulf Marine,  a Louisiana corporation that  owned and     6      operated the ship.  He  raises several objections to the jury     7      instructions and complains of the  failure to grant him a new     8      trial.  After considering all claims of error, we affirm.     9           The relevant events  are straightforward although  there    10      is some conflict  in the testimony as to details.  Lewis went    11      aboard  the  NOSAC  RANGER  as  a  licensed  third  assistant    12      engineer on  July 7,  1990.  He  had extensive  experience in    13      welding,  but had  done little  welding on  ships.   As third    14      assistant engineer  he was expected  to do some welding.   In    15      fact,  he  completed  several  welding  tasks  on  the  ship,    16      including an overhead weld.   On  August   8,  1990,   Lewis'    17      supervisor,   First  Assistant   Engineer  Donald   Ricciuti,    18      assigned him  the task of welding a bracket to the ceiling of    19      the ship's workshop to steady a drill press.  Lewis testified    20      that he requested  assistance when Ricciuti assigned  him the    21      job, while  Ricciuti testified  Lewis  did not,  but that  he    22      would have  assigned an  assistant if asked.   In  any event,    23      Ricciuti did not assign anyone to help Lewis.    24           To weld  the bracket, Lewis  needed to be able  to reach    25      the ceiling.  He placed  a stepladder beside the drill press,                                         -2-                                         -2-     1      climbed  to the third  rung, and stood  with one foot  on the     2      ladder and the other on a  metal bench beside it.  He  worked     3      on  the task for  nearly three  hours.   He had  some trouble     4      welding, apparently  either because  he had  set the  welding     5      machine to deliver too much current or because  the vibration     6      of the  ship made it  difficult to hold the  welding tool the     7      proper distance from the metal.  While attempting to complete     8      the weld, he  lost his balance and fell backward  to the deck     9      some three feet below, injuring his back.    10           In a complaint filed in January 1993, Lewis alleged that    11      his  injuries resulted  from  the defendant's  negligence and    12      that the  vessel was unseaworthy  in several respects.   As a    13      basis for both  claims, he asserted that  the ship's workshop    14      was dangerously  cluttered, and that the  defendant furnished    15      him with defective or unsuitable equipment, failed to provide    16      him  with adequate help,  and failed adequately  to supervise    17      him.  After a five-day trial, the jury returned a verdict for    18      the defendant.  The trial  judge denied a timely filed motion    19      for a new trial.    20           1.   On  appeal,  Lewis  concentrates  on  the  district    21      judge's   answer  to  a   question  the  jury   asked  during    22      deliberations.  The jury asked: "Would lack of supervision by    23      a superior officer  constitute negligence  by the  defendant?    24      E.G.,  not inspecting Mr. Lewis'  progress."  The judge heard    25      argument from the parties and  then instructed the jury  that                                         -3-                                         -3-     1      whether  Ricciuti's conduct  was  negligent  depended on  the     2      relative  responsibilities of Lewis and his supervisors.  The     3      judge  directed  the  jury  to  engage  in  a  "weighing   of     4      respective  duties  of  the  parties,"  by  considering  what     5      responsibilities Lewis assumed as a third assistant engineer,     6      and considering  whether in  light of those  responsibilities     7      Ricciuti  should have supervised him more carefully.  Neither     8      party objected after the instruction was given.     9           The general raise-or-waive  rule for objections to  jury    10      instructions  applies to a court's answer to a question asked    11      by the jury during deliberations.  See Smith v. Massachusetts                                               ___ _____    _____________    12      Inst. of Technology, 877 F.2d 1106, 1109-10 (1st Cir.), cert.            ___________________                                     _____    13      denied, 493 U.S.  965 (1989).  Because  Lewis' counsel failed            ______    14      to object  after the new  instructions were given  and before    15      the  jury  retired  to  deliberate  further,  we  review  the    16      instruction only for plain error.  Id.                                               ___    17           In all  events, Lewis'  basic position  is  wrong.   His    18      proffered alternative answer  to the question, a  bare "yes,"    19      is at  least potentially  misleading:  whether  a failure  to    20      supervise an  employee in  the conduct  of a  particular task    21      constitutes  negligence  depends  on whether  the  degree  of    22      supervision  was  reasonable  in   the  circumstances.    Cf.                                                                      ___    23      Robinson v.  Zapata Corp., 664  F.2d 45, 48 (5th  Cir. 1981).            ________     ____________    24      As  the proffered alternative  instruction was incorrect, the                                         -4-                                         -4-     1      judge was under no obligation to give it.  Parker v.  City of                                                       ______     _______     2      Nashua, 76 F.3d 9, 12 (1st Cir. 1996).            ______     3           Lewis is  also mistaken  in asserting  that the  judge's     4      answer constituted an instruction on the "primary duty rule,"     5      a  doctrine that  exonerates an  admiralty  defendant if  the     6      plaintiff's injury arose from the plaintiff's own breach of a     7      contractual duty  to  the employer.   Lewis  argues that  the     8      doctrine  may  be applied  only  when  an  employee is  in  a     9      supervisory position and that it was  wrongly applied to him.    10      Although   the  judge  borrowed   language  from  a  decision    11      involving the primary duty rule, see Bernard v. Maersk Lines,                                             ___ _______    _____________    12      Ltd., 22 F.3d  903, 907 (9th  Cir. 1994), he  did not give  a            ____                                              ___    13      "primary duty" instruction here.    14           Rather, the judge said that Ricciuti's duty to supervise    15      Lewis  depended  on  what   Ricciuti  could  reasonably  have    16      expected  Lewis to  accomplish without  supervision--and what    17      Ricciuti  could reasonably expect  naturally depended  on the    18      scope of Lewis' duties as third assistant engineer as well as    19      his  former welding  experience.   The  question was  not, as    20      Lewis  suggests, whether  Ricciuti had  a  duty to  supervise    21      Lewis, but rather  what the scope of the duty was and whether    22      in these particular circumstances the duty was breached.  The    23      instruction  explained  the problem  and  offered  a rational    24      framework  for answering it.   The instruction  was certainly    25      not plain error, if error at all.                                         -5-                                         -5-     1           2.   Lewis  also argues that  the judge erred  in making     2      the following statement (the emphasis is ours) and in denying     3      Lewis'  related later  motion to  grant a  new trial  to hear     4      contrary evidence:     5           If, on the  other hand, you conclude that  the breach of     6           or the failure to provide supervision to a person who is     7           an experienced welder  who is brought onto the vessel to                                        _________________________________     8           do  welding,   who  conducts   welding  without   direct                 ___________     9           supervision  under other  circumstances, is  not one  of    10           those set of circumstances which deprives someone of the    11           care or the seaworthy vessel that he's entitled to, then    12           you'll answer this question "no".    13           Lewis contends  that the  reference to  his having  been    14      hired to do  welding introduced a new issue into  the case on    15      which  there had been no evidence  at trial, and which he had    16      no opportunity to litigate.   This claim is a perfect example    17      of why it is  necessary to explain to the judge  the basis of    18      the  objection.   Whether the  comment was  merely a  slip or    19      reflected the judge's  assessment of the evidence  on record,    20      any error could easily have been cured had a timely objection    21      to the  underlined phrase brought  the matter to  the judge's    22      attention.    23           We will assume  arguendo that the failure to object does                                 ________    24      not preclude an  appeal on the district  court's post-verdict    25      denial  of  the  motion  for  a  new  trial  based  on  newly    26      discovered evidence.  But such a motion requires, among other    27      requisites, that  the evidence  "could not  by due  diligence    28      have  been discovered  earlier by  the movant"  and that  "it    29      would probably change the result  if a new trial is granted."                                         -6-                                         -6-     1      Nickerson v. G.D.  Searle & Co., 900 F.2d  412, 417 (1st Cir.            _________    __________________     2      1990); and we review the denial of a new trial under an abuse     3      of discretion  standard.  Raymond v. Raymond  Corp., 938 F.2d                                      _______    ______________     4      1518, 1522 (1st Cir. 1991).     5           Lewis'  "newly   discovered  evidence"   is  simply   an     6      affidavit   stating  that   welding  is   not   ordinarily  a     7      contractual  duty  of  a  third  assistant  engineer.    This     8      evidence cannot  justify a new  trial because it  should have     9      been  discovered before  or  during  trial.    The  defendant    10      elicited  testimony  to  show  that  the   position  involved    11      welding, that  Lewis was a  certified welder, and  that Lewis    12      represented himself as an accomplished welder when he came on    13      board the ship.   Lewis  thus had clear  notice that his  own    14      employment duties and welding experience were at issue.    15           Further,  even if  the  evidence  could  not  have  been    16      discovered through due diligence, it was unlikely to have led    17      to  a different  result if  introduced at  trial.   The judge    18      instructed  the jury  that the  scope of  Lewis' duties  as a    19      third   assistant  engineer  was  a  factor  to  consider  in    20      determining  whether Ricciuti  negligently supervised  Lewis.    21      The  jury had  before  it  testimony  that the  job  involved    22      welding and  that Lewis was  known to be a  competent welder.    23      Additional  evidence showing that welding was  not one of the    24      central duties of  an engineer would  have been relevant  but    25      not outcome-determinative.                                         -7-                                         -7-     1           3.   Lewis'  other attacks  on the  instructions require     2      only  brief comment.   Lewis  objected below  to the  judge's     3      failure   to  give  two  of  his  requested  instructions  on     4      unseaworthiness.   He  wanted the  judge  to give  additional     5      instructions  explaining that assigning  too few people  to a     6      particular task can create an unseaworthy condition, and also     7      that otherwise seaworthy equipment can be unseaworthy if used     8      improperly.   Cf. Johnson v. Offshore Express, Inc., 845 F.2d                          ___ _______    ______________________     9      1347,  1354  (5th Cir.),  cert. denied,  488 U.S.  968 (1988)                                      _____ ______    10      (manpower); Allen  v. Seacoast  Prods., Inc.,  623 F.2d  355,                        _____     ______________________    11      360-61 (5th Cir. 1980) (equipment).    12           Taking  the instructions  as a  whole,  the trial  judge    13      accurately  stated  the  law  and  adequately  explained  the    14      plaintiff's   theories  of   unseaworthiness.     The   judge    15      repeatedly stated that  lack of adequate personnel  or proper    16      equipment  could  constitute unseaworthiness,  and  explained    17      that  the manpower  and  equipment had  to  be sufficient  to    18      "permit[] [the  jobs ordered]  to be done  with what  we will    19      call  an adequate  setup.  . .  ."   The  jury was  certainly    20      informed that inadequate manpower or equipment could render a    21      vessel  unseaworthy.  See Veranda Beach Club Ltd. Partnership                                  ___ ___________________________________    22      v. Western Sur. Co., 936 F.2d 1364, 1384 (1st Cir. 1991).               ________________    23           Lewis also  contends that the  court erred by  giving an    24      "unavoidable  accident"  instruction, a  type  of instruction    25      that  has  been  criticized  as  confusing,  because  it  may                                         -8-                                         -8-     1      misleadingly suggest  that a  plaintiff must  prove fault  to     2      prevail on  an unseaworthiness claim.   See Lowry v.  A/S D/S                                                    ___ _____     _______     3      Svendborg,  396 F.2d  850, 853  (3d  Cir. 1968).   But  again            _________     4      Lewis' claim of  error arises from a  misunderstanding of the     5      trial judge's instruction.     6           What   the  judge  actually  said  was  that  "the  mere     7      happening  of  an  accident  does   not  in  and  of   itself     8      demonstrate  that there  is  unseaworthiness."   This  merely     9      restates the plaintiff's burden to prove  the existence of an    10      unseaworthy  condition that caused  the accident.   The judge    11      did not suggest that  Lewis had to prove fault to  recover on                                                     _____    12      his  unseaworthiness  claim,  and in  fact  the  judge stated    13      clearly    in   his    instructions   that    liability   for    14      unseaworthiness does not depend on fault.    15           Finally, Lewis objects  to an instruction that  the jury    16      would  have to agree  unanimously "as  to the  condition that    17      constituted  either  negligence  or  unseaworthiness  in  the    18      vessel."   But only  a perfunctory  two-sentence argument  is    19      made  in  Lewis'  appeal  brief  on this  issue,  and  it  is    20      insufficient to preserve the point for review.  United States                                                            _____________    21      v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.               _______                             _____ ______    22      1082 (1990).  It is worth adding that Lewis did not object to    23      the instruction when it was given.    24           Affirmed.                 ________                                         -9-                                         -9-
