           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 10, 2009

                                     No. 09-40561                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JAMES ERVIN; DONALD ERVIN,

                                                   Plaintiffs–Appellants,
v.

MASTERS RESOURCES LLC,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:07-CV-233


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       James and Donald Ervin appeal a jury verdict in favor of Masters
Resources, LLC (Masters) on their claim under general maritime law. We
affirm.
                                              I
       This case arises out of a boating accident in Galveston Bay. In July 2006,
James and Donald Ervin set out on Donald’s boat for a day of fishing. After


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                        No. 09-40561

fishing at Bart’s Pass, the Ervins navigated towards Earnest Reef at about
twenty miles per hour.            As they approached, their vessel allided with a
submerged object, which the Ervins claim was a pipe with a four- to six-inch
diameter. Donald was thrown overboard, and James was thrown against the
vessel’s bow. Both lost consciousness briefly and were treated at the emergency
room for their injuries.
       The Ervins sued Masters and alleged that it owned or controlled the
pipeline struck by their vessel. A jury, however, rendered a verdict for Masters,
finding that it did not own, control, maintain, or put in place the pipe the Ervins
struck. The district court entered judgment on the verdict and denied the
Ervins’ motion for a new trial. This appeal followed.
                                               II
       The Ervins argue that the jury verdict was against the great weight of the
evidence. But federal courts “do not directly review jury verdicts.” 1 Since the
Ervins did not move for judgment as a matter of law on the sufficiency of the
evidence, they did not properly preserve that argument in the district court.2
Issues raised for the first time on appeal are reviewed only for plain error.3 On
plain error review, the question “is not whether there was substantial evidence
to support the jury verdict, but whether there was any evidence to support the
jury verdict.” 4




       1
           Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir. 1978).
       2
        Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir. 2001); Coughlin,
571 F.2d at 297.
       3
           Flowers, 247 F.3d at 238.
       4
           Id.

                                               2
                                         No. 09-40561

       Although the Ervins raised the issue in a motion for a new trial, such a
motion “will not reopen the question foreclosed by plaintiffs’ failure to move for
a directed verdict.” 5 A denial of a motion for new trial is reviewed for abuse of
discretion.6 As such, we do not review the “sufficiency” of the evidence, but
rather “whether there was an absolute absence of evidence to support the jury’s
verdict.” 7
       Because the alleged tort occurred in navigable waters, the case is governed
by admiralty law.8 To establish liability, the Ervins had to show that Masters
“owned, maintained, placed, or controlled” the submerged obstruction that
damaged their vessel.9            The Ervins argue that the evidence conclusively
established that Masters owned, maintained, placed, or controlled the object at
issue and that no reasonable juror could have found otherwise. Specifically, the
Ervins point to the testimony as to where the accident occurred and the
testimony of Masters’s corporate representative, John Barton, which they allege
establishes that Masters controlled and maintained all pipelines in the vicinity
of the accident.
       We conclude that there is some evidence to support the jury verdict. The
only evidence that the Ervins struck a pipe was their testimony that
immediately after the accident, which knocked them both unconscious, they saw
a four- to six-inch rusty pipe just below the surface of the water. But when they
returned to the alleged location of the allision, they could not locate the pipe and
therefore could offer no direct proof that Masters owned the object that was


       5
           Coughlin, 571 F.2d at 297.
       6
           Id. at 298.
       7
           Id. (internal quotation marks omitted).
       8
           Creppel v. Shell Oil Co., 738 F.2d 699, 701 (5th Cir. 1984).
       9
           See id. at 702.

                                                3
                                     No. 09-40561

struck. Although the Ervins offered circumstantial evidence suggesting that
Masters owned most of the pipes in the area, this evidence was countered by
testimony from Masters’s witnesses that two other companies had pipes in or
near the accident location. Moreover, the Ervins insisted that the pipe allegedly
struck had a diameter of four to six inches, and Masters’s corporate
representative testified that it did not own any pipelines that size in the area of
the accident.   Accordingly, we cannot conclude that there is an “absolute
absence” of evidence supporting the jury verdict. Given the highly deferential
standard of review, we must affirm the judgment.
                                 *        *         *
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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