                                   ___________

                                   No. 95-3315
                                   ___________

Gamma 10 Plastics, Inc.,            *
                                    *
           Appellant,               *
                                    *    Appeal from the United States
      v.                            *    District Court for the
                                    *    District of Minnesota.
American President Lines, Ltd.;     *
American President Companies,       *
Ltd.,                               *
                                    *
           Appellees.               *
                               ___________

                   Submitted:      October 25, 1996

                          Filed:   January 22, 1997
                                   ___________

Before WOLLMAN, ROSS, and MURPHY, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


     Gamma 10 Plastics, Inc., (Gamma 10) appeals the district court's1
denial of its motion for a new trial, contending that the district court
rendered erroneous jury instructions.       We affirm.


                                       I.


     In 1988 Gamma 10 entered into a contract with American President
Lines, Ltd., (APL) a large steamship carrier.         APL was to transport four
separate shipments of Gamma 10's plastic resin from the United States to
various ports in China.2    Upon receipt of the


     1
     The Honorable Robert G. Renner, United States District Judge
for the District of Minnesota.
     2
     The first shipment of five containers was shipped to Whampoa,
China; the second shipment of five containers was shipped to
Shanghai, China; the third shipment of six containers was shipped
to Hong Kong; and the fourth shipment of four containers was held
in Los Angeles.
resin from Gamma 10, APL was to issue "through" bills of lading, meaning
that APL would be responsible for the goods until they were received by the
consignees in China.


     Prior to shipping, the plastic resin was packed in bags, placed on
wooden pallets, and covered with shrink-wrap plastic.               The wrapped resin
was then placed in sealed containers for shipment.              The contract provided
that these containers were to remain sealed until receipt by the consignee.



     The consignees for the first two shipments notified Gamma 10 that
they were having trouble locating the goods at the designated ports in
China.    Because of the problems in locating the first two shipments, Gamma
10 instructed APL to hold the third and fourth shipments in the United
States.   The third shipment, however, was mistakenly sent to China.                 When
the first two shipments were located, the goods had been "devanned" --
removed    from    their   containers   --   and   as   a    result,   the   resin   was
contaminated.      Gamma 10 claimed that due to APL's alleged devanning of the
first two shipments and its failure to make timely delivery of the goods,
Gamma 10 lost buyers for the resin, but was eventually able to resell all
four shipments at a lower price.


     In July of 1990, Gamma 10 filed suit in Minnesota state court.                    It
alleged negligent or intentional misrepresentation and that APL was
negligent in shipping, handling, storing, tracking, and protecting Gamma
10's goods, which Gamma 10 claimed was also in breach of their contract.
APL removed the case to federal district court.             The district court granted
partial summary judgment to Gamma 10 on APL's affirmative defense of
limitations.      After a five-week trial, the jury returned a verdict in favor
of Gamma 10 for $500,000.       Gamma 10 Plastics, Inc. v. American President
Lines,




                                        -2-
Ltd., 839 F. Supp. 1359 (D. Minn. 1993).


     Gamma 10 appealed the trial court's refusal to allow it to amend its
pleadings to claim punitive damages and refusal to instruct on punitive
damages.     APL cross-appealed the district court's partial summary judgment
in favor of Gamma 10.    We affirmed the district court's ruling that claims
on the second, third, and fourth shipments were not time barred.    Gamma 10
Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244 (8th Cir.),
cert. denied, 115 S. Ct. 1270 (1995).    However, we reversed as to the first
shipment to Whampoa, China, finding that the dispute arising over that
shipment was time-barred.3    We also reversed the district court's holding
that Gamma 10 could not amend its pleadings to include a claim for punitive
damages and remanded for a new trial.


     A second trial commenced on April 10, 1995.        The jury returned a
special verdict on June 7, 1995, in which it found for APL.    Gamma 10 moved
for a new trial, alleging that the verdict was against the weight of the
evidence and that there were erroneous evidentiary rulings and erroneous
jury instructions.


                                      II.


     Gamma 10 appeals the denial of its motion for a new trial only on the
ground that the district court's jury instructions regarding "proper
delivery" were erroneous.4     Gamma 10 advanced three theories of how the
containers were devanned.    One theory was that the Chinese port authority
devanned the containers; a second theory was that APL devanned the
containers once the shipment reached




         3
       Because we held in the first appeal that the claim on the
first shipment to Whampoa was time-barred, that shipment was not at
issue in the second trial, nor is it in this appeal.
     4
     APL contends that Gamma 10 waived this argument, and that in
any event it is precluded by the "law of the case" doctrine. In
light of our disposition, we need not address these arguments.

                                      -3-
Shanghai; a third theory was that APL devanned the cargo prior to its
arrival in Shanghai.   Gamma 10 argues that the instructions precluded the
jury from finding APL liable on this third alternative.


     Gamma 10 contends that in order for the jury to be able to find
liability based on the third theory, the word "containerized" (as indicated
in brackets) should have been included in Instruction No. 21:


     The bills of lading in this case were through bills requiring
     delivery to a party in possession of an original bill of
     lading, the consignee. Therefore, in this case the duty of
     proper delivery required American President Lines either to
     deliver the [containerized] cargo to the consignee or to
     deliver it to a fit wharf and to take reasonable steps to
     safeguard it until the shipper or the consignee had a
     reasonable opportunity to claim the cargo. But if you find
     that APL proved by the greater weight of the evidence that (1)
     the Chinese port practices, customs, regulations, or laws
     required American President Lines to relinquish the cargo to a
     port authority; (2) APL in fact delivered Gamma 10's
     [containerized] goods into the custody of the port authority;
     (3) APL acted at all times in compliance with the port law and
     port regulations of the foreign port; and (4) the loss or
     damage was accomplished while the goods were in the custody of
     foreign port authority officials, then American President Lines
     is not liable for any damage or loss that occurred after the
     port authority took possession.


     Gamma 10 makes the same argument with regard to Instruction No. 21a:


     I instruct you that proper delivery was also made if you find
     that (1) Sinotrans and PENAVICO are government-controlled
     agencies acting in an official capacity and outside of the
     agency or control of APL; (2) APL was required by law or port
     practices to relinquish the cargo to either agency; (3) APL
     delivered the [containerized] cargo into the custody and
     control of either agency; (4) APL and its agents acted at all
     times in compliance with port law and port regulations of the
     foreign port; and




                                    -4-
       (5) the loss or damage was accomplished while the goods were in the
       custody of either Sinotrans or PENAVICO.


       Gamma 10 argues that to absolve APL from liability, the jury had to
find not only that the goods reached the Chinese ports, but also that they
were in their containers when delivered.           Gamma 10 contends that the
instruction as given, without the word "containerized" did not permit the
jury to find APL liable as long as the goods were ultimately delivered, in
whatever state.


                                       III.


       In determining whether a jury instruction is proper, we keep in mind
that   the   district   court   has   "`wide   discretion'"   in   drafting   jury
instructions.    Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 977
(8th Cir. 1995) (quoting Davis v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 906 F.2d 1206, 1212 (8th Cir. 1990)) (citation omitted).           We must
read the jury instructions as a whole and look at the instruction at issue
in light of the entire charge.          National Automotive Trading Corp. v.
Pioneer Trading Co., 46 F.3d 842, 844 (8th Cir. 1995) (per curiam).            Our
review of jury instructions is confined to whether the instructions "fairly
and adequately present the issues in the case to the jury."        Hose, 70 F.3d
at 977.   As long as "`the instructions, considered as a whole, adequately
and sufficiently state the generally applicable law, the fact that the
instructions are technically imperfect or are not a model of clarity does
not render the charge erroneous.'"        National Automotive, 46 F.3d at 844
(quoting Tribble v. Westinghouse Elec. Corp., 669 F.2d 1193, 1197 (8th
Cir.), cert. denied, 460 U.S. 1080 (1983)).


       We conclude that when read in their entirety, the instructions were
not erroneous.    They did not preclude the jury from finding APL liable on
Gamma 10's theory that APL devanned the goods before their arrival in
Shanghai, but rather required the jury to consider




                                       -5-
that possibility.


     Instruction No. 21 required the jury to find all four of the elements
of proper delivery in order to absolve APL from liability.               The proper
delivery instruction is written in the conjunctive, plainly stating that
only if the jury found all four elements, could it find for APL.                  The
fourth element in the proper delivery instruction required the jury to find
that "the loss or damage was accomplished while the goods were in the
custody of foreign port authority officials."            Thus, this part of the
instruction required that the jury make a determination of when and in
whose hands the devanning occurred.


     Likewise, Instruction No. 21a required the jury to find that all five
listed circumstances set forth therein existed before absolving APL of
liability,   which   included   a   finding    that   "the   loss   or   damage   was
accomplished while the goods were in the custody of either Sinotrans or
PENAVICO."   Thus, this instruction also required the jury to consider the
circumstances surrounding the devanning of the cargo.


     In addition, the jury was aware of Gamma 10's allegations:              first,
that APL devanned the containers prior to delivery to the Chinese port;
second, that the devanning of the containers caused the resin to become
contaminated; and third, that it was the contamination which ultimately
resulted in Gamma 10's loss or damage.        Therefore, if the jury had believed
Gamma 10's allegation that APL devanned the goods prior to arrival at the
port, the jury would also have had to conclude that such devanning and the
consequent loss or damage occurred when the goods were in the hands of APL.
Thus, by making the finding that the loss or damage occurred in the hands
of another party and ultimately concluding that APL was not liable, the
jury necessarily considered that which Gamma 10 now contends the jury was
not given the opportunity to consider -- whether APL devanned the goods
prior to their arrival




                                       -6-
at the Chinese port.


        The proper delivery instruction, above, also plainly stated that the
duty of proper delivery also required APL to "take reasonable steps to
safeguard [the cargo] until the shipper or the consignee had a reasonable
opportunity to claim the cargo."   The court later instructed the jury that
one of Gamma 10's theories of negligence was that APL had failed to
safeguard by emptying the cargo.       Thus, the jury was made aware that
devanning the cargo would constitute a failure to safeguard the cargo.
Such a failure would constitute improper delivery, which in turn would
require the jury to find APL liable on Gamma 10's claim that APL devanned
the containers prior to delivery.


        Gamma 10 also contends that the trial court merely listed Gamma 10's
allegations of negligence without instructing the jury as to how the
allegations would lead to a finding of liability.     Gamma 10's contention
that the court provided no link to liability is unfounded.        The court
supplemented these allegations by instructing the jury that Gamma 10 would
prove the essential elements of its claim if it showed that APL was
"negligent in one or more of the particulars alleged in instruction 22,"
and that negligence was the "proximate cause of the injury and consequent
damage sustained by Gamma 10."   Moreover, the jury was asked on the special
verdict form whether it found "that the defendants or their agents acted
negligently in performing any one or more of the specific acts of
negligence alleged by Gamma 10."      Instruction No. 22 informed the jury
that:


        . . . .


        2. American President lines or its agents failed to take reasonable
        steps to safeguard Gamma 10's cargo between September and December
        of 1988 by emptying the cargo from the sealed containers;




                                     -7-
     . . . .

     4. American President Lines or its agents violated port law, port
     practices, and port regulations in China by devanning, or emptying,
     Gamma 10's goods prior to the arrival of a consignee[.]


Taken as a whole, these instructions clearly provided an avenue for the
jury to find negligence based on Gamma 10's allegation that APL devanned
the goods prior to their arrival in Shanghai.


     Similarly, with regard to the breach of contract claim, the jury was
informed of Gamma 10's allegations that APL had breached the contract by
failing to properly deliver and safeguard, by devanning the containers
prior to the consignees' taking possession, and by breaking the seals on
the containers.   Thus, the jury was fully apprised of Gamma 10's theory
regarding breach of contract and was bound to find APL in breach of its
contract if it concluded that Gamma 10's allegations were true.


     The judgment is affirmed.


     A true copy.


           Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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