[NOT FOR PUBLICATION]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,
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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
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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
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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.
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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."
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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.
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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
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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.
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