Transamerica Premier Insurance v. Ober

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.

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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

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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.

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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

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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."

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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

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"'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)

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(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.

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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)

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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.

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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

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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,

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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.

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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

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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).

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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.

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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

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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.

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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.

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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)

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(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. %

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