dissenting in part and concurring in part:
Under this court’s civil plain error standard the party asserting error for the first time on appeal faces several formidable hurdles. He must demonstrate that the trial court committed error that was plain, harmful, i.e. violative of his substantial rights, and that the error affected the fairness, integrity or public reputation of judicial proceedings. Thus, only the exceptional case requires this court to reverse a trial court judgment on the grounds of plain error.
I disagree with the majority that the “Gautreaux ” error in this case seriously affected the fairness, integrity, or public reputation of judicial proceedings. Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997)(ere banc) represents a “degree change” not a “sea change” in the standard of care required of a seaman under the Jones Act. As this court has recognized in the past, the trial court’s failure to apply or instruct on the precise degree of care, although error, is not usually a matter of sufficient magnitude as to cause this court to find that the fairness, integrity or public reputation of judicial proceedings has been significantly jeopardized or affected.
I agree with the majority that the district court did not clearly err in quantifying the award of damages. Accordingly, I would affirm the district court judgment in full, rather than in part.
I. Major Recent Developments in Criminal Plain Error Review
Recently, this circuit began the practice of using the more formulaic criminal plain error standard of review developed by the Supreme Court and enunciated in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) in civil matters. E.g. Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1032 (5th Cir.1994). Therefore, it is appropriate to begin any analysis of this court’s civil plain error standard of review with a look at the current state of plain .error review in the criminal context.
Rule 52(b) of the Federal Rules of Criminal Procedure provides that plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the district court. Fed. R.Crim.P. 52(b). This is simply a restatement of prior law. Justice Stone set forth the familiar principle when he stated, “[i]n exceptional circumstances, especially in criminal eases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936).
In order to clarify the proper standard for plain error review in criminal cases, the Supreme Court in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) set forth a major explication of the plain-error concept restated by Federal Rule of Criminal Procedure 52(b). Basically, the Court analyzed three limitations on appellate authority along with a guide for the use of discretion which is granted under the rule. 3A Charles A. Wright, Federal Praotioe and Procedure § 856 (2d ed. Supp.1997).
The first limitation is that there must be an “error.” Deviation from a legal rule constitutes error unless the , rule has been waived. In Olano, the Court carefully distinguished waiver from forfeiture. If a right has been waived by its knowing and intentional relinquishment or abandonment, failure to give that right at trial is not error at all. But if the right or legal rule violated, though forfeited by failure to make a timely assertion of it, has not been waived, “then there has been an ‘error’ within the meaning of Rule 52(b) despite the absence of a timely objection.” 507 U.S. at 734, 113 S.Ct. at 1777-78.
The second limitation is simply that the error complained of on appeal must be “plain.” “Plain” is “synonymous with *1131‘clear’” or, equivalent with “obvious.” 507 U.S. at 734, 113 S.Ct. at 1777-78.
The third limitation is that the plain, i.e. obvious, error must have affected substantial rights. In most cases this means that the error must have been prejudicial, viz., it must have affected the outcome of the district court proceedings. This is the same language that is used in defining “harmless error” in Rule 52(a), and the same kind of inquiry is called for under Rule 52(b), but “with one important difference: It is the defendant [as appellant] rather than the Government [as appellee] who bears the burden of persuasion with respect to prejudice.” 507 U.S. at 734, 113 S.Ct. at 1777-78. This burden-shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: “[w]hile Rule 52(a) precludes error correction only if the error ‘does not affect substantial rights,’ Rule 52(b) authorizes no remedy unless the error does ‘affect substantial rights.’ ” Id. at 735, 113 S.Ct. at 1778.
The fourth factor is set forth in Olano not as a limitation on appellate authority but as a guide to the use of discretion. “Rule 52(b) is permissive, not mandatory. If the forfeited error is ‘plain’ and ‘affect[s] substantial rights,’ the Court of Appeals has authority to order correction, but is not required to do so.” 507 U.S. at 735, 113 S.Ct. at 1778. The proper test, the Olano Court said, is the principle announced in United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936). “The Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ ” 507 U.S. at 736, 113 S.Ct. at 1778-79(quoting from Atkinson, 297 U.S. at 160, 56 S.Ct. at 392).
In Olano, the government conceded that the trial court’s deviation from Criminal Rule 24(c), by allowing alternate jurors to sit in on the jury’s deliberations without participating, was an “error” that was “plain.” But the Supreme Court concluded that because the defendants made no specific showing that any prejudice occurred, and because prejudice cannot be presumed, the error was not a prejudicial one that affected substantial rights.
Recently, in Johnson v. United States, — U.S. —, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the Supreme Court restated the Ola-no test as follows:
Under that test, before an appellate court can correct an error not raised at trial, there must be (1) “error,” (2) that is “plain,” and (3) that “affect[s] substantial rights.” If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the “error ‘ “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” ’ ” — U.S. at -, 117 S.Ct. at 1548-1549 (quoting Olano, 507 U.S. at 732, 113 S.Ct. at 1776-77)(internal citations omitted)
Significantly, Johnson further restricts an appellate court’s authority, i.e. discretion, to correct a plain error. Even after the appellant shows (1) error (2) that is plain (3) that affects substantial rights, before the appellate court may exercise its discretion to correct the error, it must find (4) that the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
Johnson also makes clear that the seriousness of the error claimed does not remove its consideration from the ambit of Rule 52(b) or the Federal Rules of Criminal Procedure in general. Specifically, the post-judgment change in the law brought about by United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), and at issue in Johnson, did not affect the applicability of the Federal Rules of Criminal Procedure which require a contemporaneous objection to jury instructions in order to preserve review. Fed.R.Crim.P. 30. In declining to create an exception for changes in the law while an appeal is pending, and in fact finding that it had no authority to create such an exception, the Court held that plain error would be applied under these circumstances pursuant to the Federal Rules of Criminal Procedure. Johnson, — U.S. at -, 117 S.Ct. at 1548. The Court did, however, allow for appellate hindsight to be used in such instances, thus, allowing a reviewing court to *1132find that an unpreserved error brought to light by a change in the law subsequent to the trial may be considered clear and obvious for purposes of plain error review.
Eventually, in applying the final two prongs of Olano, the Johnson court preter-mitted consideration of the “substantial rights” prong, and, after considering the weight of the evidence presented, found that the trial court’s error in not submitting materiality to the jury as an essential element of the crime did not “seriously affect the fairness, integrity, or public reputation of the judicial proceeding.” Id. at -, 117 S.Ct. at 1550.
II. This Circuit’s Development of Plain Error Review in Civil Cases
Plain error review in civil cases is a creature of purely jurisprudential origins. Rule 52(b) of the Federal Rules of Criminal Procedure, which specifically allows for a limited review of unpreserved objections on appeal in criminal cases, has no specific counter part in the Federal Rules of Civil Procedure. In fact, no where in the rules of civil procedure is an appellate court granted the authority to review errors not raised in the lower court. However, this court has long recognized a jurisprudential rule allowing an appellate court in civil cases to consider on appeal an issue not raised in the lower court if such a failure would result in a “miscarriage of justice.” E.g. Brooks v. Great Lakes Dredge-Dock Co., 754 F.2d 536, 538 (5th Cir.1984), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997)(era banc).
In this circuit, the genesis of plain error review in civil cases can be traced back to Dowell, Inc. v. Jowers, 166 F.2d 214, 221 (5th Cir.1948). In Dowell, the court recognized the limitations on appellate review placed by Fed.R.Civ.P. 51 concerning unpreserved objections on appeal, but found that in the exceptional case where an “injustice might otherwise result” the appellate court could, upon its own motion, review an alleged error which was not raised in the lower court when such an error was “patent upon the face of the record.” Id. (quoting, Shimabukuro v. Nagayama, 140 F.2d 13, 15 (D.C.Cir.1944) (quoting, Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721-22, 85 L.Ed. 1037 (1941))). This type of extra-procedural review began to take on the nomenclature of “plain” error review in Mondshine v. Short, 196 F.2d 606, 608 (5th Cir.1952) when the court refused to consider an error not clearly objected to at trial because it was not “one of those exceptional cases where the error is so basic, plain and clear as to prompt this court to consider the question to avoid the injustice which might otherwise result.” (emphasis added) This type of review ultimately was dubbed the “plain error rule” in Wirtz v. International Harvester Co., 381 F.2d 462, 465-66 (5th Cir.1964). The Wirtz court utilized the test put forth in Mondshine and looked to see if the alleged error was basic, plain, and clear such that the court should consider it so as to avoid an injustice. Id. at 465; See also DeJoris v. United States, 409 F.2d 2, 3 (5th Cir.1969)(finding that an unob-jected to error was not plain, fundamental and prejudicial such that it should be noted by the court). By the 1980’s, this court consistently represented this type of review as “plain error” review and defined plain error as one which results in an incorrect verdict that creates a substantial injustice. Colomb v. Texaco, Inc., 736 F.2d 218, 221 (5th Cir.1984), overruled in part, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997)(en banc); See also Brooks, 754 F.2d at 538.
By the time Brooks and Colomb were decided, civil “plain error” review had developed to such a point as to essentially encompass the considerations included in the third and fourth prongs of the Olano Criminal Rule 52(b) plain error review test. Specifically, it consisted of a requirement that the unobjeeted to error affected substantial rights, i.e. made a difference in the outcome of the trial, along with a further determination that a “miscarriage of justice” would occur if the error were not corrected. See Brooks, 754 F.2d at 538. The similarities between the concept of civil plain error review as defined in the Colomb and Brooks civil cases and the Criminal Rule 52(b) standard enunciated in Olano has led to the adoption by this court of the criminal plain *1133error standard for use in civil cases. Highlands Ins. Co. v. National Union Fire Ins. Co., 27 F.3d 1027, 1031-32 (5th Cir.1994)(“Federal Rule of Civil Procedure 51 is even more restrictive than Criminal Rule 52(b); indeed, one circuit holds that it allows no new attacks, on instructions on appeal.”); See also Robertson v. Plano City of Texas, 70 F.3d 21, 22 (5th Cir.1995); Craddock Int’l Inc. v. W.K.P. Wilson & Son, Inc., 116 F.3d 1095, 1105 (5th Cir.1997). To this end, the majority in this case has stated the Olano test and seeks to apply it to the facts presented.
In some respects, the use of the Olano test in civil cases would appear to have effected little change in this court’s settled jurisprudence other than to provide a more formulaic approach to civil plain error review. However, civil plain error review must be viewed in the context of its development in this circuit. Plain error review in civil cases has always been considered to be an extraordinary remedy for use only in the exceptional case. Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 262 n. 9 (5th Cir.1985); 9A Charles A. Wright & Arthur R. Miller, Federal PRACTICE AND PROCEDURE § 2558 at 469 (2d ed. 1995)(“If there is to be a plain error exception to [Civil] Rule 51 at all, it should be confined to the exceptional case when the error seriously has affected the fairness, integrity, or public reputation of the trial court’s proceedings.”); See also Toscano v. Chandris, 934 F.2d 383, 385 (1st Cir.1991)(“The plain error standard, high in any event, ... is near its zenith in the Rule 51 milieu.”) Therefore, in applying the plain error standard articulated in Olano in a civil case such as the one before us, we must keep in mind “this court’s longstanding rule that reversal for plain error is ‘not a run-of-the-mill remedy’ and will occur ‘only in exceptional circumstances to avoid a miscarriage of justice.’ ” Highlands, 27 F.3d at 1032 (quoting, Peveto v. Sears, Roebuck & Co., 807 F.2d 486, 489 (5th Cir.1987)); See also 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 4.03 at p. 4-39 (2d ed.1992).
III. Plain Error Review of the Instant Matter
In the instant action, the plaintiff-appellee, Greg Crawford, was injured while working aboard a vessel, the PHOENIX V, owned by his employer, Falcon Drilling, the defendant-appellant herein. Crawford’s injury occurred while his drill crew was engaged in a practice called “tripping pipe out of the hole,” i.e. they were removing pipe from a well base and then racking the pipe in a pipe rack. This is a rather involved process which is fully explained in the district court and majority opinions. In summary, during this operation, one of the drill pipes was improperly positioned on the pipe rack floor which cause the top of the pipe to unexpectedly swing to the right, all of the previous pipes had swung to the left, which in turn caused the pipe to fall in an again unexpected direction causing the plaintiff to be “suddenly jerked over.”
Subsequent to his injury, the plaintiff sued the defendant under the Jones Act and the general maritime law of unseaworthiness. The district court found, after the matter was tried to the court, that the plaintiffs injuries were caused by an accident aboard the PHOENIX V while Crawford was working in the course and scope of his employment as a derrickman. Furthermore, the trial court found that the defendant had been negligent and that such negligence was a cause-in-fact of the plaintiffs injuries. Additionally, the district court found that the plaintiff had not been contributorily negligent. Accordingly, the defendant was held liable for the entirety of Crawford’s damages, which were determined to be $563,190.91. The vessel was not found to be unseaworthy.
In making his conclusions of law with regard to the proper apportionment of fault, the trial judge referred to the “slight duty” standard in finding that the plaintiff had not been contributorily negligent. In his findings of fact, the trial court stated that “it was not unreasonable for Greg Crawford to expect the drill pipe he was attempting to handle would fall to the left as the previous stands of pipe had rather than to the right as it did. Greg Crawford did not contribute to his own injury....” In addition, the trial *1134court found that the driller was responsible for the pipe being racked correctly and “to make the work of the derrickman safer.” Moreover, “[t]he action or inaction of the driller and of the floor hands in failing to properly place and set the bottom of the drill pipe on the pipe rack floor was the proximate cause of the accident that injured” the plaintiff.
The defendant did not challenge the trial judge’s reference to the “slight duty” standard for contributory negligence or to the standard of care which the trial court held the defendant in any post-trial motion but raised the issue of the correct standard of care to which a seaman should be held for contributory negligence for the first time in a reply brief on appeal. The defendant did not question the standard of care to which it was held in its reply brief.
As noted by the majority, it is not surprising that the defendant did not object to either aspect of the district court opinion because at that time neither the trial court nor the parties had the benefit of this court’s opinion in Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir.1997)(ew banc). The effect of Gautreaux on our maritime jurisprudence is ably stated by the majority and will not be reiterated herein. In short, Gautreaux raised in degree the standard by which a seaman’s contributory negligence is measured from “slight duty of care” to “ordinary prudence under the circumstances.” Id. at 339. Accordingly, the use of the “slight duty” standard by the trial court was (1) error (2) that was plain in light of Gau-treaux. Appellate hindsight is appropriate in determining whether the district court’s error was clear and obvious on appeal. See Johnson v. United States, supra.
Before reversing a district court on the basis of plain error, however, we are required to apply the final two requirements of civil plain error review to determine whether we have appellate authority to correct the error and whether we may exercise our discretion to do so. We must determine whether (3) the trial court’s failure to apply the ordinary prudence standard affected the defendant’s substantial rights. The burden of proving that its substantial rights were affected lies with the party claiming that plain error occurred, the defendant Falcon. Olano, 507 U.S. at 734-35, 113 S.Ct. at 1777-78. In addition, “but only if’ the ruling affected the defendant’s substantial rights, the court may consider exercising its discretion if, (4) not correcting the error would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” See Johnson, — U.S. at -, 117 S.Ct. at 1549.
Assuming, arguendo, that the district court’s deviation in referring to the “sight duty” standard affected the defendant’s substantial rights, Falcon did not demonstrate that the error seriously affected the fairness, integrity or public reputation of the judicial proceedings. Although the shoe was on the other foot, the situation in Colomb v. Texaco, Inc., supra, was remarkably similar to that in the present case. In Colomb, the trial court gave a single “reasonable care under the circumstances” contributory negligence instruction applicable to longshoreman and failed to give a separate “slight duty” instruction which, at that time, applied to a seaman. Colomb, 736 F.2d at 221. In returning its verdict, the jury found that the percentage of the plaintiffs contributory negligence was 90%.
The plaintiff did not object to the instruction at trial but raised the issue for the first time on appeal. Id. Judge Davis, in speaking for the court, affirmed the verdict, found the trial judge’s omission to be error, but not plain error. Id. at 222. Judge Davis’ reasoning, equally applicable here, was that:
“The difference in the standard given in the charge and that applicable under the Jones Act is one of degree and not so prejudicial as to be manifestly unjust. This is not a case where an error was so plain and fundamental as to withhold from the jury the essential ingredients of a cause of action or defense.” Id.
By the same token, in the instant matter, the trial judge’s error in referring to slight duty rather than reasonable care was “one of degree and not so prejudicial as to be manifestly unjust.” Accordingly, like Colomb, this is not a case “where [the] error was so plain and fundamental as to withhold from the jury the essential ingredients of a cause *1135of action or defense.” The difference in degree involved in the trial judge’s reference to slight duty and Gautreaux’s “ordinary prudence” standard is the same as it was in Colomb and, similarly, the difference did not create a situation which seriously affects the fairness, integrity, or public reputation of judicial proceedings.
The defendant in the present case was able to present its defense fully, introducing evidence which it felt showed contributory negligence. The district court found that the defendant’s negligence was the cause of the plaintiffs injury and that the plaintiff “did not contribute” to the accident. The evidence is not so overwhelming or clear-cut as to show that a failure to overturn the verdict seriously affects the fairness, integrity, or public reputation of judicial proceedings. Cf. Johnson, — U.S. at -, 117 S.Ct. at 1550 (involving Gaudin error).
Accordingly, I respectfully dissent from the majority’s reversal of the district court’s judgment and would affirm the judgment of the district court fully because the defendant-appellant failed to show that the district court’s error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.