UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 95-1391
ERNEST L. SAMUELS and
RULING ANGEL, INC.,
Plaintiffs, Appellants,
v.
HOOD YACHT SYSTEMS CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Lynch, Circuit Judge,
Aldrich and Campbell, Senior Circuit Judges.
Robert J. Murphy with whom Thomas E. Clinton and Clinton & Muzyka
were on brief for appellants.
Thomas M. Elcock with whom Richard W. Jensen and Morrison,
Mahoney & Miller were on brief for appellee.
November 21, 1995
ALDRICH, Senior Circuit Judge. This diversity
action was brought in the United States District Court for
the District of Massachusetts by Ernest L. Samuels of
Ontario, Canada, and Ruling Angel, Inc. of Delaware, owners
of the sailing yacht RULING ANGEL, claiming negligence by
Hood Yacht Systems Corp. (Hood) of Rhode Island, the
manufacturer of her mast. The mast broke while the yacht was
under sail.1 The incident occurred off the coast of St.
Croix, Virgin Islands, with wind at 25-30 knots, and seas 6-8
feet, which the yacht's captain testified was within normal
Caribbean weather. The mast broke in two, which her captain,
testifying to the obvious, said should not have happened.
However, at the close of plaintiffs' case the court granted
Hood's motion for a directed verdict. Plaintiffs appeal. We
reverse.
In addition to conceding normal weather Hood agreed
there was no evidence of mishandling. The captain testified
that the rigging was sound, and had not failed. So did
plaintiffs' expert, Hadley. Although there was a suggestion
that, before designing the mast, Hood had been given an
understatement of the vessel's weight, Hadley, a naval
architect, testified that her "righting moment," the vessel's
1. Strictly, she was under sail and power, in order to head
higher into the wind and clear the land ahead.
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ability to stand up to wind pressure, and a determinant of
the needed strength of her mast, would have been the same.2
The court's decision hung on its resolution of
plaintiffs' expert's testimony. (Emphasis ours, see post.)
THE COURT. The question is, what is your
opinion as to what caused it?
HADLEY. My opinion is there was cracking
in [the mast] that could not be resisted.
The mast itself is a barely adequate
design structurally. There . . . was
movement in the mast . . . fore and aft,
excessive movement fore and aft, that
could have caused these cracks.
. . . .
The mast was a barely adequate
design, and that any kind of crack, which
I believe existed at the time, could
cause that mast to break.
Further examined by plaintiffs' counsel, Mr.
Clinton, the witness complained of imperfect placement of
screw fastenings leading the mast to crack. The court again
inquired:
THE COURT. It's my understanding that
. . . the dismasting . . . occurred
because of two factors: One, the cracks,
as you've displayed to the jury.
A. Yes.
THE COURT. And a marginal[
3]
what?
2. The force of this testimony is borne out by the fact that
when Hood made a replacement mast, and clearly knew the
vessel's weight, it did not make a heavier one.
3. The word "marginal" seems to have been the court's
interpretation of "barely adequate."
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A. Factor of safety . . . the design was
barely adequate . . . it was barely large
enough to perform the task that it was
asked to do.
. . . .
THE COURT. So what you're saying is,
there's two factors, one is the cracks as
described.
A. Yes.
THE COURT. And the other is that the
mast itself was too --
A. Too light.
There followed a recapitulation by the witness in which the
term "barely adequate" again occurred, ending with further
questioning by the court.
THE COURT. . . . What caused the cracks,
did you say?
A. I believe that this excess of
movement which would be existent in too
light a spar could cause these cracks.
. . . .
THE COURT. So ultimately you're saying
that the spar was too light for the ship?
A. Yes.
THE COURT. All right. And if the spar
was too light for the ship, it means that
it's not only not -- that it's not
marginally well constructed, but it's
poorly constructed?
A. It was too marginal for the ship,
considering the service it was to be put
into, yes.
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This last is an interesting statement: for RULING
ANGEL's "service," cruising, there is a different, a greater
margin of safety needed than for racing. This point was not
pursued, but is it not the racers who crack on sail,
regardless? That cruisers need a greater margin is a
recognition that not just wind and weather, but other matters
as well, require a reservoir of protection. Lack of care,
wear and tear with no repair, for example, are ills that
cruisers, not needing to be kept up to scratch, may
particularly suffer from. The fact that it was not wind and
weather, but some other weakness by which RULING ANGEL's
margin of safety was exceeded, should not affect plaintiffs'
case. Nor is it material that the ill was not identified.
This must be omnibus protection, or it would be meaningless.
Following this, Hood moved that Hadley's testimony
be stricken because counsel's answer to an interrogatory as
to what Hadley would testify was given before Hadley had been
consulted, and hence was a fraud on the court. Also Hood
complained because the answer omitted cracks. The court
sustained the latter complaint.
His testimony is stricken just as to
his testimony regarding the crack as
causing, as being one of the causations
of the dismasting . . . the rest of his
testimony may stand for your
consideration.
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Hood did not object; nor has it appealed. It cannot complain
now.4
Thereafter Hadley's final cross-examination by Hood
was as follows:
Q. Just so we're clear, you too are of
the opinion that it was okay to put [this
mast] on, barely okay, but okay?
A. If this were my design and I were
specifying a mast to Hood, I would not
specify [this mast]. It is barely
adequate. I would recommend, for
example, I said the factor of safety was
about one-and-three quarters, I would
recommend a safety of more like two-and-
a-quarter.
Q. No question, people did. But you
agree it's not dangerous, you agreed this
was adequate?
A. Barely, yes.
Q. And you said so in the --
A. Yes.
Q. Nothing else.
MR. CLINTON. No further questions.
When, at the close of plaintiffs' case, Hood moved
for directed verdict the court ruled as follows:
THE COURT. . . . [I]t seems to me that
if . . . the basis ultimately for the
damages was the alleged defective
manufacture and/or design of the mast,
4. There was no fraud on the court, in any event. See,
Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989)
("fraud on the court" consists of "unconscionable scheme" to
interfere with judicial system's ability to adjudicate
properly).
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your witness said that it was marginally
appropriate, or words to that effect.
How does it get to the jury?
MR. CLINTON. Everybody else said he
wouldn't have put it on the vessel[5]
. . . . We also . . . have implied
warranty
. . . .
THE COURT. He said it was marginally
good. I'm going to grant the motion on
that basis.
The Appeal6
Manifestly this ambivalent witness had not been
prepared. Even after the perspicacious court's questioning
had straightened him out (see emphasized testimony, supra),
on final cross he lapsed back. Nor did plaintiffs' counsel
get the message. Small wonder a frustrated court called
Enough. However, should it have?
Hadley's testimony ran two ways. Omitting the
final cross, a careful reading, ante, with particular
attention to the emphasized portions, and special attention
to where the court's question begins, "So ultimately you're
saying . . . ." would warrant a finding that in the witness's
opinion the design was (barely) sufficient in itself, but too
5. Putting it bluntly, nothing that anybody else said
advanced plaintiffs' case.
6. Hood cites no authority supporting its contention that we
should look to Virgin Island law because of the fortuitous
circumstance that the vessel was in that jurisdiction when
the negligent design manifested itself. For such lack we
stay within the forum.
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light -- slight -- in the sense of there was added an
insufficient margin of safety for this ship. Then, in the
last cross, he took it all back.
Plaintiffs, however, were not bound by their
expert's reversal; the jury was free to choose. Lane v.
Epinard, 318 Mass. 664, 63 N.E.2d 463 (1945) is an articulate
example. Plaintiff sued for breach of a contract to hire her
as a housekeeper. Defendant testified that this was to be
only if his present housekeeper decided to leave, and she
decided not to. Plaintiff testified that defendant had
agreed he would discharge her. Plaintiff also testified that
defendant had not agreed to discharge her. In affirming the
trial court's denial of defendant's motion for a directed
verdict the court said,
The plaintiff's testimony is
contradictory in many respects and is
inconsistent in reference to material
aspects of her case. . . . The jury
. . . could accept such portions of her
testimony as they deemed worthy of
credence.
318 Mass. at 666, 63 N.E.2d at 465.
Where a party testifies finally against her own
interest she will normally be bound thereby. See O'Brien v.
Harvard Rest. & Liquor Co., 310 Mass. 491. 493, 38 N.E.2d
658, 659 (1941) (citing cases).7 A party, however, is not
7. We note that the Lane court did not consider the
chronology of the plaintiff's conflicting testimony and may
have been generous in this respect.
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bound by her witness' unfavorable testimony if there is other
evidence. See Lydon v. Boston Elevated Ry., 309 Mass. 205,
206, 34 N.E.2d 642, 644 (1941), and cases cited. It is
rudimentary that a witness may be believed in part and
disbelieved in part. Id. at 206, 211, 34 N.E.2d at 644, 646.
Where Hadley was self-contradictory, the jury could believe
whichever account it chose.
To repeat, in spite of Hadley's final cross-
examination, the jury could have accepted his earlier
testimony that the mast's design was too light in the sense
that it did not provide a sufficient margin of safety for a
cruising yacht. A directed verdict for Hood was
inappropriate.
Reversed.
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