United States Court of Appeals
For the First Circuit
No. 01-1027
TIMOTHY HOPKINS,
Plaintiff, Appellant,
v.
JORDAN MARINE, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch, Circuit Judge,
and DiClerico,* District Judge.
Carolyn M. Latti with whom Latti & Anderson LLP was on brief
for appellant.
William H. Welte with whom Welte & Welte, P.A. was on brief
for appellee.
*Of the District of New Hampshire, sitting by designation.
October 29, 2001
BOUDIN, Chief Judge. In June 1998, Timothy Hopkins was
injured at sea while serving aboard the F/V Jamie & Ashley. The
accident occurred while the ship was letting out a fishing net
from a reel mounted at the aft end of the vessel. The reel was
controlled by another crew member, Ben Farrington, who operated
hydraulic controls on the port side. Hopkins was standing on
the starboard side of the reel as the net unwound into the sea.
During the unwinding, a portion of the net slipped off
the port side of the reel, falling over the edge of the flange
extending upward on either side of the reel. Farrington stopped
the mechanism and climbed up the side of the reel to stow the
loose portion. Hopkins approached the reel from the other side
to assist as Farrington finished and descended. Hopkins stooped
over, either (depending on whose testimony is believed) to free
the net from entanglement with a scallop ring near the base of
the reel or to pick up something from the deck.
While bent over, Hopkins was struck in the back by a
can that was one of many attached to the net as a buoy to keep
it from sinking when in the water. Hopkins alleged that this
occurred because Farrington started up the reel mechanism
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without first making sure that Hopkins was clear of the area
and, more broadly, that the accident occurred because the reel
flanges were not high enough to contain a net of this size.
Farrington denied starting the reel while Hopkins was in the
way.
Having suffered a herniated disk in the accident,
Hopkins sued the ship owner, Jordan Marine, Inc., charging that
the ship was unseaworthy because the net bulged over the edge of
the flanges and for other reasons and that under the Jones Act,
46 U.S.C. § 688 (1994), the ship owner was liable for
Farrington's alleged negligence and for negligence of the
captain in several different respects. Jordan Marine's position
was that the flanges were adequate, that the can had fallen
because a portion of the net had parted from hard use (as nets
sometimes do) and that Hopkins was himself negligent in
straying--without warning Farrington--into a "blind spot" in
which the reel blocked the control operator's view.
The jury returned a verdict against Hopkins, finding
separately that Jordan Marine had not been proved negligent and
the vessel had not been proved unseaworthy. The district court
denied Hopkins' motion for a new trial and he appeals. In this
court he contends that the district court erred in two respects
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in instructing the jury. He also says that Jordan Marine's
expert was not qualified to testify.
Of the three claimed errors, one is of general
interest. In a charge extending over 53 transcript pages, the
district court at one point told the jury: "If you find that
the plaintiff's alleged injuries were the result of his failing
to observe an obvious condition, you will find for the
defendant." This, argues Hopkins, invited the jury to reject
his claims based on the doctrine that a plaintiff may not
recover for risks that he knowingly assumed. Jordan Marine says
that the objection was not adequately preserved but we think
that it may have been and will assume that it was.1
Assumption of the risk is a doctrine associated with
common law tort liability. Like many such phrases, it has been
used in more than one way, Prosser and Keeton on Torts, § 68 at
480-98 (5th ed. 1984); Tiller v. Atlantic Coast Line R. Co., 318
U.S. 54, 68-69 (1943)(Frankfurter, J., concurring); but in one
version, the doctrine was understood to block an employee from
recovering for negligent behavior or conditions for which the
1
Hopkins' counsel did object to the instructions after they
were given on the ground that the Supreme Court had barred
assumption of the risk as a defense, although counsel seemingly
pointed to two other references in the charge. The original
charging conference was not transcribed, but the judge's
response to the post-charge objection indicates that the same
objection had been made and rejected at the charge conference.
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employer was responsible if the risk was apparent to the
employee and the employee continued voluntarily in his
employment, thereby "assuming the risk."
Through stages that need not be described, see Gilmore
& Black, The Law of Admiralty 351-57 (2d. ed. 1975), assumption
of the risk has now been eliminated as a defense to
unseaworthiness claims and to claims for negligence under the
Jones Act. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 429
(1939); The Arizona v. Anelich, 298 U.S. 110, 122 (1936). But
contributory negligence remains as a defense to both sets of
claims; the jury is told that if the plaintiff's own negligence
played a part in causing the injury, then any liability of the
defendant is to be reduced by the percentage or proportion by
which the plaintiff contributed to his own injuries. Wilson v.
Maritime Overseas Corp., 150 F.3d 1, 11 (1st Cir. 1998); 5 Sand,
et al., Modern Federal Jury Instructions, Inst. 90-29 at 90-52
(2001).2
In this case, the instruction quoted above--"failing
to observe an obvious condition"--appears at the end of a
paragraph that occurs after the court had described both the
2
This version of contributory negligence is more accurately
described as comparative negligence, see Prosser & Keeton on
Torts § 67, and the case law and model jury instructions cited
below sometimes refer to it as such.
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unseaworthiness and negligence claims and had turned to
describing the defense of contributory negligence. Wrapping up
the discussion, the court then doubled back to say that the ship
owner's duty was to provide a ship safe for a crew member "who
exercise[s] ordinary care" but not necessarily to provide
"notice of a danger which is obvious through the use of ordinary
senses." There then followed the objected to sentence which
completed the paragraph.
The sentence does not say that assumption of an obvious
risk is a defense to unseaworthiness or negligence on the part
of the shipowner. Rather, it says that a ship is not
unseaworthy or an owner negligent merely because the ship owner
does not anticipate that a crew member will behave negligently.
Possibly the statement goes a shade too far (perhaps in some
repeat situations carelessness should be anticipated); but it is
certainly not an instruction that--on account of the seaman's
carelessness--the owner or ship can escape liability for its own
negligent act or unseaworthy condition.
Indeed, in the next two paragraphs, the district court
went out of its way to refute the inference drawn by Hopkins.
The court said that while the plaintiff must act reasonably to
avoid apparent dangers, a "seaman does not assume the risk
created by the failure of the ship to take [reasonable]
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precautions" and "that a seaman does not assume the risk of
injury or illness from even obvious dangers or conditions if the
cause of the injury is the ship's negligence, the failure to
provide him with a safe place to work, or the failure to provide
a safe and seaworthy vessel."
Past judicial decisions dealing with individual
instructions claimed to violate Socony-Vacuum are not much help
because each package tends to be different. However, we have
upheld instructions much closer to the line than this one, Myers
v. Isthmian Lines, Inc., 282 F.2d 28, 31 (1st Cir. 1960), cert.
denied, 365 U.S. 804 (1961), and Hopkins offers no precedent
that condemns a combination of warning and qualification
anything like the one in this case. That said, there is
certainly an argument for a good set of pattern instructions in
this area.
Hopkins' other claims of error can be dealt with more
swiftly. He objects because at two other points in the
instructions, the district court twice referred to the need to
show that defendant's negligence was "the" proximate cause of
Hopkin's injury. True, it would be enough to show that such
negligence was "a" proximate cause; the wrongful act or
condition need not be sole and exclusive cause. Rogers v.
Missouri Pac. R.R., 352 U.S. 500, 506 (1957). But the district
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court gave an emphatic instruction to this effect at the outset
(emphasis added):
Under the law the defendant's negligence is
a legal cause of an injury or damage if that
negligence played any part, no matter how
small, in bringing about or causing the
injury or damage. Therefore, even if the
defendant's negligence operated in
combination with the act of another or in
combination with some other cause, the
defendant's negligence is a legal cause of
the plaintiffs injury or damage if it played
any part no matter how small in bringing
about or causing the injury or damage.
There were several other briefer statements to the same effect.
Although the slip-of-the-tongue references to "the"
proximate cause are unfortunate, the test of jury instructions
is not abstract perfection. Instead, we consider jury
instructions as a whole to determine whether they correctly
summarize the relevant law. Kelley v. Airborne Freight Corp.,
140 F.3d 335, 349-50 (1st Cir.), cert. denied, 525 U.S. 932
(1998). No harm was done by the two passing uses of the
definite article, juxtaposed with the very clear and explicit
statement just quoted advising the jury that negligence playing
"any part, no matter how small" was enough.
Finally, Hopkins says that Jordan Marine's expert was
not qualified. The expert was a graduate of the Coast Guard
Academy who had served as an inspector of ships for the Coast
Guard followed by years of consulting work in ship inspection
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and investigating maritime accidents. In no way did the
district court abuse its discretion in permitting this expert to
testify. See Diefenbach v. Sheridan Transp., 229 F.3d 27, 30-31
(1st Cir. 2000).
Affirmed.
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