USCA1 Opinion

[NOT FOR PUBLICATION]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

______________________________

briefs for appellant.

Brian

B.

Kydd

with

whom

Kneeland

& Kydd

was

on

brief

_______________

________________

appellee.

____________________

August 2, 1996
____________________

Per Curiam.
___________

Kenneth Lewis was injured while welding on

the M/V

appeals from the

trial on

Pacific Gulf Marine,

operated the ship.

instructions and complains of the

trial.

NOSAC RANGER, an

automobile-carrying ship.

judgment entered against

his negligence and

him after a

unseaworthiness claims

a Louisiana corporation that

He

He now

jury

against

owned and

raises several objections to the jury

failure to grant him a new

After considering all claims of error, we affirm.

The relevant events

10

is some conflict

11

aboard

12

engineer on

13

welding,

14

assistant engineer

the

in the testimony as to details.

NOSAC

RANGER

July 7,

but had

are straightforward although

1990.

as

He

done little

licensed

third

had extensive

welding on

he was expected

there

Lewis went

assistant

experience in

ships.

As third

to do some welding.

In

15

fact,

he

completed

16

including an overhead weld.

17

supervisor,

First

18

assigned him

the task of welding a bracket to the ceiling of

19

the ship's workshop to steady a drill press.

20

that he requested

21

job, while

Ricciuti testified

22

would have

assigned an

23

Ricciuti did not assign anyone to help Lewis.

24

To weld

25

the ceiling.

several

welding

On

Assistant

tasks

August

Engineer

on

8,

the

1990,

Donald

Lewis testified

the bracket, Lewis

He placed

did not,

assistant if asked.

Lewis'

Ricciuti,

assistance when Ricciuti assigned

Lewis

ship,

him the

but that

In

needed to be able

he

any event,

to reach

a stepladder beside the drill press,

-2-2-

climbed

to the third

ladder and the other on a

on

welding, apparently

machine to deliver too much current or because

of the

proper distance from the metal.

the task for

rung, and stood

metal bench beside it.

nearly three

ship made it

with one foot

hours.

either because

He had

he had

difficult to hold the

He

on the

worked

some trouble

set the

welding

the vibration

welding tool the

While attempting to complete

the weld, he

some three feet below, injuring his back.

10

lost his balance and fell backward

to the deck

In a complaint filed in January 1993, Lewis alleged that

11

his

injuries resulted

from

the defendant's

12

that the

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

17

him.

18

the defendant.

19

for a new trial.

vessel was unseaworthy

with adequate help,

negligence and

in several respects.

and failed adequately

As a

to supervise

After a five-day trial, the jury returned a verdict for

20

1.

21

judge's

On

The trial

appeal,

answer

to

judge denied a timely filed motion

Lewis

concentrates

question

the

on

jury

the

asked

district

during

22

deliberations.

The jury asked: "Would lack of supervision by

23

a superior officer

24

E.G.,

25

argument from the parties and

constitute negligence

not inspecting Mr. Lewis'

by the

progress."

defendant?

The judge heard

then instructed the jury

that

-3-3-

whether

Ricciuti's conduct

was

negligent

depended on

the

relative

judge

respective

responsibilities Lewis assumed as a third assistant engineer,

and considering

Ricciuti

party objected after the instruction was given.

responsibilities of Lewis and his supervisors.

directed

the

duties

jury

of

to

the

whether in

engage

in

parties,"

by

considering

light of those

"weighing

of

what

responsibilities

should have supervised him more carefully.

The general raise-or-waive

The

Neither

rule for objections to

jury

10

instructions

applies to a court's answer to a question asked

11

by the jury during deliberations.

12

Inst. of Technology, 877 F.2d 1106, 1109-10 (1st Cir.), cert.

___________________
_____

13

denied, 493 U.S.

______

965 (1989).

See Smith v. Massachusetts

___ _____
_____________

Because

Lewis' counsel failed

14

to object

after the new

15

the

retired

16

instruction only for plain error.

jury

17

In all

to

instructions were given

deliberate

events, Lewis'

proffered alternative answer

19

is at

20

supervise an

21

constitutes

negligence

22

supervision

was

23

Robinson v.
________

Zapata Corp., 664

____________

24

As

employee in

the conduct

depends

the proffered alternative

review

is

wrong.

to the question, a

misleading:

reasonable

we

in

the

Id.
___

basic position

18

least potentially

further,

and before

whether

of a

on whether

the

His

bare "yes,"

a failure

to

particular task

the

degree

circumstances.

F.2d 45, 48 (5th

of

Cf.
___

Cir. 1981).

instruction was incorrect, the

-4-4-

judge was under no obligation to give it.

Nashua, 76 F.3d 9, 12 (1st Cir. 1996).

______

Lewis is

also mistaken

in asserting

Parker v.
______

City of
_______

that the

judge's

answer constituted an instruction on the "primary duty rule,"

doctrine that

exonerates an

admiralty

defendant if

the

plaintiff's injury arose from the plaintiff's own breach of a

contractual duty

doctrine

supervisory position and that it was

may

the employer.

be applied

judge

only

borrowed

Lewis

when

an

argues that

employee is

the

in

wrongly applied to him.

10

Although

11

involving the primary duty rule, see Bernard v. Maersk Lines,

___ _______
_____________

12

Ltd., 22 F.3d
____

13

"primary duty" instruction here.

14

the

to

903, 907 (9th

language

Cir. 1994), he

from

decision

did not give

___

Rather, the judge said that Ricciuti's duty to supervise

15

Lewis

depended

on

what

Ricciuti

16

expected

Lewis to

17

Ricciuti

could reasonably expect

18

scope of Lewis' duties as third assistant engineer as well as

accomplish without

could

reasonably

have

supervision--and what

naturally depended

on the

19

his

former welding

experience.

20

Lewis

21

Lewis, but rather

22

in these particular circumstances the duty was breached.

23

instruction

24

framework

25

not plain error, if error at all.

suggests, whether

The

Ricciuti had

question was

duty to

not, as

supervise

what the scope of the duty was and whether

explained

the problem

for answering it.

and

offered

The instruction

-5-5-

The

a rational

was certainly

2.

Lewis

also argues that

the judge erred

in making

the following statement (the emphasis is ours) and in denying

Lewis'

contrary evidence:

related later

motion to

grant a

new trial

other hand, you conclude that

to hear

If, on the

or the failure to provide supervision to a person who is

an experienced welder

do welding,
___________

supervision

who

the breach of

who is brought onto the vessel to

_________________________________

conducts

under other

welding

without

circumstances, is

direct

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

14

hired to do

15

which

that the

reference to

his having

welding introduced a new issue into

there had been no evidence

been

the case on

at trial, and which he had

16

no opportunity to litigate.

17

of why it is

18

the

19

reflected the judge's

20

any error could easily have been cured had a timely objection

21

to the

22

attention.

23

This claim is a perfect example

necessary to explain to the judge

objection.

Whether the

comment was

the matter to

not preclude an

appeal on the district

25

denial

motion

26

discovered evidence.

27

requisites, that

28

have

the

for

on record,

the judge's

new

court's post-verdict

trial

based

on

newly

But such a motion requires, among other

the evidence

been discovered

slip or

arguendo that the failure to object does

________

24

of

merely a

assessment of the evidence

underlined phrase brought

We will assume

the basis of

"could not

earlier by

by due

the movant"

diligence

and that

"it

29

would probably change the result

if a new trial is granted."

-6-6-

Nickerson v. G.D. Searle & Co., 900 F.2d

_________
__________________

1990); and we review the denial of a new trial under an abuse

of discretion

1518, 1522 (1st Cir. 1991).

standard.

412, 417 (1st Cir.

Raymond v. Raymond Corp., 938 F.2d

_______
______________

Lewis'

"newly

affidavit

contractual

evidence cannot

been

discovered

stating

duty

that

of

welding

third

justify a new

discovered before

assistant

an

ordinarily

engineer.

trial because it

during

show

not

simply

The

12

represented himself as an accomplished welder when he came on

13

board the ship.

14

employment duties and welding experience were at issue.

even if

certified welder, and

thus had clear

the

position

defendant

welding, that

Lewis

the

should have

11

Lewis was a

that

trial.

This

elicited

Further,

to

or

is

is

10

15

testimony

evidence"

evidence

involved

that Lewis

notice that his

could

not

have

own

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

19

third

20

determining

21

The

22

welding and

23

Additional

24

central duties of

25

not outcome-determinative.

assistant

that the

engineer

was

whether Ricciuti

jury had

before

it

that Lewis was

scope of

Lewis' duties

factor

to

consider

negligently supervised

testimony

that the

known to be a

-7-7-

job

in

Lewis.

involved

competent welder.

evidence showing that welding was

an engineer would

as a

not one of the

have been relevant

but

3.

Lewis'

other attacks

only

failure

unseaworthiness.

instructions

particular task can create an unseaworthy condition, and also

that otherwise seaworthy equipment can be unseaworthy if used

improperly.

1347,

to

1354

give

Lewis

instructions require

10

brief comment.

on the

two

He

of

objected below

his

wanted the

requested

judge

explaining that assigning

to the

judge's

instructions

to give

on

additional

too few people

to a

Cf. Johnson v. Offshore Express, Inc., 845 F.2d

___ _______
______________________

(5th Cir.),

(manpower); Allen
_____

cert. denied,
_____ ______

488 U.S.

v. Seacoast Prods., Inc.,

______________________

968 (1988)

623 F.2d

355,

11

360-61 (5th Cir. 1980) (equipment).

12

Taking

the instructions

the

plaintiff's

15

repeatedly stated that

16

equipment

17

that

18

"permit[] [the

19

call

20

informed that inadequate manpower or equipment could render a

21

vessel

22

v. Western Sur. Co., 936 F.2d 1364, 1384 (1st Cir. 1991).
________________

could

and

setup.

unseaworthy.

The

lack of adequate personnel

equipment had

jobs ordered]

an adequate

explained

unseaworthiness.

constitute unseaworthiness,

the manpower

Lewis also

adequately

judge

14

of

and

the trial

accurately

theories

law

whole,

13

23

stated

as a

. .

to

to be done

."

The

and

the

judge

or proper

explained

be sufficient

with what

jury was

to

we will

certainly

See Veranda Beach Club Ltd. Partnership

___ ___________________________________

contends that the

court erred by

giving an

24

"unavoidable

25

that

has

accident"

been

instruction, a

criticized

as

type

confusing,

of instruction

because

it

may

-8-8-

misleadingly suggest

prevail on

that a

plaintiff must

an unseaworthiness claim.

prove fault

See Lowry v.
___ _____

to

A/S D/S
_______

Svendborg,
_________

396 F.2d

850, 853

Lewis' claim of

trial judge's instruction.

(3d

Cir. 1968).

error arises from a

What

happening

demonstrate

restates the plaintiff's burden to prove

unseaworthy

11

of

judge

an

actually

accident

that there

is

said

does

was

that

in

and

not

unseaworthiness."

"the

mere

of

itself

This

merely

the existence of an

the accident.

The judge

did not suggest that

Lewis had to prove fault to

_____

recover on

12

his

claim,

13

clearly

14

unseaworthiness does not depend on fault.

15

condition that caused

again

misunderstanding of the

10

the

But

unseaworthiness

in

his

and in

instructions

Finally, Lewis objects

fact

that

the

judge stated

liability

to an instruction that

for

the jury

16

would

17

constituted

18

vessel."

19

made

20

insufficient to preserve the point for review.

21

v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 494 U.S.

_______
_____ ______

22

1082 (1990).

23

the instruction when it was given.

24

have to agree

in

either

But only

Lewis'

unanimously "as

negligence

or

a perfunctory

appeal

brief

to the

condition that

unseaworthiness

in

two-sentence argument

on this

issue,

and

it

the

is

is

United States
_____________

It is worth adding that Lewis did not object to

Affirmed.
________

-9-9-