Court of Appeals
For the First
JORDAN MARINE, INC.,
APPEAL FROM THE UNITED STATES
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S.
Boudin, Chief Judge,
Lynch, Circuit 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.
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
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 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
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 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.(2)
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 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).(3)
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 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] 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 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
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"
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 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).
1. Of the District
of New Hampshire, sitting by designation.
2. 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
3. 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.