USCA1 Opinion

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 & Muz
________________
_________________
______________
were on brief for appellants.

Thomas M. Elcock
__________________

with whom

Richard W. Jensen
___________________

and

Morris
______

Mahoney & Miller were on brief for appellee.

________________

____________________

November 21, 1995

____________________

ALDRICH,

Senior Circuit Judge.

_____________________

This

diversity

action

the

was brought in

District

of

Massachusetts

Ontario, Canada,

of

the sailing

Hood

Yacht

the United States

yacht RULING

Systems

sail.1

Ernest

and Ruling Angel, Inc.

Corp.

manufacturer of her mast.

under

by

District Court for

L.

of

of

of Delaware, owners

ANGEL, claiming

(Hood)

Samuels

Rhode

negligence by

Island,

the

The mast broke while the yacht was

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

obvious, said

However, at

to the

should not

the close of plaintiffs' case

Hood's motion for a directed verdict.

have happened.

the court granted

Plaintiffs appeal.

We

reverse.

In addition to conceding normal weather Hood agreed

there was no evidence of mishandling.

that

the rigging

was sound,

plaintiffs' expert, Hadley.

that, before

understatement

designing

of

the

and

The captain testified

had not

failed.

So did

Although there was a suggestion

the mast,

Hood

vessel's

weight,

had been

Hadley,

given

an

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.

-2-

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

plaintiffs' expert's testimony.

THE COURT.

hung

on its

resolution

(Emphasis ours, see post.)

____

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

of

_________________________________________
design structurally.
____________________
movement in
excessive

There . . .

was

the mast . . . fore and aft,

movement

fore

and aft,

that

could have caused these cracks.

. . . .

The

mast

was

barely

adequate

design, and that any kind of crack, which

I

believe

existed

at

the

time, could

cause that mast to break.

Further

Clinton,

screw

the

examined

by

witness complained

plaintiffs'

counsel,

of imperfect

fastenings leading the mast to crack.

placement of

The court again

inquired:

THE

COURT.

. . .

the

It's my
dismasting

because of two factors:

understanding that
. . .

A.

Yes.

occurred

One, the cracks,

as you've displayed to the jury.

Mr.

THE COURT.

And a marginal[
3]
what?
__________________

____________________

2.
when

The force of this testimony is borne out by the fact that

Hood made

replacement mast,

and

clearly knew

the

vessel's weight, it did not make a heavier one.

3.

The

word

"marginal"

seems

to have

interpretation of "barely adequate."

-3-

been

the

court's

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.

THE

Yes.

COURT.

And the other is that the

___________________________

mast itself was too -___________________

A.

Too light.
_________

There followed a recapitulation

term

"barely adequate"

questioning by the court.

by the witness in

again occurred, ending

which the

with further

THE COURT.

. . . What caused the cracks,

did you say?

A.

believe

movement which

that

this

excess

would be existent

of

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.
_________

-4-

This last is an

interesting statement:

ANGEL's "service," cruising, there

margin of safety needed than for

for RULING

is a different, a greater

racing.

This point was not

pursued,

but is

regardless?

it

That

not

the

cruisers

racers

need a

who

crack

greater

on

sail,

margin

is

recognition that not just wind and weather, but other matters

as

well, require a reservoir

wear

and tear

cruisers,

not

particularly

weather,

with no

suffer from.

margin of safety was

case.

repair, for

needing

but some

of protection.

other

to

be

Lack of care,

example, are

kept

up

to

ills that

scratch,

may

The fact that it was not wind and

weakness by

which RULING

ANGEL's

exceeded, should not affect plaintiffs'

Nor is it material

that the ill

was not identified.

This must be omnibus protection, or it would be meaningless.

Following this, Hood

be stricken

moved that Hadley's testimony

because counsel's answer to

an interrogatory as

to what Hadley would testify was given before Hadley had been

consulted,

and hence was

complained

because the

a fraud on

answer

the court.

Also Hood

omitted cracks.

The

sustained the latter complaint.

His testimony is stricken just as to

his

testimony

regarding

causing, as being

one of the

of the dismasting . . .
testimony

may

the

-5-

as

causations

the rest of

stand

consideration.

crack

for

his
your

court

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

specifying
specify

were my
a mast

[this

adequate.

design and I

to Hood, I

mast].
I

It

would

one-and-three

recommend

would not
is

barely

recommend,

example, I said the factor of

about

were

quarters,

for

safety was
I

would

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.
if

. . . [I]t seems

. . . the

damages

was

manufacture

____________________

basis
the
and/or

to me that

ultimately for

the

alleged

defective

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"
interfere

with

consists of "unconscionable scheme" to

judicial

system's

ability

to

properly).

-6-

your

witness said that it was marginally

appropriate,

or

words

to that

How does it get to the jury?

effect.

adjudicate

MR.

CLINTON.

Everybody else

wouldn't have

put

. . . .

also

We

it on

the

. . .

have

said

he

vessel[5]
implied

warranty

. . . .

THE

COURT.

good.

He

said it

was marginally

I'm going to grant

the motion on

that basis.

The Appeal6
__________

Manifestly this

prepared.

ambivalent

witness had

Even after the perspicacious

had straightened him

on final cross he

lapsed back.

Nor did

message.

Small wonder

Enough.

However, should it have?

testimony

ran

been

court's questioning

out (see emphasized testimony,

get the

Hadley's

not

supra),
_____

plaintiffs' counsel

frustrated court

two ways.

called

Omitting the

final

cross,

attention to

to where

careful

reading,

ante,
____

the emphasized portions, and

the court's question begins,

with

particular

special attention

"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

circumstance that
the negligent

the vessel

because of the

was in that

design manifested

stay within the forum.

-7-

itself.

fortuitous

jurisdiction when
For

such lack

we

light

-- slight

insufficient

--

in the

sense

margin of safety for

of

there was

this ship.

added

an

Then, in the

last cross, he took it all back.

Plaintiffs,

expert's

reversal; the

however,

jury was

were

not

free to

bound

choose.

by

their

Lane v.
____

Epinard, 318 Mass. 664, 63 N.E.2d 463 (1945) is an articulate

_______

example.

as

Plaintiff sued for breach of a contract to hire her

a housekeeper.

Defendant

testified that this

was to be

only

if his

decided

not

present housekeeper

to.

Plaintiff

testified

agreed he would discharge her.

defendant

trial

decided to leave,

that defendant

had

Plaintiff also testified that

had not agreed to discharge her.

court's denial

and she

of defendant's

In affirming the

motion for

a directed

verdict the court said,

The

plaintiff's

contradictory
inconsistent
aspects of her
. . .

in
in

many

as

is

respects and

is

reference
case.

. . .

could accept such

testimony

testimony

they

to

material
The

jury

portions of her

deemed

worthy

of

credence.

318 Mass. at 666, 63 N.E.2d at 465.

Where

interest

a party

testifies finally

she will normally be bound thereby.

against her

own

See O'Brien v.
___ _______

Harvard Rest. & Liquor Co.,

___________________________

658,

310 Mass. 491.

659 (1941) (citing cases).7

493, 38

A party,

N.E.2d

however, is not

____________________

7.

We

note

chronology of

that

the

Lane
____

court

did

the plaintiff's conflicting

have been generous in this respect.

-8-

not

consider

the

testimony and may

bound by her witness' unfavorable testimony if there is other

evidence.

206,

See Lydon
___ _____

34 N.E.2d

rudimentary

642, 644

that a

(1941), and

witness

disbelieved in part.

Where Hadley

v. Boston Elevated Ry., 309

___________________

may

be

Mass. 205,

cases cited.

believed in

It

part

is

and

Id. at 206, 211, 34 N.E.2d at 644, 646.

___

was self-contradictory, the jury

could believe

whichever account it chose.

To

repeat,

examination,

the

in

jury

testimony that the mast's

that it did

cruising

spite

could

of

Hadley's

final

cross-

have

accepted

his

earlier

design was too light in

not provide a sufficient margin of

yacht.

inappropriate.

directed

verdict

for

the sense

safety for a

Hood

was

Reversed.
________

-9-