Toucet v. Maritime ( 1993 )


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    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________


    No. 92-1244

    ANGEL TOUCET,

    Plaintiff, Appellee,

    v.

    MARITIME OVERSEAS CORP.,

    Defendant, Appellant.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF PUERTO RICO


    [Hon. Gilberto Gierbolini, U.S. District Judge]
    ___________________

    ____________________

    Before

    Stahl, Circuit Judge,
    _____________
    Campbell, Senior Circuit Judge,
    ____________________
    and Skinner,* Senior District Judge.
    _____________________

    ____________________

    Andrew H. Quinn with whom Dante Mattioni, Francis X. Kelly,
    _________________ _______________ _________________
    Mattioni, Mattioni & Mattioni, Ltd., and Antonio Jimenez Miranda were
    ____________________________________ _______________________
    on brief for appellant.
    Harry A. Ezratty for appellee.
    ________________

    ____________________

    April 20, 1993
    ____________________

    _____________________
    * Of the District of Massachusetts, sitting by designation.



















    SKINNER, Senior District Judge
    _____________________

    Plaintiff Angel Toucet, a seaman, brought this action

    against his employer, Maritime Overseas Corporation, seeking

    damages for a back injury suffered aboard the defendant's

    vessel, the Overseas Alaska. Toucet alleged negligence
    _______________

    under the Jones Act, 46 U.S.C. 688, and unseaworthiness

    under general maritime law. After trial, a jury returned a

    special verdict in Toucet's favor on the Jones Act count,

    but did not find the Overseas Alaska to be unseaworthy. The
    _______________

    trial court denied Maritime's motions for judgment n.o.v.

    and a new trial or, in the alternative, for remittitur of

    the $75,000 verdict.

    On appeal, Maritime contends that the trial court erred

    in denying Maritime's motions for judgment n.o.v. and a new

    trial because the jury's finding of negligence is

    irreconcilably inconsistent with its rejection of the claim

    of unseaworthiness. Maritime also asserts that the trial

    court erred by allowing Toucet's counsel to pose a

    hypothetical question that was improperly based on facts not

    in evidence and by denying Maritime's motion for remittitur.








    2




















    BACKGROUND
    BACKGROUND

    We briefly review the evidence developed at trial in

    the light most favorable to Toucet. See Transnational Corp.
    _______________________

    v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1068 (1st Cir.
    ________________________

    1990).

    On August 27, 1987, while the Overseas Alaska was in
    _______________

    the port of New Orleans, the crew was advised that the

    vessel's cargo tanks would be bottom washed. Seeking to

    avoid the cleaning operation, Toucet and two other crew

    members requested leave to quit the ship. Toucet told the

    boatswain that after working approximately twelve hours

    consecutively he was too exhausted to participate in the

    tank cleaning. Toucet's request was denied because the

    ship's union agreement required crew members to provide 24

    hours advance notice before quitting.

    At approximately 5:30 p.m., the cleaning process, which

    is commonly called "butterworthing," began. Several

    witnesses testified that butterworthing is hard work,

    requiring several men to complete the task. On this

    particular day, the Overseas Alaska's crew was divided into
    _______________

    two six-hour shifts, each consisting of four men. Toucet,

    who was now working overtime, was assigned to the first

    shift. While the Overseas Alaska's union agreement required
    _______________


    3




















    a minimum of three men to perform the task, testimony at

    trial revealed that butterworthing was ordinarily performed

    on other ships by more than four men.

    The term butterworthing refers to the equipment (a

    butterworth machine) used to clean the tanks. During trial,

    the butterworth was described as a brass cylindrical device,

    weighing approximately 30 pounds. The butterworth is

    attached to the end of a flexible, hard rubber hose that has

    a 10-inch diameter and weighs approximately 100 pounds. To

    accomplish bottom washing, the crew lowers the hose and

    butterworth approximately 30-40 feet into the openings of

    each tank. Once in the tank, hot water is pumped through

    the hose into the butterworth. The water pressure causes

    the head of the butterworth to spin and, while the head

    spins, water is forced out of two release valves located on

    the side of the butterworth. Upon release from the

    butterworth, the hot water is directed against the wall and

    floor panels of the cargo tanks at approximately 90 p.s.i.

    pressure. Once a tank is cleaned, the crew pulls the

    butterworth and hose out of the opening and moves or

    "shifts" the equipment to the next opening. Typically, the

    removal process is accomplished by the seamen pulling on the

    hose in unison.


    4




















    Toucet testified that he was injured while removing the

    butterworth and hose from one of the Overseas Alaska's
    _______________

    tanks. More specifically, Toucet testified that the deck

    engine utility (DEU), who was one of the crew members

    assigned to assist in the butterworthing, was inexperienced

    and inept at the task. As a result of the DEU's

    inexperience, the hose was allowed to slacken on several

    occasions. Toucet and at least one other team member

    complained to the boatswain that the DEU's inexperience was

    making the butterworthing more difficult and Toucet again

    reported that he was exhausted. The boatswain replied that

    he could not do anything because the rest of the crew was

    sleeping. A short time after complaining, Toucet testified

    that he was jolted by grasping at the slipping hose and that

    he felt his back crack when he attempted to stand erect.

    The case was submitted to the jury on both the Jones

    Act and general maritime law claims. With regard to

    unseaworthiness, Toucet alleged that the Overseas Alaska was
    _______________

    unseaworthy in relation to the butterworthing operation

    because: (1) the number of seamen provided to complete the

    task was inadequate, and (2) one of the seamen who was

    assigned to the task was inexperienced and inept. Toucet's

    negligence claim under the Jones Act was similarly based on


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    Maritime's failure to provide an adequate and experienced

    crew for the butterworthing operation. In addition, Toucet

    alleged that Maritime was negligent by requiring him to

    participate in the butterworthing operation despite his

    earlier complaint of exhaustion.

    DISCUSSION
    DISCUSSION

    A. Alleged Verdict Inconsistency
    _____________________________

    When a special verdict form results in apparently

    conflicting findings, a court has a duty under the Seventh

    Amendment to harmonize the answers if at all possible under

    a fair reading. Atlantic & Gulf Stevedores, Inc. v.
    ___________________________________

    Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962); Santiago-
    ____________________ _________

    Negron v. Castro-Davila, 865 F.2d 431, 443 (1st Cir. 1989)
    _______________________

    (citing Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108,
    ____________________________________

    119 (1963)).

    Maritime contends that the jury's answers on the

    negligence and seaworthiness questions cannot be harmonized

    because both claims are grounded on the same underlying

    factual allegations -- that the crew was both inadequate and

    too inexperienced to accomplish the butterworthing task. By

    finding the Overseas Alaska to be seaworthy, Maritime argues
    _______________

    that the jury necessarily rejected Toucet's inadequate and

    inexperienced assistance allegations. Maritime concludes,


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    therefore, that there was no basis for finding it negligent

    and that the verdict must be set aside as irreconcilably

    inconsistent.

    We need not address the merits of this argument because

    Maritime failed to make a timely objection to the alleged

    inconsistency. In this circuit, a "party waives

    inconsistency if it fails to object after the verdict is

    read and before the jury is dismissed." Bonilla v. Yamaha
    _________________

    Motors Corp., 955 F.2d 150, 155-56 (1st Cir. 1992) (citing
    ____________

    Austin v. Lincoln Equip. Assocs., 888 F.2d 934, 939 (1st
    ________________________________

    Cir. 1989)); Peckham v. Continental Casualty Ins. Co., 895
    __________________________________________

    F.2d 830, 836 (1st Cir. 1990) (citing McIsaac v. Didriksen
    ____________________

    Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987)). This is
    _____________

    because the "only efficient time to cure the problem is

    after the jury announces its results and before it is

    excused, and it is the responsibility of counsel to make

    timely objection." Austin v. Lincoln Equip. Assocs., 888
    ________________________________

    F.2d at 939.

    We have carefully reviewed the entire record in this

    case, including the clerk's minutes of the proceedings and

    the docket sheet.1 It is apparent from the record that

    ____________________

    1 Under Rule 10, the record on appeal properly includes
    "[t]he original papers and exhibits filed in the district
    court, the transcript of proceedings, if any, and a

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    Maritime failed to object to the verdict's asserted

    inconsistency prior to the jury's discharge. (Clerk's

    Minutes, Oct. 10, 1991; Docket Entry 71.) In fact,

    Maritime did not raise the inconsistency issue until filing

    its post trial motions on October 23, 1991 -- 13 days after

    the jury was discharged and long after the optimum time for

    curing any alleged defect. (Docket Entry 74.) While

    Maritime omitted the portion of the transcript relating to

    the reading of the verdict from its appendix,2 our review

    on appeal is not limited to the materials submitted by the

    parties. FED. R. APP. P. 30(a) ("The fact that parts of the

    record are not included in the appendix, shall not prevent

    the parties or the court from relying on such parts.").

    Maritime's failure to object cannot be excused by its

    inability to anticipate the jury reaching potentially

    inconsistent findings. See McIsaac v. Didriksen Fishing
    ________________________________


    ____________________

    certified copy of the docket entries prepared by the clerk
    of the district court . . . ." FED. R. APP. P. 10(a). Rule
    10's scope reaches "'all papers presented to the district
    court and filed in the record and all papers filed by the
    district court itself.'" In re Arthur Andersen & Co., 621
    ____________________________
    F.2d 37, 39 (1st Cir. 1980) (quoting 9 JAMES W. MOORE ET
    AL., MOORE'S FEDERAL PRACTICE 210.04[1]).

    2 Maritime's failure to include the October 10, 1991
    transcript in its appendix is particularly surprising since
    the verdict, which was returned and read in open court on
    that day, is the primary focus of the present appeal.

    8




















    Corp., 809 F.2d at 134 (rejecting appellant's argument that
    _____

    it could not have anticipated verdict inconsistency where

    jury instructions and special verdict form served as

    harbingers for inconsistency). The circumstances of this

    case indicate that Maritime had ample opportunity to

    "portend possible verdict inconsistency." Austin v. Lincoln
    _________________

    Equip. Assocs., 888 F.2d at 939. For instance, Maritime
    ______________

    should have been alerted by the use of the special verdict

    form alone. See id. As we noted previously, "'[t]he mere
    ________

    fact that the jury's verdict would be in the form of special

    answers should have been enough to alert counsel to

    potential inconsistency.'" Id. (quoting McIsaac v.
    ____ __________

    Didriksen Fishing Corp., 809 F.2d at 134).
    _______________________

    In addition to the special verdict form, Maritime

    should have been alerted to the potential inconsistency by

    the jury instructions. See McIsaac v. Didriksen Fishing
    ________________________________

    Corp., 809 F.2d at 134. The court specifically instructed
    _____

    the jury that the negligence and unseaworthiness claims were

    "separate and independent" and that the plaintiff could

    recover on one or both. (Appellant's App. at 753a and

    760a.) In fact, the jury requested additional instructions

    regarding the meaning of unseaworthiness. (Clerk's Minutes,

    Oct. 10, 1991; Docket Entry 71.); see McIsaac v. Didriksen
    ________________________


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    Fishing Corp., 809 F.2d at 134 (counsel on notice of
    _____________

    potential inconsistency where jury interrupted deliberations

    to inquire into differences between negligence and breach of

    warranty claims).

    Despite these obvious warning beacons, Maritime

    remained silent while the verdict was read and the jury was

    discharged. We decline to condone this "'agreeable

    acquiescence to perceivable error as a weapon of appellate

    advocacy.'" Id. (quoting Merchant v. Ruhle, 740 F.2d 86, 92
    ____ _________________

    (1st Cir. 1984)).

    While the timeliness issue was not addressed by either

    party and consequently was not explored by the trial court,

    "'[w]e are, of course, free to affirm a district court's

    decision on any ground supported by the record even if the

    issue was not pleaded, tried or otherwise referred to in the

    proceedings below.'" Chamberlin v. 101 Realty, Inc., 915
    ______________________________

    F.2d 777, 783 n.8 (1st Cir. 1990) (quoting Norris v.
    _________

    Lumbermen's Mut. Casualty Co., 881 F.2d 1144, 1151-52 (1st
    _____________________________

    Cir. 1989) (additional citations omitted)). This is

    particularly appropriate here because the parties have had

    sufficient opportunity to develop arguments relating to the

    verdict's alleged inconsistency before both the trial court

    and this court. See Papex Int'l Brokers, Ltd. v. Chase
    ___ __________________________________


    10




















    Manhattan Bank, 821 F.2d 883, 885 (1st Cir. 1987). In
    _______________

    addition, Maritime's untimely objection is apparent from the

    record and our determination can be made as a matter of law.

    See Watterson v. Page, No. 92-1224, 1993 U.S. App. LEXIS
    _____________________

    2029, at *14 n.3 (1st Cir. Feb. 9, 1993). Under these

    circumstances, it is appropriate to affirm the trial court's

    decision, even though the precise issue was neither raised

    by the parties or addressed by the trial court. See id.
    ______

    Accordingly, we hold that Maritime waived any potential

    inconsistency in the jury's verdict as a basis for appeal by

    failing to object before the jury was discharged.

    In any case, there is no inconsistency between the

    verdicts in this case. It is well recognized that claims

    under the Jones Act and claims for unseaworthiness are

    discrete claims. See, e.g., Usner v. Luckenbach Overseas
    _______________________________________

    Corp., 400 U.S. 494, 498 (1971). While the evidence is
    _____

    often congruent, or at least overlapping, this is not

    necessarily so, and a number of cases demonstrate that a

    single incident of negligence, such as the requirement that

    a seaman work when he has reported that he was too fatigued

    to do so, may occur without rendering the ship unseaworthy.

    Borras v. Sea-Land Serv., Inc., 586 F.2d 881, 888 (1st Cir.
    ______________________________

    1978); Merchant v. Ruhle, 740 F.2d at 91; Simeon v. T. Smith
    _________________ ____________________


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    & Son, Inc., 852 F.2d 1421, 1433 (5th Cir. 1988), cert.
    ___________ _____

    denied, 490 U.S. 1106 (1989); Gosnell v. Sea-Land Serv.,
    ______ ____________________________

    Inc., 782 F.2d 464, 467 (4th Cir. 1986); Kokesh v. American
    _____ __________________

    S.S. Co., 747 F.2d 1092, 1094 (6th Cir. 1984).
    __________

    We also find that sufficient evidence was established

    at trial to support the jury's finding of negligence. A

    plaintiff's burden of proving causation under the Jones Act

    is "featherweight". Leonard v. Exxon, 581 F.2d 522, 524
    ________________

    (5th Cir. 1978), cert. denied, 441 U.S. 923 (1979).
    ____________

    Liability exists if the employer's negligence contributed

    even in the slightest to the plaintiff's injury. Santana v.
    __________

    United States, 572 F.2d 331, 335 (1st Cir. 1977) (citing
    _____________

    Rogers v. Missouri-Pacific R.R. Co., 352 U.S. 500, 506
    __________________________________

    (1957)). Here, sufficient evidence was introduced to

    support the jury's determination that Maritime was negligent

    in requiring Toucet to continue working despite his claims

    of exhaustion and inadequate assistance, and that this

    negligence contributed to Toucet's back injury. Perez v.
    ________

    Maritime Transport Lines, Inc., 661 F.2d 254, 254 (1st Cir.
    ______________________________

    1979) (employer negligent for not relieving the plaintiff

    from duty despite the plaintiff's complaints of overwork and

    inadequate assistance, and that negligence contributed to

    the plaintiff's injury).


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    B. Improper Hypothetical Question
    ______________________________

    Maritime asserts that the trial court erred by allowing

    the plaintiff's expert witness, Dr. Jaun Llompart, to answer

    a hypothetical question that improperly assumed facts not in

    evidence. Specifically, plaintiff's counsel asked Dr.

    Llompart to assume, in part, that a hypothetical seaman was

    injured after pulling a hose and butterworth out of 12 tank

    openings. Maritime asserts that this assumption was

    contrary to the evidence introduced at trial, which revealed

    that Toucet was injured after only 4 tank openings were

    cleaned.

    While a hypothetical should include only those facts

    supported by the evidence, Iconco v. Jensen Constr. Co., 622
    ____________________________

    F.2d 1291, 1301 (8th Cir. 1980), the record here indicates

    that sufficient facts existed to support the challenged

    hypothetical. Each numbered tank had twelve openings, six

    on the port side and six on the starboard side.

    (Appellant's App. at 48a; 154a-56a; 162a.) During direct

    examination, Toucet testified that he and the rest of the

    team lowered a total of six hoses into the first six

    openings of tank number one, three on each side. Id. at
    ____

    51a; 162a. After completing the first six openings, the

    team proceeded to clean the remaining six openings of tank


    13




















    number one in the same manner. Toucet testified that after
    __

    completing the butterworthing of tank number one he and the

    team proceeded to the first opening of tank number two.

    Toucet felt his back "crack" while working on tank number

    two. On this record, we find that the factual assumptions

    underlying the plaintiff's hypothetical were fully supported

    by the evidence. Moreover, Federal Rules of Evidence 703

    and 705 place the "full burden of exploration of the facts

    and assumptions underlying the testimony of an expert

    witness squarely on the shoulders of opposing counsel's

    cross-examination." Smith v. Ford Motor Co., 626 F.2d 784,
    _______________________

    793 (10th Cir. 1980), cert. denied, 450 U.S. 918 (1981).
    ____________

    During its cross-examination of Dr. Llompart, Maritime

    elected not to explore any perceived discrepancies or

    inconsistencies relating to the hypothetical, nor did

    Maritime ever explicitly call the attention of court or

    counsel to the discrepancy it now asserts.

    In short, Maritime's assertion of error is without

    merit. Accordingly, we affirm the trial court's ruling

    admitting Dr. Llompart's answer to the hypothetical

    question.






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    C. Remittitur
    __________

    The final issue is the propriety of the trial court's

    denial of Maritime's motions for a new trial on damages or,

    in the alternative, for remittitur. Maritime alleges that

    the jury's $75,000 damage award for what it characterizes as

    a "BenGay back injury" is unreasonably excessive and

    unsupported by the evidence.

    We review the trial court's denial of Maritime's

    motions for "manifest abuse of discretion." Joia v. Jo-Ja
    _____________

    Serv. Corp., 817 F.2d 908, 918 (1st Cir. 1987) (citing
    __________

    Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970, 975 (1st
    _________________________________

    Cir.), cert. denied, 409 U.S. 876 (1972)), cert. denied, 484
    ____________ ____________

    U.S. 1008 (1988). In challenging the jury's determination

    of damages, Maritime assumes a heavy burden. Milone v.
    _________

    Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988). This
    ___________________

    court has previously observed that, "'[t]ranslating legal

    damage into money damages . . . is a matter peculiarly

    within a jury's ken.'" Id. (quoting Wagenmann v. Adams, 829
    ___ __________________

    F.2d 196, 215 (1st Cir. 1987)). Accordingly, a jury's

    judgment regarding the appropriate damage award is given

    wide latitude and will be upheld so long as it does not

    exceed "'any rational appraisal or estimate of the damages

    that could be based on the evidence before the jury.'" Id.
    ___


    15




















    (quoting Segal v. Gilbert Color Sys., 746 F.2d 78, 81 (1st
    ___________________________

    Cir. 1984)). In making this determination, we view the

    evidence in the light most favorable to the plaintiff.

    McDonald v. Federal Lab., Inc., 724 F.2d 243, 246 (1st Cir.
    ______________________________

    1984) (quoting Betancourt v. J.C. Penny Co., 554 F.2d 1206,
    ____________________________

    1207 (1st Cir. 1977)).

    Cast in the appropriate light, we find that the jury's

    assessment of Toucet's damages is within the "'wide range of

    arguable appropriateness.'" Milone v. Moceri Family, Inc.,
    ______________________________

    847 F.2d at 40 (quoting Wagenmann v. Adams, 829 F.2d at
    __________________

    216). In calculating the amount of damages, the jury was

    instructed to consider lost earnings, as well as pain and

    suffering. With regard to lost earnings, the evidence

    indicated that Toucet was unable to work for more than three

    months after his injury. Although Toucet was pronounced

    "fit for duty" by his doctor and attempted to resume work as

    a seaman in December 1987, Toucet testified that he was

    unable to remain on the job for more than a few days because

    of his back injury. In terms of pain and suffering, Toucet

    testified that, up until the time of trial, he continued to

    suffer pain and discomfort attributable to his injury aboard

    the Overseas Alaska, even though the injury occurred four
    _______________

    years earlier.


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    Under these circumstances, we conclude that the jury's

    $75,000 judgment cannot be fairly characterized as "``grossly

    excessive,'" "``inordinate'" or "``shocking to the

    conscience'". See McDonald v. Federal Lab., Inc., 724 F.2d
    _________________________________

    at 246 (quoting Grunenthatl v. Long Island R.R. Co., 393
    ___________________________________

    U.S. 156, 159 n.4 (1968)). Accordingly, we find no abuse of

    discretion in the trial court's denial of Maritime's motions

    for a new trial on damages or for remittitur.

    CONCLUSION
    CONCLUSION

    The trial court's orders directing judgment to enter

    according to the jury's verdict and dismissing Maritime's

    post trial motions are AFFIRMED.
    AFFIRMED.
























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Document Info

Docket Number: 92-1244

Filed Date: 4/20/1993

Precedential Status: Precedential

Modified Date: 9/21/2015

Authorities (22)

Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd. , 82 S. Ct. 780 ( 1962 )

jules-simeon-sr-and-ida-mae-griffin-simeon-wife-of-jules-simeon-sr , 852 F.2d 1421 ( 1988 )

Nelson M. Gosnell v. Sea-Land Service, Inc., and Reynolds ... , 782 F.2d 464 ( 1986 )

William D. McDonald v. Federal Laboratories, Inc. , 724 F.2d 243 ( 1984 )

James P. Merchant v. Philip Henry Ruhle , 740 F.2d 86 ( 1984 )

Rafael Perez v. Marine Transport Lines, Inc. , 661 F.2d 254 ( 1979 )

Papex International Brokers Ltd., A/K/A Les Courtiers Papex ... , 821 F.2d 883 ( 1987 )

Dora Iris Betancourt v. J. C. Penney Co., Inc. , 554 F.2d 1206 ( 1977 )

Ivette Santiago-Negron v. Modesto Castro-Davila, Etc. , 865 F.2d 431 ( 1989 )

Jorge L. Bonilla v. Yamaha Motors Corp. , 955 F.2d 150 ( 1992 )

Paul S. Segal v. Gilbert Color Systems, Inc. , 746 F.2d 78 ( 1984 )

Juan Antonio Borras v. Sea-Land Service, Inc. , 586 F.2d 881 ( 1978 )

Francisco Joia v. Jo-Ja Service Corp., Boat Niagara Falls, ... , 817 F.2d 908 ( 1987 )

prod.liab.rep.(cch)p 12,293 Otis Austin v. Lincoln ... , 888 F.2d 934 ( 1989 )

Richard D. Norris v. Lumbermen's Mutual Casualty Company , 99 A.L.R. Fed. 755 ( 1989 )

Rogers v. Missouri Pacific Railroad , 77 S. Ct. 443 ( 1957 )

Gallick v. Baltimore & Ohio Railroad , 83 S. Ct. 659 ( 1963 )

Vincent Milone v. Moceri Family, Inc. , 847 F.2d 35 ( 1988 )

James R. McIsaac v. Didriksen Fishing Corp., Appeal of the ... , 809 F.2d 129 ( 1987 )

Transnational Corp. v. Rodio & Ursillo, Ltd., Etc. , 920 F.2d 1066 ( 1990 )

View All Authorities »