Hill v. Reederei F. Laeisz

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

1-31-2006

Hill v. Reederei F. Laeisz

Precedential or Non-Precedential: Precedential

Docket No. 04-4335

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 04-4335

____________

CORNELIUS HILL;

TRUDIE HASTINGS HILL, H/W,

Appellants

v.

REEDEREI F. LAEISZ G.M.B.H., ROSTOCK;

SCHIFFARHTSGESELLSCHAFT MS

PRIWALL MBH & CO. KG

____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 02-cv-02713)

District Judge: Honorable Michael M. Baylson

____________

Argued December 5, 2005

Before: RENDELL, FISHER

and VAN ANTWERPEN, Circuit Judges.

(Filed: January 31, 2006)

E. Alfred Smith (Argued)

1333 Race Street, 2nd Floor

Philadelphia, PA 19107

Attorney for Appellants

Carl D. Buchholz, III (Argued)

Rawle & Henderson

One South Penn Square

The Widener Building

Philadelphia, PA 19107

Attorney for Appellees

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

This is a negligence suit under the Longshore and Harbor

Workers Compensation Act (“LHWCA”). An injured

longshoreman sued the ship on which he was injured.1 A jury

1

In LHWCA cases there are three parties: the “ship,” or

“shipowner”; the “longshoreman”; and the “stevedore,” or

“stevedoring company.” In this case the defendants are

Schiffartsgessellschaft MS Priwall MBH & Co., the ship’s

owner, and Reederei F. Laeisz G.M.B.H., the ship’s operator.

We will refer to the defendants collectively as “the defendants”

or “the ship.”

2

found for the defendant ship, and the plaintiff, assigning several

errors in the trial, asks us to vacate the judgment of the District

Court and remand for a new trial. For the reasons that follow,

we will do so.

I.

Under the LHWCA, injured longshoremen are barred

from suing their employers, the stevedoring companies that

contract with shipowners for loading and unloading work. 33

U.S.C. § 905(a). Instead, the stevedoring companies pay

statutory compensation to injured longshoremen. 33 U.S.C.

§ 904(a). Longshoremen are, however, permitted to bring

negligence actions against the ship on which they were injured.

33 U.S.C. § 905(b).

Plaintiff Cornelius Hill was injured while unloading

cargo in the hold of defendants’ ship, the Sea Panther, on

August 24, 2000. He and another longshoreman, one Dwight

Jones, were loosening the steel “lashing rods” which hold the

cargo containers in place. While Jones was attempting to loosen

a rod, it sprung off its housing and flew through the air, hitting

Hill in the head, smashing his hard hat, knocking him

unconscious and almost killing him. App. 63-64.

The lashing rods are thin steel rods, threaded at the ends.

They are attached to the deck, or to the top of a container

(containers are stacked several layers deep), and then to the

corners of each container, where they are screwed tightly into

turnbuckles. Turnbuckles are threaded cylinders into which the

rods are inserted and then tightened with wing nuts. The rods,

3

when tightened, are under enormous tension, and if a turnbuckle

or rod is rusty or improperly installed, it can weaken, break or

come loose.

Jones testified that the rod, nut, and turnbuckle were rusty

and improperly installed, and that the turnbuckle was several

inches out of place and was “frozen” on the rod. App. 63, 68-

70. Jones said he saw rust on the turnbuckle, and no grease.

Properly maintained rods, turnbuckles, and nuts,2 are regularly

greased, to prevent rusting. Jones was unable to turn the wing

nut, so, in accordance with customary longshoremen’s practice,

he struck it with his wrench to loosen it. App. 63. When he

struck the wing nut, the rod snapped off its housing and flew

through the air some thirty-two feet before hitting Hill. App. 64.

While at sea, a ship’s crew must continually inspect the

lashing assembly, because if cargo containers shift or fall, they

can unbalance and even sink the ship. App. 216-17. The ship’s

captain testified that the crew did so here. App. 295. Upon

docking, the crew “turns over” the ship to the stevedoring

company for unloading. The ship has a legal duty to turn over

the ship to the longshoremen in safe condition for unloading.

Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156,

167 (1981); Kirsch v. Prekookeanska Plovibda, 971 F.2d 1026

(1992). Hill alleged that the lashing assembly that injured him

was rusty and improperly installed, and that the ship breached its

2

The combination of rod, turnbuckle, and wing nut is

referred to collectively as a “lashing” or “lashing assembly.”

4

turnover duty by leaving the rusty, improperly installed lashing

in place without repairing it or warning the stevedore.

In response, the ship asserted two theories. First, it

contended that if the turnbuckle was rusted, any hazard that it

created should have been open and obvious to Jones, and that

Jones was negligent in hitting the rusted turnbuckle with his

wrench rather than seeking help from his supervisor. Second,

the ship’s expert hypothesized that the accident had not in fact

taken place as Jones testified. Rather, the expert suggested,

Jones might have partially loosened the turnbuckle without fully

loosening the wingnut, thereby causing the turnbuckle to jam.

Then when Jones struck the partially loosened turnbuckle he

failed to hold on to the lashing rod, causing the rod to spring

free of its casing. Thus, the ship claimed, Jones’s actions, not

the ship’s, were the cause of the accident.

The case went to trial and a jury found in favor of the

ship. Hill moved for a new trial, and now appeals from the

denial of that motion. He raises three objections to the jury

instructions and one to the admission of expert testimony. He

argues that the District Court’s instruction on superseding cause

was in error, that the District Court misstated the law as to the

ship’s turnover duty, and that he was entitled to a res ipsa

loquitur instruction. The testimony to which he objects is that

of the defense’s expert witness, who testified that it would have

been physically impossible for the accident to occur in the way

that Jones claimed it did. Hill argues that in so testifying, the

expert went outside the bounds of his written report, and that

Hill suffered from unfair surprise.

5

II.

We begin with the ship’s “turnover duty.” Hill contends

that the jury instructions were an inaccurate statement of the

duty as explained most recently by this Court in Kirsch, 971

F.2d 1026. Hill requested an instruction that the ship would

have a duty to fix or warn about the turnbuckle if the ship should

have known that the longshoremen would not be able to

ameliorate it by “practical” measures. The District Court

declined to give that instruction. Our review of the legal

correctness of jury instructions is plenary. Parks v. AlliedSignal,

Inc., 113 F.3d 1327, 1330 (3d Cir. 1997).

Here is the relevant instruction:

The defendants do have a duty to warn of

latent defects in the cargo stow and cargo area.

This duty is a narrow one and attaches only to

latent hazards defined as hazards that are not

known to the stevedore and that would be neither

obvious to nor anticipated by a skilled stevedore

in the competent performance of his work. The

duty encompasses only those hazards that are

known to the vessel or should be known to it in

the exercise of reasonable care.

As I mentioned above, the defendants are

not liable if the danger that caused Plaintiff Hill’s

injuries would have been obvious to a reasonably

competent stevedore. However, there is an

exception to this rule. The defendants may be

6

liable for an obvious hazard because custom,

positive law, or contract instructs the ship owner

to rectify the particular hazard, regardless of its

obviousness.

For example, where a ship owner should

know that longshore workers frequently confront

rather than avoid a type of obvious hazard, the

ship owner may be negligent in not limiting the

hazard.

App. 445.

Translating appellate opinions into jury instructions is a

notoriously difficult undertaking, and we take note of the fact

that the District Court clearly read and attempted to apply

Kirsch. Indeed, some of the quoted language is taken almost

verbatim from Kirsch, see, e.g., 971 F.2d at 1026 (“On the other

hand, customary practice may suggest that the shipowner should

know that longshore workers frequently confront rather than

avoid a type of obvious hazard. If so, the shipowner may be

negligent in not eliminating the hazard . . .”). However, our

review of the legal correctness of jury instructions is plenary,

and, mindful of the fundamental importance to LHWCA cases

of precise articulation of the turnover duty,3 we are compelled

3

As Judge Becker observed in Kirsch, it is vital to state

the scope of the ship’s duty precisely, because the ship is the

only available defendant, and thus the only potential source of

recovery for injured longshoremen beyond the statutory

7

to conclude that the instruction given by the District Court did

not accurately state the law as set out in Kirsch.

Kirsch’s statement of the law is as follows:

[A] shipowner can, ordinarily, reasonably rely on

the stevedore (and its longshore employees) to

notice obvious hazards and to take steps

consistent with its expertise to avoid those

hazards where practical to do so. . . . [A]

shipowner may be liable for failing to eliminate

an eliminable hazard only if it should have

expected that its expert stevedore would not avoid

the hazard and conduct cargo operations safely.

971 F.2d at 1031, 1033 (emphasis added). The highlighted

language is crucial to the instructions here. There are two

LHWCA compensation, and “the no-liability result under the

‘duty’ analysis is similar to the result under the outmoded

common law tort doctrines of contributory negligence and

assumption of risk, doctrines that Congress rejected in 1972

[when it amended the LHWCA].” Kirsch, 971 F.2d at 1031 n.6.

Furthermore, if there is no breach of duty, then there is no

liability, irrespective of causation. If duty is defined too

narrowly, then meritorious claims will be cut off, and if it is

defined too broadly, then claims that should have been cut off

will wrongly be allowed to proceed. Before reaching the dispute

over causation in this case, therefore, we must carefully

ascertain the scope of the applicable duty.

8

components to the rule on open and obvious hazards under

Kirsch. When a ship is turned over to the stevedore with an

open and obvious hazard which injures a longshoreman, the ship

will be liable, first, if avoiding the hazard would be impractical

for the longshoreman, or second, if the ship should have known

that the longshoremen would confront the hazard. The District

Court’s instruction conveys only the second half of this rule.

Thus it does capture the situation we described in Kirsch when

we said that

Kirsch would be able to defeat summary judgment

if he could offer evidence that, in light of custom

. . . at that port or in this industry, [the owner]

would have acted unreasonably to assume that

[the] workers would avoid the danger, . . . that

stevedores and longshore workers frequently

proceed with cargo operations in holds despite

large oil slicks there, which might imply that [the

owner] should have expected that they would do

so here.

Id. at 1034.

Just as in Kirsch the shipowner would have had a duty to

warn of or mitigate the oil slick if the shipowner reasonably

should have known that longshoremen regularly walk through

oil slicks, so too, in this case, if the shipowner reasonably should

have known that longshoremen regularly confront the hazard of

rusty or misaligned turnbuckles, the shipowner would have a

duty to mitigate or warn of rusty or misaligned turnbuckles. In

this regard the jury was adequately instructed.

9

While we do not find error in the District Court’s

instruction on confrontation of hazards, we will note by way of

guidance that we find the introductory phrase “for example”

confusing as the District Court used it in the instruction, because

it implies that the duty to rectify hazards which the shipowner

reasonably should know that longshoremen regularly confront

is a specific example of the general category of duties in which

“custom, positive law, or contract instructs the ship owner to

rectify the particular hazard.” But the duty to mitigate regularly

confronted hazards (reasonably known to be such) is not simply

an instance of the duty to mitigate hazards which the shipowner

is required to rectify by custom, positive law, or contract.

Instead, it is a separate and independent duty, and it is grounded

solely in the knowledge that a reasonable shipowner would have

about longshoremen’s customary practices. This is to say,

regardless of what custom, positive law, or contract

independently have to say about the ship’s duties, our common

maritime law finds duties where longshoremen regularly

confront hazards and the ship should reasonably be aware of that

practice. It is not entirely clear to us that a reasonable jury

would so understand the instruction as given.

We do find error in the District Court’s refusal to include

the requested charge on “practical measures.” To be sure, the

hazards and habits encompassed by the phrases “frequently

confront” and “cannot avoid by practical measures” may overlap

to some degree. But they are not identical. A particular rarely-

occurring hazard may be impractical to avoid, so that it would

not be the case that longshoremen frequently confront it, or that

a reasonable shipowner would know that they do. Nonetheless,

if the hazard cannot practically be avoided, the shipowner may

10

have a duty under Kirsch to mitigate it. And conversely, as we

said in Kirsch, “there may be cases where the shipowner cannot

reasonably expect that [longshoremen] will avoid an obvious

hazard even when practical to do so.” 971 F.2d at 1030-31.

The “practical measures” duty has nothing to do with the

shipowner’s knowledge, or with the frequency of occurrence of

the hazard, but simply with “whether, under all the

circumstances, safer alternatives were impractical.” Id. at 1030.

This duty may attach even when there are in fact alternative

courses of conduct available. In Kirsch, 971 F.2d at 1030, we

quoted with approval the Fifth Circuit’s formulation of the

ship’s duty in Morris:

[T]he longshoreman need not show that he had no

possible alternative but to use defective

equipment or to work in a dangerous area. The

burden is not so heavy. He need show only that

the circumstances made safer alternatives unduly

impractical or time-consuming.

Morris v. Compagnie Maritime Des Chargeurs Reunis, S.A., 832

F.2d 67, 71 (5th Cir. 1987). Morris, in turn, quoted with

approval the Second Circuit’s statement that a duty will attach

when the longshoreman’s “only alternatives would be to leave

his job or face trouble for delaying the work.” Napoli v.

Transpacific Carriers Corp., 536 F.2d 505, 509 (2d Cir. 1976).

If the alternatives to striking a frozen wing nut with a

wrench were impractical – if the longshoreman’s only

alternatives are to leave the job or face trouble for delaying the

11

work – then the shipowner had a duty to warn of or mitigate the

hazard created by such turnbuckles, even if it was open and

obvious. If the evidence could reasonably have supported such

a finding, then the instructions should have specified the

existence of such a duty.

There was considerable testimony from both parties on

longshoremen’s options and practices when faced with frozen

turnbuckles. That testimony concerned both the frequency and

the practicality of various potential responses. For example, the

defendant’s expert witness, Walter Curran, suggested that Jones

should have stopped work when he encountered the frozen

turnbuckle and reported it to his superiors. App. 365. Jones, on

the other hand, testified that a longshoreman who stopped work

to report a frozen turnbuckle to his superiors would be fired as

incompetent. App. 66. No other alternatives were proposed, so

the jury could reasonably have concluded that reporting a frozen

turnbuckle is an impractical way to avoid the risks of hitting the

wing nut. Thus evidence was developed at trial which could

have established a legal duty, but the jury was not told of the

existence of that duty. This was error.

We must accordingly ask whether that error was

harmless. “An error will be deemed harmless only if it is

‘highly probable’ that the error did not affect the outcome of the

case.” Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005)

(citing McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924

(3d Cir. 1985)). In this case, the jury returned a finding of “no

negligence.” That finding might have been based on a

determination that the ship had no duty to mitigate the hazard

created by the frozen turnbuckle. The jury was not told that the

12

impracticality for longshoremen of alternatives to confronting

that hazard can create a duty owed by the ship to mitigate it.

Given the evidence presented, we cannot say that it was “highly

probable” that the result would have been the same had the jury

been correctly instructed on the “practical measures” rule.

In McQueeney, we explained the rationale for keeping a

relatively tight rein on harmless error determinations:

[B]road institutional concerns militate against

increasing the number of errors deemed harmless.

Although it is late in the day to pretend that all

trials are perfect, perfection should still be our

goal. Judge (now Chief Judge) Robinson put the

point well: “The justification for harmless-error

rules is singleminded; they avoid wasting the time

and effort of judges, counsel and other trial

participants. Other considerations enter into the

picture, however, when we set out to ascertain

what is harmless and what is not. Wisdom of the

ages counsels against appellate erosion of the

stature and function of the trial jury. Societal

beliefs about who should bear the risk of error in

particular types of proceedings deserve weight in

decisions on harmlessness. Respect for the

dignity of the individual, as well as for the law

and the courts that administer it, may call for

rectification of errors not visibly affecting the

accuracy of the judicial process. And the

prophylactic effect of a reversal occasionally

might outweigh the expenditure of effort on a new

13

trial.” By maintaining a moderately stringent,

though not unreasonably high, standard in civil as

well as criminal cases, we preserve a strong

incentive for the district courts to minimize their

errors, and we thereby bolster the integrity of the

federal judicial process.

McQueeney, 779 F.2d at 927 (quoting United States v. Burton,

584 F.2d 485, 512-13 (D.C. Cir. 1978) (Robinson, J.,

dissenting)).

We are mindful of the respect due to a jury verdict, and

of the crowded dockets in our district courts. However, we are

also mindful of a litigant’s right to have full and accurate legal

instructions given to the jury. The instructions here were

incomplete, and the omission reasonably could have affected the

outcome of the trial. In order to assist future District Courts in

crafting turnover duty instructions, therefore, we think it

advisable to restate the relevant turnover rules as developed in

our caselaw.

1. The ship has a duty to turn the ship over to the

longshoremen in safe condition for unloading.

2. That duty includes mitigating open and

obvious hazards if the ship reasonably should

know that longshoremen either (a) are likely to

work through them rather than mitigating them, or

(b) are unable to mitigate them through practical

measures.

14

3. Facts about the actual practices of

longshoremen are relevant to the determination of

what the ship reasonably should expect the

longshoremen to do, and what measures are

practical.

The instruction in this case omitted a substantive element of the

ship’s duty, and based on the evidence presented at trial we

cannot conclude that it is highly probable that the omission did

not affect the outcome. The judgment must therefore be

vacated.

III.

We turn now to the vexing topic of superseding cause.

The District Court’s instruction on superseding cause was as

follows:

Now, you may also find that an act of a third party

caused the accident and superseded all other

causes. Generally, this means that the act of a

third party was so unexpected and out of the

ordinary, that it supersedes any negligen[t] act or

acts that may have come before it. If you find that

there is such a superseding cause, any and all

negligent acts that occurred prior to a superseding

cause are not considered a legal cause of the harm

to the plaintiff.

In this case, the defendants contend that

the act of a third party, namely Dwight Jones, was

15

a superseding cause of the accident. If the act of

Dwight Jones was a superseding cause of the

accident, the defendants are not liable for any

damages that the plaintiff . . . sustained as a result

of the accident.

You may find that the act of Dwight Jones

was a superseding cause of the accident, only if

you find that the defendants have proven the

following by a preponderance of the evidence:

First, the defendants had no reason to

know Dwight Jones would act as he did.

Second, a reasonable person would

conclude that Dwight Jones’ act was highly

extraordinary.

And third, the act of Dwight Jones was

either extraordinarily negligent or not a natural

consequence of any act or failure to act by the

defendants.

App. 442.

Hill argues that there was not sufficient evidence

presented to support a finding of superseding cause, and that, at

least as applied in this case, superseding cause is conceptually

in tension with the remedial scheme set forth in the LHWCA.

We conduct our review for sufficiency of evidence de novo,

asking “whether, viewing the evidence in the light most

16

favorable to the nonmovant [in this case the ship] and giving it

the advantage of every fair and reasonable inference, there is

insufficient evidence from which a jury reasonably could find

liability.” W.V. Realty Inc. v. Northern Ins. Co., 334 F.3d 306,

311 (3d Cir. 2003).

The superseding cause instruction implicates both the

principles of maritime tort law as they have developed through

caselaw, and the federal legislative scheme for compensating

longshoremen’s injuries. We conclude that the liability-

allocation scheme created by Congress in the LHWCA requires

us to apply heightened vigilance to superseding cause

instructions in longshoremen’s injury cases. We therefore

provide some background on the cases interpreting both

superseding cause instructions in maritime cases and the

relevant provisions of the LHWCA.

A.

The rule in maritime cases, codified in the LHWCA, is

that where a ship’s negligence causes injury to a longshoreman,

the ship is liable for the full amount of the longshoreman’s

damages, reduced only by the percentage of damages caused by

the longshoreman’s own negligence. Edmonds v. Compagnie

Generale Transatlantique, 443 U.S. 256, 266 (1979). The

concurrent negligence of non-defendants, such as statutorily

immune stevedoring companies, is irrelevant. Id.

In 1975, the Supreme Court decided United States v.

Reliable Transfer Co., 421 U.S. 397 (1975), and adopted

17

comparative fault for the first time in maritime law.4 The Court

held that where plaintiff and defendant were both negligent,

damages should be apportioned according to relative fault. Id.

at 411.

In Edmonds, the Court had to decide whether the Reliable

Transfer principle affected LHWCA cases in which a non-

defendant third party, the stevedoring company, is partly at fault.

Should the defendant’s liability be reduced in that situation?

The Court emphatically said “no.” Edmonds reversed a Ninth

Circuit ruling in a longshoreman’s injury case in which the ship

was adjudged 20% negligent, the longshoreman 10%, and the

stevedoring company 70%. The Ninth Circuit had held that the

comparative fault principles adopted in Reliable Transfer

entailed that the longshoreman could only recover 20% of his

damages from the ship. Not so, said the Court; such a result

would contravene the longstanding rule that where the ship is

negligent, the ship pays for the full amount of the

longshoreman’s injuries, other than those resulting from the

longshoreman’s own negligence. “[W]e are quite unable to

distill from the face of the [amendment] any indication that

Congress intended to modify the pre-existing rule that a

longshoreman who is injured by the concurrent negligence of

4

The rule prior to the Court’s decision in Reliable

Transfer was known as the “divided damages rule.” Under the

rule, which was of ancient common-law provenance, in cases

where two ships were both at fault to any degree, the total

damages were borne equally by each. See Reliable Transfer,

421 U.S. at 400 n.1.

18

the stevedore and the ship may recover for the entire amount of

his injuries from the ship.” Edmonds, 443 U.S. at 266. The

longshoreman himself was responsible for only 10% of his

damages; thus, the Court held, he could recover 90% from any

concurrent tortfeasor.

The Ninth Circuit’s rule, the Court reasoned, would be

unfairly burdensome to the longshoreman, because he is barred

from suing the stevedore, and, as Congress recognized, the

statutory compensation payable under the LHWCA will in many

cases be substantially less than his actual damages. Id. at 269.

In cases where the stevedore’s negligence caused more damages

to the longshoreman than is payable under the LHWCA, the

stevedore will get a windfall, and a concurrently negligent

shipowner will have to bear an added cost. The Ninth Circuit,

and the three dissenters on the Court, thought this arrangement

unfair; the Court replied that judicial sympathy for the ship

comes at the cost of a pound of the longshoreman’s flesh, and

that is not what Congress provided when in its wisdom it

adopted the LHWCA. Congress squarely faced the choice

between full shipowner liability and diminished longshoreman

recovery, and, after extensive debate, chose the former.

In 1972 Congress aligned the rights and liabilities

of stevedores, shipowners, and longshoremen in

light of the rules of maritime law that it chose not

to change. . . . By now changing what we have

already established that Congress understood to

be the law, and did not itself wish to modify, we

might knock out of kilter this delicate balance.

19

As our cases advise, we should stay our hand in

these circumstances.

Id. at 273.

The Court emphasized that Congress has chosen to

specify how the costs of longshoremen’s injuries are to be

apportioned, and there is no question that Congress has the

power to do so. Congress has made stevedores immune from

suit in longshoremen’s injury cases, and that leaves the ship as

the sole defendant. Settled principles of tort law dictate that “[a]

concurrent tortfeasor . . . is not relieved from liability for the

entire damages even when the nondefendant tortfeasor is

immune from liability.” Id. at 260 n.8 (citing Restatement

(Second) of Torts § 880).

B.

Reliable Transfer was brought to the Court’s attention

again in 1996 in Exxon v. Sofec, 517 U.S. 830 (1996). Exxon,

which had been adjudged the superseding cause of its own

damages, asked the Court to rule that the Reliable Transfer

comparative fault principle was logically incompatible with

superseding cause. The Court declined to do so, but gave no

guidance beyond the definitional observation that superseding

cause has to do with causation and comparative fault has to do

with damages. A chorus of commentators protested that Sofec

20

failed to appreciate the conceptual tensions in the relationship

between superseding cause and comparative fault.5

The theoretical reticence of Sofec is brought home in the

lower courts in disputes over jury instructions. In the case at

5

See, e.g., Michael D. Green, The Unanticipated Ripples

of Comparative Negligence, 53 S.C. L. Rev. 1103, 1126, 1127,

1130 (2002) (“not compelling,” “not persuasive,” “remarkably

uninfluential”); Christopher Dove, Dumb as a Matter of Law:

The Superseding Cause Modification of Comparative

Negligence, 79 Tex. L. Rev. 493, 517 (2000) (“merely presents

a conclusion without advancing the argument”); Kelsey L. Joyce

Hooke, Collision at Sea: The Irreconcilability of Superseding

Cause and Pure Comparative Fault Doctrines in Admiralty, 74

Wash. L. Rev. 159, 176 (1999) (“Sofec fell far short of helping

the doctrine of proximate cause become a viable and

understandable method of limiting liability without undermining

the goals of tort law. Instead, the Sofec Court endorsed a rule

that is irreconcilable with pure comparative fault and endorsed

the useless and confusing doctrine of superseding cause.”);

David W. Robertson, Three Radical Revisions to the Law of

Comparative Fault, 59 La. L. Rev. 175, 196 (1998)

(“infamous”).

Many courts have now rejected superseding cause

entirely in two-party cases, because it functions precisely like

contributory negligence. See Paul T. Hayden, Butterfield Rides

Again: Plaintiff’s Negligence as Superseding or Sole Proximate

Cause in Systems of Pure Comparative Responsibility, 33 Loy.

L.A. L. Rev. 887, 907-17 (2000).

21

bar, it is urged that a superseding cause instruction had the

effect, contra Edmonds, of placing the burden of a non-negligent

longshoreman’s injury on the longshoreman himself. The legal

problem presented by this case is thus as follows. The Supreme

Court in Edmonds explained that when a longshoreman is

injured by the concurrent negligence of a shipowner and a

stevedore, the shipowner is liable for the full damages.6 The

Supreme Court in Sofec held that superseding cause remains a

viable analytical category in maritime cases. Superseding cause

instructions, then, may be given in maritime cases. Does it

follow that they must be given? And do LHWCA cases require

heightened vigilance because of the congressional cost-

allocation scheme we are bound to implement? On these

questions Sofec is silent, and today we answer them “no” and

“yes.” If we permit superseding cause instructions to be given

in LHWCA cases such that ordinary stevedore negligence could

operate to cut off the liability of concurrently negligent

shipowners, we will eviscerate the liability-attribution

6

Under the LHWCA, if a stevedore has paid statutory

compensation to an injured longshoreman, then the stevedore

has lien rights on the longshoreman’s tort recovery from the ship

(or compensation under other statutes) in the amount of the

statutory compensation the stevedore has paid to the

longshoreman. See Edmonds, 443 U.S. at 269; 33 U.S.C.

§§ 903(e), 933(f).

22

framework Congress created in 1972. To avoid this result we

must closely scrutinize the evidentiary basis for the instruction.7

7

We cannot agree with our concurring colleague that the

foregoing discussion of the theoretical difficulties engendered

by superseding cause in a world of comparative negligence is

“misplaced,” and “has no place in the fact pattern before us.”

Judge Rendell argues that comparative negligence is an apple to

the orange of LHWCA liability in general, and this case in

particular, because there is no claim that Hill himself was

negligent. But we think the fruits hang from the same analytical

tree. Just as state legislatures have determined that negligent

defendants who injure concurrently negligent plaintiffs must still

pay, so too has Congress determined that negligent ships that

injure longshoremen whose colleagues or employer were

concurrently negligent must still pay. Because it made

stevedoring companies statutorily immune from suit, Congress

chose to apportion the companies’ share of longshoremen’s

damages to the shipowners. Thus the ship pays for its own and

the stevedore’s share of a longshoreman’s injuries, and the

longshoreman absorbs only the share caused by his own

negligence.

The application of superseding cause doctrine in this

situation has precisely the same effect on the plaintiff as it does

when applied in ordinary two-party comparative negligence

cases. From the longshoreman’s perspective, the litigation field

is the same: there is one party that can be sued, and, if negligent,

that party is liable for all of the longshoreman’s injuries save

those he caused himself. Congress has considered in detail the

relationships among the parties, and provided that the

23

C.

The Sofec Court did not address, or even cite, Edmonds.

Its analysis of the compatibility of superseding cause with

maritime precedent was restricted to Reliable Transfer and the

advent of comparative fault in maritime law. Perhaps because

Sofec was not a LHWCA case, the Court did not see a need to

consider the effect of its ruling on Edmonds and the LHWCA.

Whatever the Court’s reasons, we are unwilling to interpret

Sofec’s silence in such a way as to contravene Edmonds.

First, Sofec held only that “there is [no] repugnancy

between the superseding cause doctrine, which is one facet of

the proximate causation requirement, and a comparative fault

method of allocating damages.” 517 U.S. at 838. Neither

Edmonds nor this case involves comparative fault. See

negligence of fellow longshoremen does not absolve the ship of

liability. Superseding cause promiscuously invoked can

undermine this legislative scheme just as surely as it can

undermine ordinary comparative negligence. The “heightened

vigilance” of superseding cause instructions we will require in

such cases is necessary to ensure that the remedial scheme

created by LHWCA is not undermined by instructions which

allow ordinary longshoreman negligence to absolve ships of

liability. Our goal, and our duty, is to enforce Congressional

liability attribution schemes for accidents. “The oranges before

us” therefore include all such statutory schemes, and

superseding cause can be a frost which bodes ill for their

harvest.

24

Edmonds, 443 U.S. at 273 n.30 (“Further, the stevedore is not a

party here and cannot be made a party, so [Reliable Transfer] is

inapplicable.”). Second, the introduction of comparative fault

to maritime law in Reliable Transfer was a judge-made

innovation; by contrast, the LHWCA is a statute. Sofec does not

therefore foreclose the possibility – though we do not decide the

question here – that superseding cause per se may be doctrinally

incompatible with the LHWCA as adumbrated in Edmonds.

Third, the issue decided in Sofec was “whether a plaintiff in

admiralty that is the superseding and thus the sole proximate

cause of its own injury can recover part of its damages from

[other cause-in-fact] tortfeasors.” Id. at 840 (emphasis added).

Hill was not a cause of his own injury in any way. Whether this

difference in equities amounts to a distinction in law is also,

fortunately, not something we need to decide in this case.

Finally, Sofec involved plainly extraordinary facts quite

unlike those at issue here. The defendant in Sofec was the

manufacturer of a mooring system used for transferring oil from

a tanker into a pipeline. The line securing the tanker to the

pipeline broke in a storm as the ship was off-loading its cargo of

oil. The defendant’s alleged negligence went only to the design

of the mooring line. However, the line’s breaking did not

damage the ship; instead it required the ship to maneuver and

get to a safe position. The ship did maneuver and get to a safe

position. After having reached safety, however, and several

hours after the line broke, the captain decided to turn back

toward shore. The captain had neglected, however, to have the

ship’s position fixed during the maneuvering, which he could

easily have done and should have done. The ship ran aground

and was damaged. The district court found that turning toward

25

shore without knowing the ship’s position was a highly

extraordinary act, and that it was not a consequence of the

mooring line breaking. The normal routine during any

maneuvering is for the captain to have the ship’s position

continually plotted, and despite the attention given over to

repairing the mooring line and fuel hoses, there were crew

members available to do the plotting. Thus Sofec presents a

clear case of superseding causation. See Sofec, 517 U.S. at 833-

35. The case at bar, as we will explain, does not.

D.

Absent any discussion of Edmonds in Sofec, we must

assume that the two cases are reconcilable. And if Sofec did not

overrule Edmonds, then Edmonds and not Sofec is the

controlling case on LHWCA liability. Edmonds holds

unambiguously that where both the shipowner and the stevedore

are negligent, the shipowner is liable for the full award. To be

sure, if a superseding cause intervenes between the ship’s

negligence and the longshoreman’s injury, then the ship is not

liable at all, because it is not a proximate cause of the injury.

The devil, here as always, is in the details: when can a fellow

longshoreman’s action constitute a superseding cause?

Commentators have long warned about the dangers – in

maritime as well as in tort law generally – of what Hill suggests

happened here: that a superseding cause instruction might invite

a finding of no liability on facts which would otherwise be

straightforwardly amenable to either sole liability for

concurrently caused injuries, or to comparative negligence

26

analysis.8 This danger is particularly acute in LHWCA cases,

because Congress has specifically provided for shipowner

liability in cases of concurrent shipowner and stevedore

negligence. Courts must be vigilant, therefore, when crafting

jury instructions, to ensure that they do not undermine the

governing statutory scheme.

The Restatement (Second) of Torts § 442 suggests six

factors by which superseding causal acts can be picked out

against the causal background. Relevant here are the first three:9

(a) whether the act brings about a harm different from the harm

that the defendant’s negligence would have caused; (b) whether

the act is “extraordinary” rather than “normal” under the

8

See, e.g., William R. Corbett, Two Old Torts Looking for

a New Career, 33 Ariz. St. L.J. 985, 1020-1021 (2001); Paul T.

Hayden, Butterfield Rides Again: Plaintiff’s Negligence as

Superseding or Sole Proximate Cause in Systems of Pure

Comparative Responsibility, 33 Loy. L.A. L. Rev. 887 (2000);

John G. Phillips, The Sole Proximate Cause “Defense”: A Misfit

in the World of Contribution and Comparative Negligence, 22

S. Il. U. L.J. 1 (1997); William Powers, Jr., Some Pitfalls of

Federal Tort Reform Legislation, 38 Ariz. L. Rev. 909, 914

(1996); Terry Christlieb, Why Superseding Cause Should Be

Abandoned, 72 Tex. L. Rev 161 (1993).

9

The other three factors distinguish between natural and

human actions, and intentional and negligent conduct.

Negligent acts are further treated at § 447, discussed infra.

27

circumstances; and (c) whether the act is independent of any

situation created by the defendant’s negligence.

We can certainly imagine cases in which the actions of a

fellow longshoreman could constitute a superseding cause so as

to insulate a concurrently negligent ship from liability. For

instance, if Jones had pulled out a gun and shot at Hill in an

attempt to kill him, but missed, hitting an improperly secured

lashing rod instead, causing it to break free and strike Hill, a

superseding cause instruction would be appropriate. The

obvious and extreme case of an intentional tort, though, sheds

little light on the problem at hand. Moving closer to the instant

facts, if Jones had attempted a radical and untried unfreezing

technique, applying, say, a blowtorch or a chainsaw to the wing

nut, we would probably see no error in a superseding cause

instruction.

What distinction between such a case and ours? The test

is whether the unfreezing method employed by the

longshoreman was an “extraordinary” one. Upon this concept

rests the validity of the instruction. An extraordinary act is one

which is not done in the normal course of events. An

extraordinary method of unfreezing a turnbuckle is one to which

longshoremen do not ordinarily resort when faced with frozen

turnbuckles. “Ordinarily” means regularly; as a matter of habit,

custom, usual practice; everyday. The Restatement factors

highlight the importance of the “everyday course of events” as

a baseline for evaluating the defendant’s negligence. If

subsequent third-party acts are carried out in the way they

normally are, then the harm caused by the combination of the

third-party acts and the defendant’s negligence is not different

28

in kind from the harm that the defendant’s negligence “on its

own” caused, because “on its own” includes the “everyday

course of events” in which the defendant’s negligence is

situated. Likewise with the second and third factors: to

determine whether an act is “extraordinary” rather than

“normal,” we ask what the usual practices are in the contextual

environment at issue, and to determine whether the effects of the

third-party cause are “independent” of the defendant’s

negligence, we ask whether the defendant’s act was likely, in the

ordinary course of events in that particular context, to lead to the

third-party act.

In this case, the defendant’s alleged negligence was in the

maintenance and inspection of the lashing rod. Negligent

maintenance and inspection of the lashing rods can cause injury

to the longshoremen who must work with them at unloading,

leading to precisely the sort of accident that happened here.

Jones’s act was precipitated by the bolt’s being frozen in place,

which was a likely, ordinary, and foreseeable consequence of its

being misaligned, uninspected, and poorly maintained.

The Restatement further specifies several circumstances

in which a subsequent third-party act is not a superseding cause,

even if negligent.

The fact that an intervening act of a third person

is negligent in itself or is done in a negligent

manner does not make it a superseding cause of

harm to another which the actor’s negligent

conduct is a substantial factor in bringing about,

if

29

(a) the actor at the time of his negligent conduct

should have realized that a third person might so

act, or

(b) a reasonable man knowing the situation

existing when the act of the third person was done

would not regard it as highly extraordinary that

the third person had so acted, or

(c) the intervening act is a normal consequence of

a situation created by the actor’s conduct and the

manner in which it is done is not extraordinarily

negligent.

Restatement (Second) of Torts, § 447. In this case Hill argued

that because longshoremen customarily hit stuck wing nuts with

their wrenches, the shipowner should have realized that that

might occur; that a reasonable person would not think it

extraordinary for a longshoreman to hit a stuck wing nut, and

that Jones’s hitting the wing nut was a direct and normal

consequences of the ship’s alleged negligence in maintaining

and inspecting the turnbuckle.

To determine whether Jones’s act could, as a matter of

law, have been found to be a superseding cause on the record

before us, we must determine what that record discloses about

the ordinary practices of longshoremen. The superseding cause

instruction will be upheld only if the record contains evidence

from which a reasonable jury might conclude that it would have

been extraordinary for a longshoreman in Jones’s position to

strike the wing nut with his wrench.

30

E.

Every witness who spoke on the subject testified that

hitting frozen wing nuts to unstick them is common

longshoremen’s practice. App. 66 (testimony of Jones); App.

166 (testimony of Hill);10 App. 315 (testimony of defense

witness Vagn Ejsing).11 The shipowners put on no rebuttal

witness. Even the defense’s expert, Walter Curran, when asked

to describe typical unloading practices, testified that when

lashing bolts are stuck, “hitting the locking nut with the spanner

wrench is actually quite common.” 12

10

“-And I believe you testified at your deposition that it

wasn’t-- that turnbuckles are tight and they’re supposed to be

tight and it’s not unusual that you might have to hit them with a

wrench? -Well, that’s normal. You know, if it’s too tight, you

hit it.” App. 66.

11

“-Are longshoremen, if they encounter a turnbuckle

that’s hard to turn, supposed to strike it with the turnbuckle

wrench? -Yeah, that’s a common thing, if you have a nut that is

tight, that’s really set tight and you can’t get it to turn with a

wrench. If you tap it with a hammer or hit it with an instrument,

you may be able to loose[n] it enough that it will turn.” App.

315.

12

Curran had earlier testified that Jones “should not have

just whacked it,” App. 365, in response to questioning about

whether Jones should have warned Hill or contacted a

supervisor before hitting the bolt. This statement obviously does

31

Jones’s description of the customary practice was as

follows.

-Okay, on the Philadelphia waterfront for as long

as you’ve been working there, what has been the

custom and practice for dealing with a frozen

turnbuckle?

-You try it with your wrench first and you try to

break it. If not, then you bang it. Again, you’re

gonna – trying to bang it in the direction to make

it turn – in the direction you want it to go to turn,

that’s the direction you hit it in.

-And what has been the custom and practice on

the Philadelphia waterfront with respect to

reporting a frozen turnbuckle to a hatch boss.

-Well, again, I’m a hatch boss and if someone did

that to me, they came back – that’s let me know

that they don’t know what they’re doing. So I’m

probably not gonna hire this guy again. If there is

any way I can get around hiring this guy, I will.

That’s a simple problem, no one I’ve ever seen

has come back to any hatch boss – including me

– and said, I’ve got a frozen turnbuckle, I can’t –

you’d probably get fired. I would have gotten

fired that night.

not bear on what the customary practices were.

32

App. 66.

On cross-examination, Jones was asked why he didn’t

warn Hill before striking the wing nut:

-Was there anything preventing you, when you

saw the turnbuckle frozen, from walking four

containers and saying, Neal, I’ve got a problem

here? Neal I’m gonna whack the turnbuckle, look

out?

-No, again–

-Was there anything that stopped you from doing

that?

-There was nothing that stopped me from doing

that, other than the same practice that I’ve done

every other time.

App. 102.

The testimony, in sum, from both the plaintiff’s and the

defendants’ witnesses, was that longshoremen commonly and

ordinarily bang stuck wing nuts with their wrenches in order to

loosen them. There was no testimony offered at any point by

any witness indicating that banging stuck wing nuts was

anything other than the common and ordinary practice of

longshoremen.

33

If superseding cause can be legally found on these facts,

then the distinction between concurrent negligence and

superseding cause will have evaporated, and Congress’s

carefully planned cost-allocation scheme will have been

upended, in contravention of Edmonds.

F.

Further, the superseding cause instruction here was

capable of confusing and misleading the jury.13 The jury form

asked, first, whether each defendant was negligent, and the jury

answered “no.” The second question, to be answered only if

either defendant was found negligent, read: “If so, did the

negligence, in whole or in part, cause any injury or damage to

plaintiff Cornelius Hill?” The District Court held, and the ship

urges on appeal, that this verdict cures any possible error in the

superseding cause instruction. We do not agree.

13

We note that the Pennsylvania Suggested Standard Civil

Jury Instructions recommend that “[n]o instruction should be

given” on superseding cause; the committee notes explain that

the instruction “will only serve to confuse the jury,” and observe

that because “it is the exclusive function of the court to declare

the existence or non-existence of rules which restrict the actor’s

responsibility . . . and to determine the circumstances to which

such rules are applicable . . . instructions placing the

responsibility for these decisions on the jury may well be

reversible.” Pa. Suggested Standard Jury Instructions (Civil)

3:28.

34

The instruction stated: “[Y]ou may also find that an act

of a third party caused the accident and superseded all other

causes. Generally this means that the act of a third party was so

unexpected and out of the ordinary, that it supersedes any

negligent act or acts that may have come before it.” App. 442.

The jury returned a finding of “no negligence.” It is possible, of

course, that that finding was independent of any evaluation of

Jones’ act as a superseding cause. But that possibility is too

speculative to support a harmless error determination, given the

degree to which the defense’s case focused on Jones. We think

it amply possible that the jury focused on Jones, too, and

interpreted the instruction as requiring a finding of “no

negligence” for the ship if the jury found that both Jones and the

ship were negligent.14

14

We are cognizant of the general and necessary

presumption that juries follow instructions. We are not

persuaded, however, that the presumption can be

straightforwardly applied to the instruction here. The cases

reciting the presumption are virtually all criminal cases, and the

instruction in question is usually to disregard some piece of

evidence, or to consider a piece of evidence for a limited

purpose only, or to consider a defendant’s confession only

against him and not his codefendant. See, e.g., Francis v.

Franklin, 471 U.S. 307, 324 (1985); United States v. Urban, 404

F.3d 754, 776 (3d Cir. 2005); United States v. Davis, 397 F.3d

173, 181 (3d Cir. 2005). The presumption in such cases goes to

a jury’s good faith. There is no question that jurors understand

what “Ignore the defendant’s confession” means; the problem is

that doing so is very difficult. The presumption means that we

35

For purposes of harmless error analysis, therefore, we ask

whether it is highly probable that the error did not affect the

result, which means, in this case, whether there is a reasonable

possibility that the jury interpreted the instruction to mean that

Jones’s negligence wiped out the ship’s negligence so that

Question One should be answered “no.” We think there is.

After all, one of the ordinary meanings of “supersede” is “to

make void, to annul.” Webster’s Third, at 2295. We think it too

much to insist on the presumption that the jury understood that

if both Jones and the ship were negligent, and it found Jones to

be a superseding cause, the ship’s negligence would still be

negligence (“yes” to Question One) but would no longer be a

legally operative cause of Hill’s injuries (“no” to Question

Two). We think it just as likely that the jury understood the

words “supersede any negligent act that came before it” to mean

that they could find that Jones’s act “voided” and “annulled” the

ship’s negligence, thus yielding the form they in fact returned

(“no” to Question One). We do not think it “highly probable”

that the form does not express a superseding cause finding.

consider the jurors to have made the effort, absent evidence to

the contrary, and that we consider that effort to satisfy the

demands of due process. Courts should not, nor do we here,

assume that juries consciously disregard the agreed-upon import

of their instructions.

But understanding a given instruction is a very different

matter. We presume that juries are men and women of good

faith, but we have no guiding presumption that juries understand

inherently confusing tort doctrines.

36

Therefore the form does not render the error in the instruction

harmless.

The likelihood that the jury may have adopted the

interpretation suggested above is heightened by the absence of

any evidence of the “extraordinariness” of Jones’ act. That

absence is complete, and therefore, as to superseding cause, Hill

is entitled to judgment as a matter of law on this record, because

viewing the evidence in the light most favorable to the ship, and

giving the ship the advantage of every fair and reasonable

inference, there is insufficient evidence from which a jury could

reasonably find” superseding cause. See Wittekamp v. Gulf &

W., Inc., 991 F.2d 1137, 1141 (3d Cir. 1993).

No witnesses suggested that what Jones did was

“extraordinary”; Jones and Hill for the plaintiff, and Vagn

Ejsing and Curran for the defense, all testified only that it was

common for longshoremen to strike tight wing nuts to loosen

them. Curran did give testimony critical of Jones, but at best it

can be taken to indicate only negligence, not extraordinariness.15

15

We note that on cross Curran was asked, with respect

to longshoremen and tight turnbuckles, “Didn’t they also hit it,

Mr. Curran?” to which Curran replied, “No. I’ve actually never

seen anyone hit the turnbuckle, itself.” But he continued: “I’ve

seen many people, and I did it myself, hit the lock nut, the wing

nut on it to loosen that part, yes.” App. 393. Even Curran’s

“alternative” scenario, in which Jones partially loosened the

turnbuckle before striking the wing nut, and failed to hold onto

the rod, is described by Curran simply as “careless,” never as

37

Curran was asked on direct “what if anything [Jones] should []

have done as a prudent longshoreman,” and he replied: “He

should have called the supervisor.” App. 365. But third-party

negligence does not wipe out defendants’ liability in maritime

law. If we allowed the instruction on these facts, then regardless

of labels, we risk allowing that result.

We assume, though we do not decide, that a reasonable

jury could have found that Jones (and thus the stevedore through

respondeat superior) was negligent. If, however, the

superseding cause instruction was interpreted by the jury to

mean that the shipowner was thereby relieved of liability as a

matter of law, the result would be directly contrary to the

LHWCA and Edmonds. Because of the danger that ordinary

stevedore negligence might be inferred to cut off shipowner

liability entirely, courts must be wary of giving superseding

cause instructions, and should do so, if at all, only when there is

an adequate evidentiary basis. In this case, there was none.

The District Court correctly instructed the jury that

superseding cause is a defense to a negligence claim that could

otherwise be made out: “And bear in mind that although

generally in this case, the plaintiff has the burden of proof by a

“extraordinary” or even “unusual.” App. 373. In his written

report, Curran likewise described this scenario as “a self-

inflicted situation borne of carelessness on the part of the

longshoremen,” App. 461, and implied that it is relatively

common, stating that it “will occur regardless of how well the

turnbuckle has been greased and maintained.” Id.

38

preponderance of the evidence, in terms of this superseding

cause, the defendant has the burden of proof by a preponderance

of the evidence.” App. 442. To support the superseding cause

instruction, accordingly, the defendants needed to have put on

at least some evidence of all of the following: (1) they did not

in fact know that longshoremen hit the wing nuts with wrenches,

(2) they had no reason to know that longshoremen might hit the

wing nuts with wrenches, (3) it was highly extraordinary for

longshoremen to hit the wing with wrenches, and (4) Jones’

hitting the wing nut with the wrench was not the consequence of

any act or failure to act by the shipowners. See App. 442

(instruction); Restatement (Second) § 447. The record, as

described above, simply cannot support any of these

propositions.16

16

As to (2), (3), and (4), there is absolutely no possible

factual support in the record. As to (1), only one witness,

Captain Schuessler, the ship’s captain, had any knowledge about

what the ship’s crew in fact knew or did not know, and he never

stated that he or his officers were unfamiliar with unloading

practices. In fact, Captain Schuessler testified that supervising

the loading and unloading of cargo is a core duty of the officers.

App. 297-98 (“-Then, when the chief mate is supervising the

loading or the discharging, he sees to it that that’s carried out

properly on the ship that he’s working on, is that correct?

-According to the loading and discharging, yes.”). Captain

Schuessler goes into even more detail when asked about the

loading process: “-The chief mate explains the arrangement,

how to do it. The stevedore informs the longshoremen where

they have to do it and after all the lashing has been done

39

Trial courts must carefully circumscribe their instructions

to the jury, because while the jury is the factfinder, the range of

facts capable of being found in a given case is a question of law.

We will vacate a jury verdict if, “viewing the evidence in the

light most favorable to the nonmovant and giving it the

advantage of every fair and reasonable inference, there is

insufficient evidence from which a jury reasonably” could have

reached the result it did. Lightning Lube v. Witco Corp., 4 F.3d

1153, 1166 (3d Cir. 1993). Sofec’s holding that superseding

cause is a viable maritime category does not relieve the courts

of our responsibility to ensure that the instruction is only given

where the record evidence is sufficient to reasonably support a

according to arrangement, the chief mate is controlling if they

have done it correct. . . . -And he’s got to look at every single

lashing bar and every single turnbuckle in order to make certain

that the stow is secured properly, isn’t that correct? -That is

correct. -And if a lashing rod is not seated properly or if it is not

connected to the turnbuckle properly, what does the chief mate’s

responsibilities require him to do? -He is going to the lashing

foreman and complaining to re-tighten it or to re-lash it or

whatever.” App. 299-300.

Given this testimony, it might still be within the realm of

possibility (though we are dubious) that the officers could carry

out their inspections only before and after the longshoremen do

their work, and thus never actually observe the longshoremen’s

interactions with the lashing assemblies. But such speculation

is irrelevant, because the only witness in this case with the

relevant knowledge said nothing of the kind.

40

superseding cause finding. The evidence here could not support

the finding, so the charge should not have been given.

We do not hold that on this record a properly instructed

jury could not reasonably have found that the ship was not

negligent. Rather, we hold that such a finding cannot legally

have been grounded in superseding cause in this case. A

superseding cause instruction will be permissible on remand

only if evidence is presented showing that Jones’s actions were

outside the normal range of customary longshoremen’s

practices. Because there was no evidentiary basis for a

superseding cause finding, the District Court erred in giving a

superseding cause instruction.

IV.

The final two issues before us are the District Court’s

admission of certain testimony of the defense’s expert over

Hill’s objection of unfair surprise, and its denial of Hill’s

request for a res ipsa loquitur instruction. We find no error in

either ruling.

A.

Hill contends that he was unfairly surprised when the

defendant’s expert, Walter Curran, testified that the accident

could not have happened as Jones described it in his testimony.

Defense counsel asked Curran to opine on whether, if Jones had

struck a frozen wing nut with a wrench, the lashing rod could

have sprung out and flown across the hold. App. 370. Curran

responded that such a scenario was “physically impossible,” and

41

that in his opinion, in order for a lashing rod to spring out of its

housing, the turnbuckle would have to be partially loosened

before being struck with the wrench. App. 373-74. Curran

therefore hypothesized that Jones had partially loosened the

turnbuckle, but had attempted to remove the lashing rod before

the turnbuckle was fully loose, causing the bar to flex “like a

spring.” “When you give it a whack under those

circumstances,” Curran testified, “it could very well spring

free.” Hill argues that that opinion – that Jones must have

partially loosened the bar before striking the bolt – was not in

Curran’s report.

Curran’s report states his opinion “that the turnbuckle in

question was not ‘frozen’ due to rust as alleged.” App. 461.

The report then proposes an alternative scenario in which

turnbuckles can become frozen – the very alternative scenario

Curran described at trial: “[I]f the longshoremen attempt to

loosen the turnbuckle without first backing off the wing nut the

turnbuckle can get ‘bound up.’ This is a self-inflicted situation

borne of carelessness on the part of the longshoremen.” App.

461. The report thus says what Curran said at trial: that the

accident was likely precipitated by Jones’s failure to fully loosen

the turnbuckle before attempting to remove the lashing rod.

The report, to be sure, does not contain the other opinion

Curran offered at trial: that it is “physically impossible” for a

lashing rod to spring free without being first partially loosened.

To that extent, then, Curran’s trial testimony exceeded the scope

of his report. But the permissible scope of expert testimony is

quite broad, and District Courts are vested with broad discretion

in making admissibility determinations. The District Court

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notes that “Plaintiffs do not cite, and the Court is not aware of,

any bright line rule that every opinion by an expert must be

preliminarily stated in the report, or forever be precluded.” App.

24. This Court is similarly unaware of such a rule. Cf.

Weinstein’s Federal Evidence § 403.02[4][a] (2d ed. 2005)

(“Some members of the bar would have preferred to add

surprise to Rule 403, but the Advisory Committee rejected this

suggestion. The modern shift in attitude does not require the

recognition of surprise, standing alone, as a ground for

exclusion.”) (internal citation omitted).

Furthermore, Curran’s testimony was elicited in rebuttal

of Jones’s account of the accident. Curran was asked his

opinion of the likelihood of the sequence of events Jones had

described in his testimony. Such a rebuttal is thoroughly in

accord with Federal Rule of Evidence 703, which provides that

“[t]he facts or data in the particular case upon which an expert

bases an opinion or inference may be those perceived by or

made known to the expert at or before the hearing.” The

Advisory Committee’s Note on the rule states that the rule

intends to “reflect[] [the] existing practice . . . [of] having the

expert attend the trial and hear the testimony establishing the

facts.” We can discern no error in admitting expert opinion

offered in response to prior trial testimony. Furthermore,

whatever surprise there might have been was adequately cured

by Hill’s extensive cross-examination of Curran. And if cross-

examination was insufficient, then rather than resting on an

objection, a better procedure would be to request a sidebar on

the issue of surprise, and even a recess to investigate the new

evidence. See Johnson v. H.K. Webster, Inc., 775 F.2d 1, 8 (1st

Cir. 1985) (“Courts have looked with disfavor upon parties who

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claim surprise and prejudice but who do not ask for a recess so

they may attempt to counter the opponent’s testimony.”). Where

surprise has occurred, the appropriate action remains within the

trial court’s discretion, informed by the following factors:

“(1) the prejudice or surprise in fact to the opposing party,

(2) the ability of the party to cure the prejudice, (3) the extent of

disruption of the orderly and efficient trial of the case, and

(4) the bad faith or willfulness of the non-compliance.” Hurley

v. Atlantic City Police Dept., 174 F.3d 95, 113 (3d Cir. 1999)

(citations and quotations omitted).

B.

Finally, we can find no error in the District Court’s denial

of Hill’s request for a res ipsa loquitur instruction. A res ipsa

loquitur instruction will be justified if the plaintiff can show,

inter alia, that “other responsible causes, including the conduct

of the plaintiff and third persons, are sufficiently eliminated by

the evidence.” Restatement (Second) of Torts § 328. The

parties in this case agree that the lashing rod sprang free when

Jones hit the wing nut with his wrench. They thus agree that

Jones’ act was a proximate cause of the accident. It is therefore

a question of fact whether Jones’s act could have been the cause

of the accident even without any negligence by the ship. The

District Court was therefore correct not to charge res ipsa

loquitur.17

17

The District Court’s memorandum opinion might be

read to suggest that res ispa instructions are inapplicable as a

matter of law in LHWCA cases. We are doubtful that this is the

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V.

Having determined that the jury instructions given by the

District Court were erroneous in the respects explained above,

and that Hill was prejudiced by these errors, we will vacate the

District Court’s order, and remand for a new trial.

case, but need not resolve the question here, because res ipsa is

not warranted on the facts of this case.

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RENDELL, Circuit Judge, concurring.

I agree that this case should be returned to the District

Court for a new trial. But I do so on a very different basis,

namely because the defendants’ expert’s opinion at trial that the

accident could not have happened as Jones testified, and was

“physically impossible,” was radically different from the

opinion that he rendered in his pre-trial report. I do not agree

that the superseding cause instruction forms an appropriate basis

for reversal.

I.

I disagree with the majority’s exploration of the

theoretical difficulty with the use of superseding cause

instructions in a comparative negligence scheme as misplaced

and unnecessary. It is misplaced because the use of such

instructions has been criticized where they can operate to

absolve a defendant from liability based on the plaintiff’s own

negligence, and thus re-introduce principles of contributory

negligence into a comparative fault system. In such situations,

the application of the superseding cause doctrine arguably gives

defendants a windfall where they would have been liable, at

least in part, on the basis of comparative fault. Here there is no

allegation that Hill was negligent; the only issue is the extent of

the negligence of a third party, Jones, and its effect on the

negligence and liability of the shipowner defendants. I suggest

that the concept of “heightened vigilance” in giving superseding

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cause instructions that the majority announces has no place in

the fact pattern before us. Rather, it should be reserved for those

situations where the instruction would operate like contributory

negligence, inequitably denying plaintiff any recovery on the

basis of his own negligence. Since that is not at issue here, the

concern expressed, and rule announced, by the majority is like

apples to the oranges before us and should be left for another

day and another case.18

Furthermore, the entire discussion of superseding cause

is unnecessary because the jury found that neither defendant was

negligent. The majority assumes that the jury might have been

saying on the verdict slip, when marking “no” to the questions

“Was Defendant Schiffahrtsgesellschaft MS Priwall mbH & Co.

KG, the owner of the MS Sea Panther, negligent?” and “Was

Defendant Reederei F. Laiesz G.m.b.h., Rostock, the operator of

18

The majority’s suspicion of superseding cause as a

“frost” on the LHWCA, see Maj. Op. at 23 n.7, seems to me to

be based on an assumption that these instructions will not be

properly employed. See, e.g., id. at 35 n.14. But if properly

employed, without “heightened vigilance,” a finding of

superseding cause will mean that the conduct of the shipowner

did not cause the harm, because the superseding cause of the

third party’s conduct provided the overriding causation. In such

event, the shipowner should be absolved of liability. If that is

not permissible, we should ban the concept altogether, rather

than applying it with “heightened vigilance.”

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the MS Sea Panther, negligent?” that the defendants were

negligent but that their negligence was not the cause of Hill’s

injuries. I find this uncalled for, as we presume that juries

follow instructions, see Citizens Fin. Group, Inc. v. Citizens Nat.

Bank of Evans City, 383 F.3d 110, 133 (3d Cir. 2004), and the

instructions given by the District Court made it clear that

superseding cause operates to absolve an otherwise negligent

defendant from liability, not to require a finding of no

negligence before the issue of causation is addressed.19

In addition, in light of the second question on the verdict

form, we need not speculate that the jury might have found the

defendants not negligent when what they really meant was that

their negligence was not a legal cause of Hill’s injury. That

question asked specifically whether, if one or both of the

defendants was negligent, “that negligence, in whole or in part,

cause[d] any injury and damage to Plaintiff Cornelius Hill.”

Had the jury really concluded, based on a theory of superseding

cause, that the defendants were negligent but that their

19

Judge Baylson instructed the jury that “[g]enerally,

[superseding cause] means that the act of a third-party was so

unexpected and out of the ordinary that it supersedes any

negligence act or acts [sic] that may have come before it,” and,

“[i]f you find that there is such a superseding cause, any and all

negligent acts or omissions that occurred prior to a superseding

cause are not considered a legal cause of the harm to the

plaintiff.” (emphasis added).

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negligence was not the cause of Hill’s injury, the jury form

provided it with a way of saying so. Because it did not, we

should assume that the jury’s verdict means what it says–that the

jury found that neither of the defendants was negligent. The

issue of the propriety of a causation instruction is not relevant,

as any error in giving it was harmless.

II.

My difficulty with allowing Mr. Curran’s opinion given

at trial is that it clearly surprised the plaintiffs and materially

prejudiced them with respect to the crucial question in the case

in a way that was impossible to cure through cross examination.

Although a district court retains discretion to determine whether

expert testimony should be excluded when it exceeds the scope

of the pretrial report, its discretion is not unfettered. We apply

a multi-factor test in determining whether a district court has

abused this discretion, considering (1) the prejudice or surprise

to the party against whom the witness testifies; (2) the ability of

the opposing party to cure any such prejudice; (3) the effect of

allowing or excluding testimony on the trial of the case; (4) any

bad faith or wilfulness involved in the presentation of such

testimony; and (5) the importance of the testimony to be

excluded or omitted to the overall case. Quinn v. Consol.

Freightways Corp., 283 F.3d 572, 577 (3d Cir. 2002) (citing

Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d

894, 904-05 (3d Cir. 1977)).

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The expert opinion given at trial altered the defendant’s

theory of the case radically. The expert’s pre-trial opinion was

that Mr. Hill’s injury was caused not by the frozen turnbuckle,

but by Mr. Jones’s negligence in:

1. failing to notify his supervisor of the frozen

turnbuckle;

2. failing to request assistance in freeing the frozen

turnbuckle;

3. striking the turnbuckle with his wrench; and

4. failing to warn Mr. Hill of his intended action.

However, at trial, Curran characterized Jones’s testimony that

the lashing rod came out of its casing when he hit the frozen

turnbuckle with his wrench as “physically impossible.” He

opined that hitting a frozen turnbuckle would not cause anything

to “fly out or budge,” and that the accident could only have

happened once Jones managed to loosen the turnbuckle, when

Jones either failed to “hold the bar the way he should have

done,” or whacked the loosened lashing rod with his wrench, so

that it “act[ed] like a spring and . . . spr[u]ng free with the

bottom coming out first.” Although the expert explained his

new opinion away as just filling in the “details” of his report, it

represented an entirely new and, from the plaintiff’s perspective,

50

unanticipated explanation of the events leading up to Hill’s

injuries.

The cross examination by plaintiff’s counsel, thought by

the District Court to be adequate, could only attack the

difference between the defense expert’s testimony and his pre-

trial report, not the substance of that testimony. Any attempt to

undercut its substance would only have reinforced the expert’s

view that the plaintiff’s theory of how the accident occurred was

“physically impossible.” Surely the jury could not appreciate

how problematic this situation was for plaintiff’s counsel,

caught unawares by an expert’s opinion that totally obliterated

the key assertion of his case, namely, that the turnbuckle’s

rusted and frozen condition caused the plaintiff’s injury.

The District Court erred not only in not seeing the drastic

difference between these two opinions, but also in justifying the

introduction of a new opinion based on the fact that Jones’s

testimony at trial was more comprehensive than at his

deposition. But the fault for failing to adequately depose Jones

lay with the defendants themselves. The proper approach for the

defendants in that situation was not to elicit a new expert

opinion without prior notice, but, rather, to ask for time to

submit a supplemental opinion based on the additional facts

adduced at trial.

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III.

For the foregoing reasons, I conclude that the District

Court abused its discretion in allowing the defense expert to

offer an opinion that was outside the scope of his pre-trial

report. Accordingly, I concur in the majority’s decision to

reverse the judgment below and remand the case for a new trial.

___________________

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