864 F.2d 201 (1st Cir. 1988), 88-1169, Carey v. Bahama Cruise Lines

Docket Nº:88-1169.
Citation:864 F.2d 201
Party Name:Thomas CAREY, et al., Plaintiffs, Appellants, v. BAHAMA CRUISE LINES, Defendant, Appellee.
Case Date:December 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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864 F.2d 201 (1st Cir. 1988)

Thomas CAREY, et al., Plaintiffs, Appellants,


BAHAMA CRUISE LINES, Defendant, Appellee.

No. 88-1169.

United States Court of Appeals, First Circuit

December 20, 1988

Heard Oct. 5, 1988.

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Mark J. Albano, with whom Goldman, Albano, Caruso and Fierberg, P.C. was on brief, for appellants.

Richard B. Kydd, with whom Kneeland, Kydd & Handy, was on brief, for appellee.

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Before BREYER, Circuit Judge, TIMBERS, [*] Senior Circuit Judge, and TORRUELLA, Circuit Judge.

TORRUELLA, Circuit Judge.

The plaintiffs, a married couple, are residents of Massachusetts. On March 27, 1985, they were passengers aboard a cruise ship, the Bermuda Star, that was anchored off the port of Playa del Carmen, Mexico. The vessel is owned and operated by the defendant, a Cayman Islands corporation whose principal place of business is New York, but which also does business in Massachusetts. Because Playa del Carmen is not a deep water port, passengers must be transported ashore by means of a tender. Passengers move between the vessel and the tender on a gangway, which is designed to slide back and forth on the deck of the Bermuda Star to compensate for the difference in effect the waves have on the vessel and the tender. While alighting from the gangway, Barbara Carey was injured when the gangway slid into her foot.

Plaintiffs filed suit in the United States District Court, District of Massachusetts based on diversity of citizenship jurisdiction. Barbara Carey sought damages for personal injuries resulting from defendant's negligence, whereas Thomas Carey sought damages as a result of the loss of his wife's consortium. The case was tried to a jury on September 8, 1987. During the trial, the district court allowed into evidence deposition testimony of some of the defendant's employees, crewmen aboard the Bermuda Star, because he found that they were unavailable to testify at trial. At the end of trial, the jury found that Barbara Carey was entitled to $14,000 in damages, and that Thomas Carey was entitled to $1,000 in damages. In response to the trial court's special questions on comparative negligence, the jury also found that the defendant was 25% negligent, and that Barbara Carey was 75% negligent. The district court thereupon entered judgment for the defendant on Barbara Carey's claim pursuant to the Massachusetts comparative negligence rule that precludes recovery when a plaintiff is more than 50% negligent. The judgment for Thomas Carey was allowed to stand. He was also awarded $205.44 of prejudgment interest.

Plaintiffs moved for a new trial on the grounds that the trial court committed reversible error in admitting into evidence the deposition testimony of the defendant's employees, and for an amendment of the judgment against Barbara Carey. Both motions were denied by the district court. The plaintiff appeals the denial of these motions. We affirm the district court's denial of the motion for a new trial, but reverse its denial of the motion to amend judgment.


The defendant invites us to affirm the district court's order without reaching the merits, on a procedural ground rejected by the district court. 1 The defendant urged the district court not to consider plaintiffs' motions because they were not filed in accordance with Local Rule 17(a)(1) of the District of Massachusetts, which requires every Motion to be accompanied by a memorandum of law. The plaintiffs initially filed only a motion; it was later supplemented by a memorandum of law. The district court excused this violation because plaintiffs met the time limitations under Federal Rule of Civil Procedure 59, which describes how to amend a judgment and how to request a new trial. See Memorandum of Nov. 30, 1987, at 2 n. 1. Decisions with respect to extending the time to appeal are normally reversed only if they amount to an abuse of discretion. See 9

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Moore's Federal Practice p 204.13; cf. CIA. Petrolera Caribe, Inc. v. Arco Caribbean Inc., 754 F.2d 404, 410 (1st Cir.1985) (stating that district court's refusal to accept late affidavit is reviewable only for abuse of discretion). Because we can not say that the district court abused its discretion, we reject the defendant's argument.


Turning to the merits, we first consider the evidentiary issue, keeping in mind that an order denying a motion for a new trial will not be reversed unless the trial court abused its discretion. See Cazzola v. Codman & Shurtleff, Inc., 751 F.2d 53, 54 (1st Cir.1984). The district court did not specify the basis on which he admitted the deposition testimony of the Bermuda Star's crewmen into evidence. We conclude that this hearsay evidence was admissible under Federal Rule of Civil Procedure 32, Use of Depositions in Court Proceedings, which creates an independent exception to the hearsay rule. See United States v. International Business Machines Corp., 90 F.R.D. 377, 384 (S.D.N.Y.1981); C. Wright & A. Miller, 8 Federal Practice and Procedure Sec. 2143, at 452-53 & n. 25. Subparagraph (a)(3) of Rule 32 provides, in pertinent part, that

The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: ... (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition.

It is undisputed that the witnesses in question were at sea, more than 100 miles from the place of trial. 2 Consequently, the plaintiffs' only argument is that the absence of the witnesses was procured by the defendant. However, the plaintiffs have offered absolutely no evidence to support the allegation that the Bahama Cruise Lines "actively took steps to keep the deponents from setting foot in the courtroom." Houser v. Snap-On Tools Corp., 202 F.Supp. 181, 189 (D.Md.1962). Under the case law interpreting Rule 32, the mere fact that the deponents are employed by the defendant and that there is an identity of interest between the deponents and their employer is not enough to trigger exclusion because "procuring absence and doing nothing to facilitate presence are quite different things." Id.; accord Nash v. Heckler, 108 F.R.D. 376, 377-78 (W.D.N.Y.1985) (stating that, notwithstanding the preference for live testimony, "such exceptions should be allowed to apply absent some compelling reason"); see also Richmond v. Brooks, 227 F.2d 490, 493 (2d Cir.1955) (permitting party who was more than 100 miles from trial venue to offer her own deposition as her sole proof at trial in the absence of proof that she had deliberately avoided the trial).

Even if the deposition testimony was incorrectly admitted into evidence, the plaintiffs have not convinced us that the error was so prejudicial that it mandates a new trial. The fact that the defendants were deposing their own witnesses, who were sailors, indicated that there was a strong likelihood that these depositions would be introduced into evidence. See Nash, 108 F.R.D. at 378. The plaintiffs' attorneys should have realized that these depositions might be used at trial, and framed their questions accordingly. To the extent that they believed it was critical to capture the demeanor and appearance of the witnesses for the jury, they could have videotaped the depositions. See generally F.R.Civ.P. 30(b)(4); Rice's Toyota World, Inc. v. Southeast Toyota Distributors, Inc., 114 F.R.D. 647, 649, 650 (M.D.N.C.1987); 4A Moore's Federal Practice p 30.57[14.2]. Under the circumstances of this case, we are skeptical about the plaintiffs'

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retrospective claims of prejudice, and do not believe that the district court abused its discretion. Accordingly, we affirm its order denying the plaintiffs' motion for a new trial based on the admission of the deposition testimony.


We now turn to the choice-of-law issues. Plaintiffs claim that the judgment should be amended to award Barbara Carey $3,500 because federal maritime law, not Massachusetts law, governs this case. Both parties agree that the only issue affected by this choice is the amount by which the jury's $14,000 award to Barbara Carey should be reduced for her comparative negligence. Both parties also agree that under maritime law, a plaintiff's negligence is considered only in mitigation of damages. See United States v. Reliable Transfer Co., 421 U.S. 397, 407, 95 S.Ct. 1708, 1713, 44 L.Ed.2d 251 (1975); Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 629, 79 S.Ct. 406, 409, 3 L.Ed.2d 550 (1959); see also Austin v. Unarco Industries, Inc., 705 F.2d 1, 5-6 (1st Cir.) (involving a similar claim), cert. dismissed, 463 U.S. 1247, 104 S.Ct. 34, 77 L.Ed.2d 1454 (1983). Thus, both parties agree that under maritime law, because the jury found her 75% negligent, Barbara Carey would be entitled to a judgment of 25% of $14,000, or $3,500. The dispute, therefore, is over the narrow issue of what law should govern the resolution of this case.

The plaintiffs admit that they invoked federal jurisdiction on the basis of diversity of citizenship. They argue, however, that the concept of subject matter jurisdiction should not be confused with substantive law. Because the underlying tort occurred on navigable waters, they claim it was a martime tort. Therefore, they argue, maritime law governs the case even though jurisdiction was obtained through diversity of citizenship. The plaintiffs emphasize that they did not intend to, nor could they, waive what they claim is a constitutional requirement--that maritime law provides the substantive rule of decision in maritime cases.

As a threshold matter, we note that despite the fact that the tort took place in Mexican territorial waters aboard a ship owned by a Cayman Islands corporation, there was no discussion of the relevance of foreign law in the...

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