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Precedential or Non-Precedential: Precedential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, 

,
167 (1981); Kirsch v. Prekookeanska Plovibda, 

(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, 

. 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., 

, 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, 

(“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 

, 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].” 

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.

        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 

.

       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.” 

This duty may attach even when there are in fact alternative
courses of conduct available. In 

, 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., 

, 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., 

, 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., 

, 349 (3d Cir. 2005)
(citing McQueeney v. Wilmington Trust Co., 

, 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.

(quoting United States v. Burton,

, 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., 

,
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, 

, 266 (1979). The
concurrent negligence of non-defendants, such as statutorily
immune stevedoring companies, is irrelevant. 

the Supreme Court decided United States v.
Reliable Transfer Co., 

(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. 

        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 

n.1.

                                18
the stevedore and the ship may recover for the entire amount of
his injuries from the ship.” 

. 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. 

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.

        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.” 

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, 

(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, 

. 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, 

, 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, 

. 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, 

. 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 

; 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 

. 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


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.” 

(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 

-
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, 

. Rev. 909, 914
(1996); Terry Christlieb, Why Superseding Cause Should Be
Abandoned, 

. 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.

                               

.

      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, 

, 324 (1985); United States v. Urban, 

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

, 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., 

, 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.” 

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., 

, 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

                                42
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., 

, 8 (1st
Cir. 1985) (“Courts have looked with disfavor upon parties who

                                43
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., 

, 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

                                 44
                               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.

                               45
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

                                46
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., 

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.”

                                47
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, 

, 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).

                                48
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., 

, 577 (3d Cir. 2002) (citing
Meyers v. Pennypack Woods Home Ownership Ass’n, 

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



                                49
       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.




                               51
                             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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