USCA1 Opinion
May 30, 1995
[NOT FOR PUBLICATION]
United States Court of Appeals
For the First Circuit
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No. 94-2289
PUERTO RICO MARINE MANAGEMENT, INC.,
Plaintiff, Appellee,
v.
EMPRESAS MASSO, ET AL.,
Defendants, Appellants.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Jose A. Hernandez Mayoral with whom Rafael Hernandez Mayoral was
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on brief for appellants.
Carlos J. Quilichini with whom Juan Carlos Gorbea was on brief
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for appellee.
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COFFIN, Senior Circuit Judge. This is an appeal from a
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judgment, following a bench trial, for plaintiff vessel operator,
Puerto Rico Marine Management (PRMMI), in its suit to collect
freight charges for a deficit of cargo placed under a Time Volume
Agreement (TVA) by defendants (collectively, Masso).1 Under the
TVA, covering the period from May 1990 to August 1992, Masso
agreed to ship a minimum of 500 "trailers" annually from
continental United States to Puerto Rico. The complaint alleged
that during this period only 410 shipments were booked; the
deficit was 590. Applying the appropriate tariff of "$250.00 per
container/trailer," the total claimed deficit was $147,500.
Masso's response to the complaint was the affirmative
defense that PRMMI breached the TVA. In the pre-trial order,
submitted to the court by both parties, Masso outlined its
defense: the TVA (through its use of ther judges are tempted to
resort to "preachy" opinions, issuing admonitions about the
future which they and their courts are unlikely to follow up with
vigor. An example is the unhappiness of appellate courts with
some of the closing arguments to the jury made by overzealous
prosecutors. In an otherwise error-free case it is tempting to
shake a judicial finger and say, "We shall not in the future
permit such conduct." But the next case comes along, with
overwhelming evidence of guilt and in the main a fair trial. An
appellate court will be reluctant to reverse and will therefore
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1 Empresas Masso, Inc., Bloques Masso, Inc., Ferreteria
Masso, Inc., Caguas Lumber Yard, Inc., Masso Enterprises, Inc.
look to see if objection was made to the offending argument, if
the judge made an immediate curative instruction, and if in the
context of the entire case the remarks were likely to have had
any effect. One learns from long and frustrating experience that
one reversal is worth a hundred lectures.
In such matters as these, affecting the manner in which
cases are tried and the rules and standards governing judges and
counsel, an appellate court may on occasion rest its decision,
not on a constitution, statue or regulation, or even upon case
precedents, but upon its own supervisory authority over the
agencies and courts within its jurisdiction. It is a power to be
used sparingly, but does allow fine tuning not confined to the
precise issues raised by a particular case. When a panel of a
federal court decides to take this route, it usually circulates
its proposed rule to all members of the court for comment and
agreement. It is understandable that an attorney in an appellate
court is so immersed in her case that her attention has been
rivetted on winning a victory. "Victory" is usually translated
into the simple alternatives: affirmance or reversal. But the
court itself must confront a number of collateral choices having
to do with the kind, form, finality, secondary consequences, and
timing of decision. Some of these choices will be seen as
immensely important to the litigants and their counsel. Some
chiefly concern the internal workings of the court. But all are
worth some thought on the part of counsel . . . in order to be of
help both to themselves and the court.
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2. Unfinished business. Before a conference ends, the
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court must reflect on whether decision is the next step. It may
be that, before a novel approach is taken, supplemental memoranda
should be requested. Or perhaps at oral argument they already
have been. Or it may be that, at oral argument, the court has
suggested that the parties attempt to settle the case, or that a
compromise resolution be explored. And sometimes, when a case
involving the same issue is pending before the Supreme Court, the
court will simply defer its decision until The Supreme Court
acts.
3. Disposition choices. The two options for a final
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decision are, of course, to affirm or reverse. An added subtlety
is a decision whether or not to have the mandate (the document
that evidences the fact that it the decision is now effective)
issue immediately or to allow some time for a petition for
certiorari (i.e., a request that the case be accepted for review)
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to be presented to the Supreme Court of the United States.
Decisions that are somewhat less than final are those which
remand the case to the trial court. There are many variants: a
remand with instructions only to "institute proceedings in
accordance with this opinion;" a remand with specific
instructions (e.g., in a successful habeas corpus appeal, a
remand to the federal district court with instructions to grant
the prisoner's freedom unless the state initiates a new trial
within ninety days); a remand for clarification of the court's
reasoning, or for essential fact finding; a remand with or
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without a requirement to open the record for additional evidence;
and a remand to a different judge. Each one of these
possibilities could be fraught with significance for a litigant;
an advocate would do well to anticipate these choices and be
prepared to give advice to the court.
Then there are critical choices as to timing. A basic
question is whether a new rule or an extension of existing law
should be applicable prospectively or retrospectively. But there
are timing questions relating to the issuance of the instant
decision. Sometimes the panel (if it is a federal court of
appeals) knows that one of the issues is being considered by
another panel in another case; some checking with that panel is
indicated. The resry, and conceded that a number of lumber
shipments had been made for Masso on lo/lo vessels. He did
testify that "for a period of time" in the latter part of 1990
there was no ro/ro vessel servicing Jacksonville, and he also
stated that at sales meetings, in trying to anticipate revenues,
he would review contracts, including Masso's TVA. Unable to give
more specific testimony because of the sanctions imposed by the
court, he gave his conclusory opinion that PRMMI did not provide
MASSO with enough ro/ro service to comply with the TVA.
This evidence, even viewed most charitably for defendants on
the assumption that only ro/ro's were contemplated by the TVA,
might support a finding that to some extent at some time PRMMI
did not live up to its undertaking. But it is clear that,
contrary to defendants' initial contention, PRMMI did not phase
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out its ro/ro fleet during the contract period. Two of the three
ro/ro vessels remained in service for the duration. It is also
clear that, except for one period of time of uncertain length,
there was no failure to provide ro/ro service to any port.
Generally, the temporary unavailability of a vessel resulted in
biweekly rather than weekly service for a post.
What is left completely unclear is any basis for assessing
the magnitude of any breach on PRMMI's part, to determine if it
was sufficient to justify Masso's failure to book more than half
of its promised shipments during the two-year period. The record
is bereft of data as to dates, ports, cargoes, and substituted
arrangements relating to shipments frustrated because of a lack
of proper equipment. Moreover, the record contains no evidence
of expressed unhappiness, oral or written, over PRMMI's
performance; acquiescence and waiver remain distinct
possibilities. On all of this, we remind ourselves, defendants
bore the burden of both going forward with evidence and the
ultimate burden of persuasion.
On the record, therefore, we must rule, as a matter of law,
that defendants simply failed to support their affirmative
defense.
AFFIRMED.
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