Walter R. Brunner v. Mar. Overseas Corp., Second Shipmor Assocs., 779 F.2d 296 (2d Cir. 1986). · Go Syfert
Walter R. Brunner v. Mar. Overseas Corp., Second Shipmor Assocs., 779 F.2d 296 (2d Cir. 1986). Cases Citing This Book View Copy Cite
“the consideration of this issue would have been better served if appellants had made their objection at least at the time that the jury returned its verdict so that the court could evaluate whether or not it was inconsistent and could have sent it back to the jury to reconsider.”
62 citation events (28 in the last 25 years) across 18 distinct courts.
Strongest positive: Holmes v. Reddoch (laed, 2023-06-08)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Holmes v. Reddoch
E.D. La. · 2023 · quote attribution · 1 verbatim quote · confidence high
the consideration of this issue would have been better served if appellants had made their objection at least at the time that the jury returned its verdict so that the court could evaluate whether or not it was inconsistent and could have sent it back to the jury to reconsider.
discussed Cited as authority (rule) Robbie Franks, Individually and on Behalf of Estate of Lawrence Franks v. State National Insurance Company
M.D. La. · 2026 · confidence medium
Overseas Corp., 779 F.2d 296, 299 (5th Cir. 1986) (even if jury’s verdict “may not achieve legal nicety,” courts generally “do not have the right to second guess” a jury’s answers).
discussed Cited as authority (rule) Riddle v. TEX-FIN, INC.
S.D. Tex. · 2010 · confidence medium
The Fifth Circuit has held that a failure to object to inconsistent answers when the jury returns its verdict does not waive the right to raise the issue in a motion for a new trial because “the judge has no authority to enter judgment based upon those [inconsistent] answers.” Brunner v. Maritime Overseas Corp., 779 F.2d 296, 297-98 (5th Cir.1986); accord Johnson v. ABLT Trucking Co., 412 F.3d 1138, 1141 (10th Cir.2005) (“When a jury returns a special verdict ... a party is not required to object to inconsistencies in the *753 verdict before the jury is discharged in order to preserve th…
discussed Cited as authority (rule) Comeaux v. Coil Tubing Services, LLC
5th Cir. · 2006 · confidence medium
In Brunner v. Maritime Overseas Corp., 779 F.2d 296, 298 (5th Cir.1986), this court explained that “We do not have the right to second guess a jury that may decide a small oil spill on a deck does not necessarily make an 80,000 ton tanker unseaworthy even if the spill got there negligently.” 10 V.
discussed Cited as authority (rule) Magnussen v. Yak, Inc. (2×) also: Cited "see"
W.D. Wash. · 1994 · confidence medium
Brunner, 779 F.2d at 299 (footnote omitted).
discussed Cited as authority (rule) Rosado v. Deters
5th Cir. · 1993 · confidence medium
“If answers to jury interrogatories are in irreconcilable conflict, then the judge has no authority to enter judgment based upon *125 those answers.” Brunner v. Maritime Overseas Corp., 779 F.2d 296, 297 (5th Cir.), cert. denied, 476 U.S. 1115 , 106 S.Ct. 1971 , 90 L.Ed.2d 655 (1986); see also Fugitt v. Jones, 549 F.2d 1001, 1005 (5th Cir.1977).
discussed Cited as authority (rule) Earl K. Phillips and Carrie Phillips v. The Western Company of North America (2×)
5th Cir. · 1992 · confidence medium
Smith and Son, Inc., 852 F.2d 1421, 1433 (5th Cir.1988) (per curiam), cert. denied, 490 U.S. 1106 , 109 S.Ct. 3156 , 104 L.Ed.2d 1019 (1989); Brunner v. Maritime Overseas Corp., 779 F.2d 296, 298-99 (5th Cir.), cert. denied, 476 U.S. 1115 , 106 S.Ct. 1971 , 90 L.Ed.2d 655 (1986). .
discussed Cited as authority (rule) Munn v. Algee
N.D. Miss. · 1990 · confidence medium
“If answers to jury interrogatories are in irreconcilable conflict, then the judge has no authority to enter judgment based upon those answers.” Brunner v. Maritime Overseas Corp., 779 F.2d 296, 297 (5th Cir.1986) (emphasis added).
discussed Cited as authority (rule) Jules Simeon, Sr., and Ida Mae Griffin Simeon, Wife of Jules Simeon, Sr., Cross-Appellants, Cross-Appellees v. T. Smith & Son, Inc., Cross-Appellant v. Lumar Marine, Inc., Cross-Appellee
5th Cir. · 1988 · confidence medium
Appellate inquiry is limited to whether there was any evidence to support the jury's verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a 'manifest miscarriage of justice.' Id." Shipman v. Central Gulf Lines, Inc., 709 F.2d 383, 385 (5th Cir.1983). 38 Certainly by this standard of review, there is sufficient evidence to support the jury's finding that the PENNY was seaworthy. 39 Although the shipowner has an absolute duty to provide a seaworthy vessel, e.g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539 , 80 S.Ct. 926, 932 , 4 …
discussed Cited as authority (rule) Simeon v. T. Smith & Son, Inc.
5th Cir. · 1988 · confidence medium
Although the shipowner has an absolute duty to provide a seaworthy vessel, e.g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539 , 80 S.Ct. 926, 932 , 4 L.Ed.2d 941 (1960); Brunner v. Maritime Overseas Corp., 779 F.2d 296, 298 (5th Cir.), cert. denied, 476 U.S. 1115 , 106 S.Ct. 1971 , 90 L.Ed.2d 655 (1986), the vessel need not be “accident-free.” Mitchell, 80 S.Ct. at 933 .
cited Cited "see" Moss v. Princip
5th Cir. · 2019 · signal: see · confidence high
See Brunner v. Maritime Overseas Corp. , 779 F.2d 296 , 297-98 (5th Cir. 1986) (citing Alverez v. J.
cited Cited "see" Grab v. Traylor Bros., Inc.
E.D. La. · 2011 · signal: see · confidence high
See Brunner v. Maritime Overseas Corp., 779 F.2d 296, 298 (5th Cir.1986).
cited Cited "see" Henry v. BALLY'S LOUISIANA, INC.
La. Ct. App. · 2008 · signal: see · confidence high
See Brunner v. Maritime Overseas Corporation, 779 F.2d 296, 298 (5th Cir.1986), cert. denied, 476 U.S. 1115 , 106 S.Ct. 1971 , 90 L.Ed.2d 655 (1986).
discussed Cited "see" Parfait v. Transocean Offshore, Inc. (2×)
La. Ct. App. · 2007 · signal: see · confidence high
See Brunner v. Maritime Overseas Corporation, 779 F.2d 296, 298 (5th Cir.1986), cert. denied, 476 U.S. 1115 , 106 S.Ct. 1971 , 90 L.Ed.2d 655 (1986).
discussed Cited "see" Parfait v. Transocean Offshore, Inc. (2×)
La. Ct. App. · 2007 · signal: see · confidence high
See Brunner v. Maritime Overseas Corporation, 779 F.2d 296, 298 (5th Cir.1986), cert. denied, 476 U.S. 1115 , 106 S.Ct. 1971 , 90 L.Ed.2d 655 (1986).
cited Cited "see" Cabahug v. Text Shipping Co., Ltd.
La. Ct. App. · 2000 · signal: see · confidence high
See Brunner v. Maritime Overseas Corporation, 779 F.2d 296, 298 (5th Cir.1986), cert. denied, 476 U.S. 1115 , 106 S.Ct. 1971 , 90 L.Ed.2d 655 (1986).
cited Cited "see" United States v. Nigel D. Ince
4th Cir. · 1994 · signal: see · confidence high
See United States v. Hogan, 763 F.2d 697, 703 , corrected in part, 771 F.2d 82 (5th Cir.1985), and affirmed in relevant part, 779 F.2d 296 (5th Cir.1986).
discussed Cited "see" Henry v. State
Md. · 1991 · signal: see · confidence high
See United States v. Hogan, 763 F.2d 697, 704 , opinion withdrawn in part by, 771 F.2d 82 (5th Cir.1985) (“The court has a duty to inspect in camera the documents if a timely request is made by the defense and some indication exists in the record that the notes meet the Jencks Act definition of a statement”), reh’g denied, 779 F.2d 296 (1986).
discussed Cited "see" Mario Colin McConney v. The City of Houston, and Lee P. Brown, Individually and in His Official Capacity as Chief of Police of the City of Houston (2×)
5th Cir. · 1989 · signal: see · confidence high
See Brunner v. Maritime Overseas Corp., 779 F.2d 296, 297 (5th Cir.), cert. denied, 476 U.S. 1115 , 106 S.Ct. 1971 , 90 L.Ed.2d 655 (1986).
cited Cited "see" Holt Oil & Gas Corporation and Faywin Investments, Pty. Ltd., Plaintiffs-Counter v. Ralph L. Harvey, Defendant-Counter
5th Cir. · 1986 · signal: see · confidence high
See Brunner v. Maritime Overseas Corp., 779 F.2d 296 (5th Cir.1986).
discussed Cited "see, e.g." Haleigh McBride v. Estis Well Service L. L.
5th Cir. · 2014 · signal: see also · confidence medium
To start, Estis=s argument that Jones Act claims and unseaworthiness claims are but one collides with the Supreme Court=s decision in Usner v. Luckenbach Overseas Corp., which explained: A major burden of the Court's decisions spelling out the nature and scope of the cause of action for unseaworthiness has been insistence upon the point that it is a remedy separate from, independent of, and additional to other claims against the shipowner, whether created by statute or under general maritime law. 400 U.S. 494 , 498 (1971) (footnotes omitted) (emphasis added); see also Brunner v. Maritime Overs…
discussed Cited "see, e.g." McBride Ex Rel. I.M.S. v. Estis Well Service, L.L.C. (2×)
5th Cir. · 2014 · signal: see also · confidence medium
To start, Estis=s argument that Jones Act claims and unseaworthiness claims are but one collides with the Supreme Court=s decision in Usner v. Luckenbach Overseas Corp., which explained: A major burden of the Court's decisions spelling out the nature and scope of the cause of action for unseaworthiness has been insistence upon the point that it is a remedy separate from, independent of, and additional to other claims against the shipowner, whether created by statute or under general maritime law. 400 U.S. 494 , 498 (1971) (footnotes omitted) (emphasis added); see also Brunner v. Maritime Overs…
discussed Cited "see, e.g." Hughes v. State (2×)
Tex. Crim. App. · 1999 · signal: see, e.g. · confidence low
See e.g., United States v. Hogan, 763 F.2d 697, 702 (5th Cir.1985), modified on other grounds, 771 F.2d 82 (5th Cir.1985), aff'd in part, rev’d in part, 779 F.2d 296 (5th Cir.1986); Webster, supra, at 1193 (7th Cir.1984); DeLillo, supra, at 946-47. .
Retrieving the full opinion text from the archive…
Walter R. BRUNNER, Plaintiff-Appellee,
v.
MARITIME OVERSEAS CORP., Second Shipmor Associates, Et Al., Defendants-Appellants
84-3569.
Court of Appeals for the Second Circuit.
Jan 3, 1986.
779 F.2d 296
Terriberry, Carroll & Yancey, David B. Lawton, New Orleans, La., for defendants-appellants., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Lawrence S. Kullman, New Orleans, La., for plaintiff-appellee.
Reavley, Williams, Higgin-Botham.
Cited by 21 opinions  |  Published
Pinpoint authority: bottom 55%
JERRE S. WILLIAMS, Circuit Judge.

This case raises the issue of whether different answers to negligence and unseaworthiness interrogatories in a maritime personal injury case constitute an inconsistent verdict. Because negligence and unseaworthiness are totally separate concepts, we find no conflict and affirm.

Appellee Walter R. Brunner brought the present action against appellants Maritime Overseas Corporation and Second Shipmor Associates under the Jones Act, 46 U.S.C. § 688, seeking damages for injuries sustained when he slipped and fell on board the S/S OVERSEAS OHIO. Brunner alleged that his fall was caused by the “treacherous” condition of the deck due to an oil spill. The case was tried to a jury. The only factual issue in the case was whether there was an oil spill on the deck the night that Brunner slipped.

The jury was asked special interrogatories concerning: (1) whether the vessel was unseaworthy; (2) whether there was negligence; and (3) the quantum of damages. The district court instructed the jury in the charge that unseaworthiness and negligence were separate theories of recovery. It is clear in the record, however, that the sole basis of both the unseaworthiness and Jones Act negligence claims was the oil spill, and the judge acknowledged in the charge that appellee’s claims were both based upon the same oil spill.

The jury found that appellants were negligent and also found that the S/S OVERSEAS OHIO was not unseaworthy at the time of appellee’s accident. They found Brunner to be fifty percent contributorily negligent. The jury at first declined to award any damages, and was sent back for further deliberation by the judge. The jury then awarded $75,000 damages. The judge entered judgment for appellee in the amount of $37,500 representing the 50% negligence attributable to appellants. The district court denied appellants’ motion for new trial, which urged that the jury’s answers to the interrogatories were inconsistent. We affirm the judgment based upon the jury verdict.

I.

The threshold question is whether appellants have preserved their error. At the time the charge was given to the jury, appellants did not object to the charge on the ground that the interrogatories could result in inconsistent answers. Appellants also did not object when the verdict was returned. The consideration of this issue would have been better served if appellants had made their objection at least at the time that the jury returned its verdict so that the court could evaluate whether or not it was inconsistent and could have sent it back to the jury to reconsider. But, appellants did not waive their right to complain of inconsistent answers by failing to object. If answers to jury interrogatories are in irreconcilable conflict, then the judge has no authority to enter judgment based upon those answers. Fugitt v. Jones, 549 F.2d 1001, 1005 (5th Cir.1977). Thus, fail[*298] ure to object does not waive the right to raise the issue in a motion for new trial when answers to interrogatories result in irreconcilable conflict. Guidry v. Kem Manufacturing Company, 598 F.2d 402, 407 (5th Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980); Mercer v. Long Manufacturing NC, Inc., 671 F.2d 946, 947 (5th Cir.1982); Alverez v. J. Ray McDermott, 674 F.2d 1037 (5th Cir.1982). We conclude that appellants have met the procedural requirement to raise the inconsistent verdict claim.

II.

The issue on the merits which is raised by this appeal is whether a jury finding of negligence is consistent with a jury finding of no unseaworthiness when there is but one factual circumstance on which both findings can be based. In light of the separate nature of the negligence and unseaworthiness causes of action, we find no irreconcilable conflict.

Separate Causes of Action

The history of the unseaworthiness claim shows that it developed independently of Jones Act negligence and has been treated as a separate cause of action ever since. The origin of the seaman’s right to recover for injuries caused by an unseaworthy ship can be found in European and English law dating back to 1597. [1] The earliest mention of unseaworthiness in American judicial opinions appears in cases in which mariners were suing for their wages. Mariners were required to prove the unseaworthiness of the vessel to excuse their desertion or misconduct which would otherwise result in a forfeiture of their right to wages.

In the late nineteenth century, American admiralty courts developed the doctrine that a seaman had a right to recover for personal injuries beyond maintenance and cure. It became generally accepted that a shipowner was liable to a seaman injured in the service of a ship as a consequence of the owner’s failure to provide a seaworthy vessel. See The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903).

In 1920, Congress passed the Jones Act. This act gave recovery to seamen for injuries sustained through the negligence of the shipowner. Two years later, in Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927 (1922), the Court made its first statement that seaworthiness was unrelated to the standard of ordinary care which applies in a personal injury case. In Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944), the Court gave an unqualified stamp of approval to the view that the duty of the shipowner and his agents to provide a seaworthy ship is unrelated to the jurisprudential concept of negligence. The Supreme Court has steadfastly adhered to the principle that unseaworthiness is a completely separate concept from negligence. See Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562, (1971); 1B Benedict on Admiralty § 23 (1984); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 932, 4 L.Ed.2d 941, 948 (1960) (“From that date to this, the decisions of this Court have unde-viatingly reflected an understanding that the owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care.”).

Inconsistent Answers?

We examine whether the answers to the jury interrogatories in the present case are irreconcilable keeping the separate historical development of negligence and unseaworthiness in mind. In Kokesh v. American Steamship Co., 747 F.2d 1092 (6th Cir.1984), the Sixth Circuit Court of Appeals has recently held that findings of seaworthiness and negligence based upon a single factual allegation are not inconsistent. In Kokesh, the plaintiff alleged that he slipped and fell on a ship due to an accumulation of polluted water on the deck. He sought damages based upon both negli[*299] gence and unseaworthiness. The jury found the vessel to be seaworthy, but awarded damages for negligence just as did the jury in the case before us. The Court held that the jury findings could be reconciled because “[t]he jury could have concluded from the proof that although the defendant did not exercise ordinary care in allowing the deck to be made slippery by overflow from the vessel’s ballast tanks, the flooding of the deck did not make the vessel unseaworthy.” Id. at 1094. Thus, Kokesh held unequivocally that the verdicts were not inconsistent. The Second Circuit Court of Appeals has held to the contrary in Bernardini v. Rederi A/B Sa-turnus, 512 F.2d 660 (2nd Cir.1975).

The Kokesh holding is in agreement with the decision of the district court in this case. We conclude that the district court has not erred. Unseaworthiness and negligence are two separate grounds of recovery. See Alverez, 674 F.2d at 1041; Thezan v. Maritime Overseas Corp., 708 F.2d 175, 180 (5th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). In the present case, the jury was instructed that these were two separate theories of recovery. The jury could well have concluded that the shipowner was negligent for allowing oil on the deck of his ship, but that oil on the deck of the ship did not render the vessel unfit to go to sea. The jury has the power to determine what facts constitute unseaworthiness just as it has the power to decide if there was negligence.

Appellants urge that the jury’s answers are illogical because a “yes” answer to the negligence interrogatory necessarily found oil on the deck, while a “no” answer to the unseaworthiness interrogatory necessarily found no oil on the deck. However, as Emerson noted, “A foolish consistency is the hobgoblin of little minds.” [2] Although these answers may not achieve legal nicety, they are not irreconcilable. We do not have the right to second guess a jury that may decide a small oil spill on a deck does not necessarily make an 80,000 ton tanker unseaworthy even if the spill got there negligently. The Supreme Court observed in Mitchell that experience will sometimes triumph over logic:

There is ample room for argument, in the light of history, as to how the law of unseaworthiness should have or could have developed. Such theories might be made to fill a volume of logic, but in view of the decisions in this Court over the last fifteen years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise now would be to erase more than just a page of history.

362 U.S. at 550, 80 S.Ct. at 933, 4 L.Ed.2d at 948.

In the present case, the jury answers to the negligence and unseaworthiness interrogatories are not in irreconcilable conflict. Rather, they represent differing answers to two separate theories of recovery. The judgment was properly based upon the jury verdict. It must be upheld.

AFFIRMED.

1

. This historical discussion is taken in substance from the Supreme Court opinion in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).

2

. R.W. Emerson, Self-Reliance, (1841). Emerson also remarked, "With consistency a great soul has simply nothing to do.” Id.