USCA1 Opinion

May 30, 1995

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit
____________________

No. 94-2289

PUERTO RICO MARINE MANAGEMENT, INC.,

Plaintiff, Appellee,

v.

EMPRESAS MASSO, ET AL.,

Defendants, Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]

___________________

____________________

Before

Selya, Circuit Judge,

_____________
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________

____________________

Jose A. Hernandez Mayoral with whom Rafael Hernandez Mayoral

__________________________
________________________
on brief for appellants.
Carlos J. Quilichini with
_____________________
for appellee.

whom Juan Carlos Gorbea

___________________

was on br

____________________

____________________

COFFIN,

Senior Circuit Judge.

_____________________

This is

an appeal

from a

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

TVA,

covering the

agreed

to

ship

continental

that

(collectively, Masso).1

period from

minimum

May 1990

of

500

to August

"trailers"

United States to Puerto Rico.

during this

deficit was 590.

period

only 410

Under the

1992, Masso

annually

from

The complaint alleged

shipments

were booked;

the

Applying the appropriate tariff of "$250.00 per

container/trailer," the total claimed deficit was $147,500.

Masso's

response

to

the

defense that PRMMI

breached the

submitted

court

to

the

defense: the TVA (through

complaint

by both

TVA.

In

parties,

was

the

affirmative

the pre-trial

Masso

its use of ther judges

order,

outlined its

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

some of the

closing arguments

prosecutors.

shake

In an

a judicial

permit

overzealous

otherwise error-free case it is

tempting to

finger and

overwhelming evidence

to the jury

appellate courts with

made by

such conduct."

appellate

the unhappiness of

say, "We

But the

next

shall not in

case comes

the future

along,

with

of guilt and in the main a fair trial.

court will be reluctant to reverse and

An

will therefore

____________________

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 judge made an

context

immediate curative instruction, and if

of the entire

any effect.

the offending argument, if

case the remarks were

in the

likely to have had

One learns from long and frustrating experience that

one reversal is worth a hundred lectures.

In such

cases

matters as

these, affecting

the

manner in

which

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

precedents,

but

upon its

or regulation, or

own

supervisory

authority over

agencies and courts within its jurisdiction.

used

sparingly, but does allow

precise issues

federal court decides to take

its proposed

rule to all

so immersed in

rivetted on winning

into the simple

case.

panel of a

this route, it usually

circulates

members of the

her case

a victory.

court for comment

that her

"Victory"

attention has

of

decision.

Some

been

is usually translated

reversal.

But

the

number of collateral choices having

to do with the kind, form, finality, secondary

timing

and

attorney in an appellate

alternatives: affirmance or

court itself must confront a

confined to the

When a

agreement. It is understandable that an

court is

the

It is a power to be

fine tuning not

raised by a particular

even upon case

of these

consequences, and

choices will

be

seen as

immensely

important to the

litigants and

chiefly concern the internal

their counsel.

workings of the court.

Some

But all are

worth some thought on the part of counsel . . . in order to be of

help both to themselves and the court.

-3-

2.

court must

Unfinished business.
___________________

Before a

conference ends,

reflect on whether decision is the next step.

the

It may

be that, before a novel approach is taken, supplemental memoranda

should

have

be requested.

been.

Or it

Or

perhaps at oral

may be that, at

argument they already

oral argument, the court has

suggested that the parties attempt to settle the case,

compromise resolution be

explored.

And

or that a

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

decision are, of course, to affirm or reverse.

is a decision whether

that

issue

or not to have

evidences the fact that

immediately or

to

allow some

time

final

An added subtlety

the mandate (the

it the decision

document

is now effective)

for a

petition

for

certiorari (i.e., a request that the case be accepted for review)

__________

to be presented to the Supreme Court of the United States.

Decisions that are somewhat less

remand

the case to the trial court.

remand

with

accordance

instructions

with

instructions

this

(e.g.,

only

opinion;"

in a

prisoner's freedom

within ninety days);

reasoning,

or

"institute

remand

proceedings

with

corpus

a remand for

fact

-4-

state initiates a

clarification of the

finding;

in

specific

appeal, a

court with instructions to

unless the

for essential

There are many variants: a

successful habeas

remand to the federal district

the

to

than final are those which

grant

new trial

court's

remand with

or

without a requirement to open the record for additional evidence;

and

remand

to

different

possibilities could be fraught

an

advocate would

do well

judge.

Each

one

of

these

with significance for a litigant;

to anticipate

these choices

and be

prepared to give advice to the court.

Then

question is

there

are critical

whether a new rule

choices as

to

or an extension

timing.

A basic

of existing law

should be applicable prospectively or retrospectively.

But there

are

timing questions

decision.

appeals)

relating to

Sometimes the

knows that

the issuance

panel (if

one of

it is

the issues

of the

federal court

is being

case; some checking with that

indicated.

and conceded

shipments had

been

made for

testify that

"for a period of

there was no

ro/ro vessel

stated

Masso on

that

a number

lo/lo vessels.

time" in the latter

servicing Jacksonville,

of

considered by

another panel in another

The resry,

instant

panel is

of lumber

He

did

part of 1990

and he

also

that at sales meetings, in trying to anticipate revenues,

he would review contracts, including Masso's TVA.

Unable to give

more specific

imposed by the

court,

testimony because of the sanctions

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

might support a finding

did not

live up

contrary to

to

ro/ro's were contemplated

that to some extent

its undertaking.

But

by the TVA,

at some time

PRMMI

it

that,

is clear

defendants' initial contention, PRMMI

did not phase

-5-

out its ro/ro fleet during the contract period.

ro/ro

vessels remained in service for the

Two of the three

duration.

It is also

clear

that, except for one

there

was no

failure

Generally, the

period of time

to provide

ro/ro

of uncertain length,

service to

temporary unavailability of a

any

port.

vessel resulted in

biweekly rather than weekly service for a post.

What is left completely

the magnitude of

was

unclear is any basis

any breach on PRMMI's part, to

for assessing

determine if it

sufficient to justify Masso's failure to book more than half

of its promised shipments during the two-year period.

is

bereft of data as

to dates, ports,

cargoes, and substituted

arrangements relating

to shipments frustrated because

of

proper equipment.

Moreover,

of

expressed

performance;

unhappiness,

acquiescence

The record

of a lack

the record contains no evidence

oral

and

or

written,

waiver

over

remain

PRMMI's

distinct

possibilities.

bore

the

On all

burden of

of this, we remind

both going

forward

ourselves, defendants

with evidence

and the

ultimate burden of persuasion.

On the record, therefore, we must

that

defendants

simply

failed

defense.

AFFIRMED.

-6-

to

rule, as a matter of law,

support

their

affirmative