Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40561

Summary Calendar

JAMES ERVIN; DONALD ERVIN,

Plaintiffs–Appellants,

v.

MASTERS RESOURCES LLC,

Defendant–Appellee.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 3:07-CV-233

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

James and Donald Ervin appeal a jury verdict in favor of Masters

Resources, LLC (Masters) on their claim under general maritime law. We

affirm.

I

This case arises out of a boating accident in Galveston Bay. In July 2006,

James and Donald Ervin set out on Donald’s boat for a day of fishing. After

United States Court of Appeals

Fifth Circuit

F I L E D

December 10, 2009

Charles R. Fulbruge III

Clerk
No. 09-40561

Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir. 1978). 1

Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 238 (5th Cir. 2001); Coughlin,

2

571 F.2d at 297.

Flowers, 247 F.3d at 238. 

3

Id.

4

2

fishing at Bart’s Pass, the Ervins navigated towards Earnest Reef at about

twenty miles per hour. As they approached, their vessel allided with a

submerged object, which the Ervins claim was a pipe with a four- to six-inch

diameter. Donald was thrown overboard, and James was thrown against the

vessel’s bow. Both lost consciousness briefly and were treated at the emergency

room for their injuries. 

The Ervins sued Masters and alleged that it owned or controlled the

pipeline struck by their vessel. A jury, however, rendered a verdict for Masters,

finding that it did not own, control, maintain, or put in place the pipe the Ervins

struck. The district court entered judgment on the verdict and denied the

Ervins’ motion for a new trial. This appeal followed. 

II

The Ervins argue that the jury verdict was against the great weight of the

evidence. But federal courts “do not directly review jury verdicts.” Since the 1

Ervins did not move for judgment as a matter of law on the sufficiency of the

evidence, they did not properly preserve that argument in the district court.2

Issues raised for the first time on appeal are reviewed only for plain error. On

3

plain error review, the question “is not whether there was substantial evidence

to support the jury verdict, but whether there was any evidence to support the

jury verdict.”4
No. 09-40561

Coughlin, 571 F.2d at 297. 

5

Id. at 298. 6

Id. (internal quotation marks omitted). 7

Creppel v. Shell Oil Co., 738 F.2d 699, 701 (5th Cir. 1984). 8

See id. at 702. 9

3

Although the Ervins raised the issue in a motion for a new trial, such a

motion “will not reopen the question foreclosed by plaintiffs’ failure to move for

a directed verdict.” A denial of a motion for new trial is reviewed for abuse of 5

discretion. As such, we do not review the “sufficiency” of the evidence, but 6

rather “whether there was an absolute absence of evidence to support the jury’s

verdict.”7

Because the alleged tort occurred in navigable waters, the case is governed

by admiralty law. To establish liability, the Ervins had to show that Masters

8

“owned, maintained, placed, or controlled” the submerged obstruction that

damaged their vessel. The Ervins argue that the evidence conclusively 9

established that Masters owned, maintained, placed, or controlled the object at

issue and that no reasonable juror could have found otherwise. Specifically, the

Ervins point to the testimony as to where the accident occurred and the

testimony of Masters’s corporate representative, John Barton, which they allege

establishes that Masters controlled and maintained all pipelines in the vicinity

of the accident. 

We conclude that there is some evidence to support the jury verdict. The

only evidence that the Ervins struck a pipe was their testimony that

immediately after the accident, which knocked them both unconscious, they saw

a four- to six-inch rusty pipe just below the surface of the water. But when they

returned to the alleged location of the allision, they could not locate the pipe and

therefore could offer no direct proof that Masters owned the object that was
No. 09-40561

4

struck. Although the Ervins offered circumstantial evidence suggesting that

Masters owned most of the pipes in the area, this evidence was countered by

testimony from Masters’s witnesses that two other companies had pipes in or

near the accident location. Moreover, the Ervins insisted that the pipe allegedly

struck had a diameter of four to six inches, and Masters’s corporate

representative testified that it did not own any pipelines that size in the area of

the accident. Accordingly, we cannot conclude that there is an “absolute

absence” of evidence supporting the jury verdict. Given the highly deferential

standard of review, we must affirm the judgment.

* * *

For the foregoing reasons, the district court’s judgment is AFFIRMED.