The Honorable Robert G. Renner, United States District Judge 1

for the District of Minnesota.

 The first shipment of five containers was shipped to Whampoa, 2

China; the second shipment of five containers was shipped to

Shanghai, China; the third shipment of six containers was shipped

to Hong Kong; and the fourth shipment of four containers was held

in Los Angeles.

___________

No. 95-3315

___________

Gamma 10 Plastics, Inc., *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

American President Lines, Ltd.; *

American President Companies, *

Ltd., *

*

Appellees. *

___________

 Submitted: October 25, 1996

 Filed: January 22, 1997

___________

Before WOLLMAN, ROSS, and MURPHY, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Gamma 10 Plastics, Inc., (Gamma 10) appeals the district court's1

denial of its motion for a new trial, contending that the district court

rendered erroneous jury instructions. We affirm. 

I.

In 1988 Gamma 10 entered into a contract with American President

Lines, Ltd., (APL) a large steamship carrier. APL was to transport four

separate shipments of Gamma 10's plastic resin from the United States to

various ports in China. Upon receipt of the 2
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resin from Gamma 10, APL was to issue "through" bills of lading, meaning

that APL would be responsible for the goods until they were received by the

consignees in China. 

Prior to shipping, the plastic resin was packed in bags, placed on

wooden pallets, and covered with shrink-wrap plastic. The wrapped resin

was then placed in sealed containers for shipment. The contract provided

that these containers were to remain sealed until receipt by the consignee.

The consignees for the first two shipments notified Gamma 10 that

they were having trouble locating the goods at the designated ports in

China. Because of the problems in locating the first two shipments, Gamma

10 instructed APL to hold the third and fourth shipments in the United

States. The third shipment, however, was mistakenly sent to China. When

the first two shipments were located, the goods had been "devanned" --

removed from their containers -- and as a result, the resin was

contaminated. Gamma 10 claimed that due to APL's alleged devanning of the

first two shipments and its failure to make timely delivery of the goods,

Gamma 10 lost buyers for the resin, but was eventually able to resell all

four shipments at a lower price. 

In July of 1990, Gamma 10 filed suit in Minnesota state court. It

alleged negligent or intentional misrepresentation and that APL was

negligent in shipping, handling, storing, tracking, and protecting Gamma

10's goods, which Gamma 10 claimed was also in breach of their contract.

APL removed the case to federal district court. The district court granted

partial summary judgment to Gamma 10 on APL's affirmative defense of

limitations. After a five-week trial, the jury returned a verdict in favor

of Gamma 10 for $500,000. Gamma 10 Plastics, Inc. v. American President

Lines,
 Because we held in the first appeal that the claim on the

3

first shipment to Whampoa was time-barred, that shipment was not at

issue in the second trial, nor is it in this appeal.

 APL contends that Gamma 10 waived this argument, and that in 4

any event it is precluded by the "law of the case" doctrine. In

light of our disposition, we need not address these arguments.

-3-

Ltd., 839 F. Supp. 1359 (D. Minn. 1993).

Gamma 10 appealed the trial court's refusal to allow it to amend its

pleadings to claim punitive damages and refusal to instruct on punitive

damages. APL cross-appealed the district court's partial summary judgment

in favor of Gamma 10. We affirmed the district court's ruling that claims

on the second, third, and fourth shipments were not time barred. Gamma 10

Plastics, Inc. v. American President Lines, Ltd., 32 F.3d 1244 (8th Cir.),

cert. denied, 115 S. Ct. 1270 (1995). However, we reversed as to the first

shipment to Whampoa, China, finding that the dispute arising over that

shipment was time-barred. We also reversed the district court's holding 3

that Gamma 10 could not amend its pleadings to include a claim for punitive

damages and remanded for a new trial.

A second trial commenced on April 10, 1995. The jury returned a

special verdict on June 7, 1995, in which it found for APL. Gamma 10 moved

for a new trial, alleging that the verdict was against the weight of the

evidence and that there were erroneous evidentiary rulings and erroneous

jury instructions. 

II.

Gamma 10 appeals the denial of its motion for a new trial only on the

ground that the district court's jury instructions regarding "proper

delivery" were erroneous. Gamma 10 advanced three theories of how the

4

containers were devanned. One theory was that the Chinese port authority

devanned the containers; a second theory was that APL devanned the

containers once the shipment reached 
-4-

Shanghai; a third theory was that APL devanned the cargo prior to its

arrival in Shanghai. Gamma 10 argues that the instructions precluded the

jury from finding APL liable on this third alternative.

Gamma 10 contends that in order for the jury to be able to find

liability based on the third theory, the word "containerized" (as indicated

in brackets) should have been included in Instruction No. 21: 

The bills of lading in this case were through bills requiring

delivery to a party in possession of an original bill of

lading, the consignee. Therefore, in this case the duty of

proper delivery required American President Lines either to

deliver the [containerized] cargo to the consignee or to

deliver it to a fit wharf and to take reasonable steps to

safeguard it until the shipper or the consignee had a

reasonable opportunity to claim the cargo. But if you find

that APL proved by the greater weight of the evidence that (1)

the Chinese port practices, customs, regulations, or laws

required American President Lines to relinquish the cargo to a

port authority; (2) APL in fact delivered Gamma 10's

[containerized] goods into the custody of the port authority;

(3) APL acted at all times in compliance with the port law and

port regulations of the foreign port; and (4) the loss or

damage was accomplished while the goods were in the custody of

foreign port authority officials, then American President Lines

is not liable for any damage or loss that occurred after the

port authority took possession.

Gamma 10 makes the same argument with regard to Instruction No. 21a:

I instruct you that proper delivery was also made if you find

that (1) Sinotrans and PENAVICO are government-controlled

agencies acting in an official capacity and outside of the

agency or control of APL; (2) APL was required by law or port

practices to relinquish the cargo to either agency; (3) APL

delivered the [containerized] cargo into the custody and

control of either agency; (4) APL and its agents acted at all

times in compliance with port law and port regulations of the

foreign port; and 
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(5) the loss or damage was accomplished while the goods were in the

custody of either Sinotrans or PENAVICO.

Gamma 10 argues that to absolve APL from liability, the jury had to

find not only that the goods reached the Chinese ports, but also that they

were in their containers when delivered. Gamma 10 contends that the

instruction as given, without the word "containerized" did not permit the

jury to find APL liable as long as the goods were ultimately delivered, in

whatever state.

III.

In determining whether a jury instruction is proper, we keep in mind

that the district court has "`wide discretion'" in drafting jury

instructions. Hose v. Chicago Northwestern Transp. Co., 70 F.3d 968, 977

(8th Cir. 1995) (quoting Davis v. Merrill Lynch, Pierce, Fenner & Smith,

Inc., 906 F.2d 1206, 1212 (8th Cir. 1990)) (citation omitted). We must

read the jury instructions as a whole and look at the instruction at issue

in light of the entire charge. National Automotive Trading Corp. v.

Pioneer Trading Co., 46 F.3d 842, 844 (8th Cir. 1995) (per curiam). Our

review of jury instructions is confined to whether the instructions "fairly

and adequately present the issues in the case to the jury." Hose, 70 F.3d

at 977. As long as "`the instructions, considered as a whole, adequately

and sufficiently state the generally applicable law, the fact that the

instructions are technically imperfect or are not a model of clarity does

not render the charge erroneous.'" National Automotive, 46 F.3d at 844

(quoting Tribble v. Westinghouse Elec. Corp., 669 F.2d 1193, 1197 (8th

Cir.), cert. denied, 460 U.S. 1080 (1983)). 

We conclude that when read in their entirety, the instructions were

not erroneous. They did not preclude the jury from finding APL liable on

Gamma 10's theory that APL devanned the goods before their arrival in

Shanghai, but rather required the jury to consider
-6-

that possibility.

Instruction No. 21 required the jury to find all four of the elements

of proper delivery in order to absolve APL from liability. The proper

delivery instruction is written in the conjunctive, plainly stating that

only if the jury found all four elements, could it find for APL. The

fourth element in the proper delivery instruction required the jury to find

that "the loss or damage was accomplished while the goods were in the

custody of foreign port authority officials." Thus, this part of the

instruction required that the jury make a determination of when and in

whose hands the devanning occurred. 

Likewise, Instruction No. 21a required the jury to find that all five

listed circumstances set forth therein existed before absolving APL of

liability, which included a finding that "the loss or damage was

accomplished while the goods were in the custody of either Sinotrans or

PENAVICO." Thus, this instruction also required the jury to consider the

circumstances surrounding the devanning of the cargo. 

In addition, the jury was aware of Gamma 10's allegations: first,

that APL devanned the containers prior to delivery to the Chinese port;

second, that the devanning of the containers caused the resin to become

contaminated; and third, that it was the contamination which ultimately

resulted in Gamma 10's loss or damage. Therefore, if the jury had believed

Gamma 10's allegation that APL devanned the goods prior to arrival at the

port, the jury would also have had to conclude that such devanning and the

consequent loss or damage occurred when the goods were in the hands of APL.

Thus, by making the finding that the loss or damage occurred in the hands

of another party and ultimately concluding that APL was not liable, the

jury necessarily considered that which Gamma 10 now contends the jury was

not given the opportunity to consider -- whether APL devanned the goods

prior to their arrival 
-7-

at the Chinese port.

The proper delivery instruction, above, also plainly stated that the

duty of proper delivery also required APL to "take reasonable steps to

safeguard [the cargo] until the shipper or the consignee had a reasonable

opportunity to claim the cargo." The court later instructed the jury that

one of Gamma 10's theories of negligence was that APL had failed to

safeguard by emptying the cargo. Thus, the jury was made aware that

devanning the cargo would constitute a failure to safeguard the cargo.

Such a failure would constitute improper delivery, which in turn would

require the jury to find APL liable on Gamma 10's claim that APL devanned

the containers prior to delivery. 

Gamma 10 also contends that the trial court merely listed Gamma 10's

allegations of negligence without instructing the jury as to how the

allegations would lead to a finding of liability. Gamma 10's contention

that the court provided no link to liability is unfounded. The court

supplemented these allegations by instructing the jury that Gamma 10 would

prove the essential elements of its claim if it showed that APL was

"negligent in one or more of the particulars alleged in instruction 22,"

and that negligence was the "proximate cause of the injury and consequent

damage sustained by Gamma 10." Moreover, the jury was asked on the special

verdict form whether it found "that the defendants or their agents acted

negligently in performing any one or more of the specific acts of

negligence alleged by Gamma 10." Instruction No. 22 informed the jury

that: 

. . . .

2. American President lines or its agents failed to take reasonable

steps to safeguard Gamma 10's cargo between September and December

of 1988 by emptying the cargo from the sealed containers; 
-8-

. . . .

4. American President Lines or its agents violated port law, port

practices, and port regulations in China by devanning, or emptying,

Gamma 10's goods prior to the arrival of a consignee[.]

Taken as a whole, these instructions clearly provided an avenue for the

jury to find negligence based on Gamma 10's allegation that APL devanned

the goods prior to their arrival in Shanghai. 

Similarly, with regard to the breach of contract claim, the jury was

informed of Gamma 10's allegations that APL had breached the contract by

failing to properly deliver and safeguard, by devanning the containers

prior to the consignees' taking possession, and by breaking the seals on

the containers. Thus, the jury was fully apprised of Gamma 10's theory

regarding breach of contract and was bound to find APL in breach of its

contract if it concluded that Gamma 10's allegations were true.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.