### The Honorab le 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 t o 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.

Ga mma 10 Plastics, Inc., (Gamma 10) appeals the district court's 1 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 Presiden t 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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resinfrom Gamma 10, APL was to issue "through" bills of lading, meaning that APL would be responsible for the goods until they were received by th e consignees in China.

Prior t o shipping, the plastic resin was packed in bags, placed o n woodenpallets, and covered with shrink-wrap plastic. The wrapped resin was then placed in se aled containers for shipment. The contract provided that these containers were to remain sealed until receipt by the consignee

.

The c onsignees for the first two shipments notified Gamma 10 tha t they were having trouble locating the goods at the designated ports i n China. Because of the problems in locating the first two shipments, Gamma 10 instructed APL to hold the third and fourth shipments in the Unite d States. The third sh ipment, however, was mistakenly sent to China. When the f irst two shipments were located, the goods had been "devanned" -

- removed from their containers -- and as a result, the resin wa s contaminated. Gamma 10 claimed that due to APL' s alleged devanning of the first two shipments a nd 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 Ju ly of 1990, Gamma 10 filed suit in Minnesota state court. I t alleg ed negligent or intentional misrepresentation and that APL wa s 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 grante d part ial summary judgment to Gamma 10 on APL's affirmative defense o f limitations. After a five-week trial, the jury returned a verdict in favo r of Gamma 10 for $500,000. Gamma 10 Plastics, Inc. v. American President Lines,

### B ecause we held in the first appeal that the claim on th e 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 contend s that Gamma 10 waived this argument, and that in 4 

### any event it is precluded by the "law of the case" doctrine. I n 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 ple adings to claim punitive damages and refusal to instruct on punitiv e 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 firs t shipment to Whampoa, China, finding that the dispute arising over tha t shipment w as time-barred. We also reversed the district court's holding 3 that Gamma 10 could not amend its pleadings to include a claim for punitiv e damages and remanded for a new trial.

Asecond trial commenced on April 10, 1995. The jury returned a special verdict on June 7, 1995, in which it found for APL. Gamma 10 move d 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 gr ound that the district court's jury instructions regarding "prope r delivery" were erroneous. Gamma 10 advanced three theories of how th e 4 containers were devan ned. One theory was that the Chinese port authority devanned the containers; a second theory was that APL devanned th e containers once the shipment reached

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Sha nghai; a third theory was that APL devanned the cargo prior to it s 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 fin d liability based on the third theory, the word "containerized" (as indicate d 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 o f lading, the consignee. Therefore, in this case the duty o f proper delivery required American President Lines either t o de liver the [containerized] cargo to the consignee or t o deliver it to a fit wharf and to take reasonable steps t o saf eguard it until the shipper or the consignee had a reasona ble opportunity to claim the cargo. But if you fin d that APL proved by the g reater weight of the evidence that (1) the Ch inese port practices, customs, regulations, or law s required American Presid ent Lines to relinquish the cargo to a port a uthority; (2) APL in fact delivered Gamma 10' s [containerized] goods into the custody of the port authority; (3) APL acted at all tim es in compliance with the port law and port regulations of the foreign port; and (4) the loss o r damage was accomplished while the goods were in the custody of foreign port authority officials, then American Pre sident Lines is not l iable for any damage or loss that occurred after th e port authority took possession.
Gamma 10 makes the same argument wit h regard to Instruction No. 21a:

I instruct you that proper delivery was also made if you find tha t (1) Sinotrans and PENAVICO are government-controlle d age ncies acting in an official capacity and outside of th e agencyor control of APL; (2) APL was required by law or port pra ctices to relinquish the cargo to either agency; (3) AP L deliv ered the [containerized] cargo into the custody an d 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

### -5- (5) the l oss 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 th e instruction as given, without the word "containerized" did not permit the jury to find APL liable as long as the goods wer e ultimately delivered, in whatever state.

III.
In determining whether a jury instru ction is proper, we keep in mind that t he district court has "`wide discretion'" in drafting jur y instructions. Hose v . Chicago Northwestern Transp. Co. , 70 F.3d 968, 977 (8thCir. 1995) (quoting Davis v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 906 F.2d 1206, 1212 (8th Cir. 1990)) (citation omitted). We mus t read the jury instructions as a whole and look a t the instruction at issue in l ight 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 "fairl y 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 th e instructions are technically imperfect or are not a model of clarity does not render the charge erroneous.'" National Automotive , 46 F.3d at 84 4 (quoting Tribble v. Westinghouse Elec. Corp. , 669 F.2d 1193, 1197 (8t h Cir.), cert. denied , 460 U.S. 1080 (1983)).

We conclu de 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 i n Shanghai, but rather required the jury to consider

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that possibility.
Instruction No. 21 required the jury to find all four of the el ements of proper delivery in order to absolve APL from liability. The prope r deliveryinstruction is written in the conjunctive, plainly stating that onl yif the jury found all four elements, could it find for APL. Th e fourth element in the proper delivery instruction required the jury to fin d tha t "the loss or damage was accomplished while the goods were in th e custody of foreign port authority officials." Thus, this part of th e instr uctionrequired that the jury make a determination of when and i n whose hands the devanning occurred.
Likewise, Instruction No. 21a required the jury to find that al l five listed circumstances set forth therein existed before absolving APL o f li ability, which included a finding that "the loss or damage wa s accomplishedwhile the goods were in the custody of either Sinotrans o r PENAVICO." Thus, thi s instruction also required the jury to consider the circumstances surrounding the devanning of the cargo.

In addi tion, 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 becom e contam inated; and third, that it was the contamination which ultimatel y resulted in Gamma 10's loss or damage. Therefore, if the jury had believe d Gamma 10's allegationthat APL devanned the goods prior to arrival at the port, the jury would also have had to conclude t hat such devanning and the consequent loss or damage occurred when the goods were in the hands of APL

. Thus, by making the f inding that the loss or damage occurred in the hands of another party and ultimately concluding that APL was not liable, th e jury necessarily cons idered that which Gamma 10 now contends the jury was not given the opportunity to consider -- whether APL devanned the good s prior to their arrival

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at the Chinese port.
The proper delivery instruction, abo ve, also plainly stated that the duty of proper delivery also required APL to "take reasonable steps t o safeguard [the cargo] until the shipper or the consignee had a reasonable opportunity to claim the cargo." The court late r instructed the jury that
one of Ga mma 10's theories of negligence was that APL had failed t o safegu ard by emptying the cargo. Thus, the jury was made aware tha t devanning the cargo would constitute a failure to safeguard the cargo

. Sucha failure would constitute improper delivery, which in turn woul d require the jury to f ind APL liable on Gamma 10's claim that APL devanned the containers prior to delivery.

Gamma 10 also contends that the tria l court merely listed Gamma 10's alle gations of negligence without instructing the jury as to how th e allegations would lead to a finding of liability. Gamma 10's contention tha t the court provided no link to liability is unfounded. The cour t supplemented these allegations by instructing th e jury that Gamma 10 would prove the essential elements of its claim if it showed that APL wa s "negligent in one or more of the particulars alleged in instruction 22," and that negligence w as the "proximate cause of the injury and consequent damage sustained by Gamma 10." Moreover, the jury was asked on the specia l verdict form whether it found "that the defendants or their agents acted negligen tlyin performing any one or more of the specific acts o f negli gence alleged by Gamma 10." Instruction No. 22 informed the jur y that:

. . . .
2. American President lines or its agents failed to take reasonable steps to safeguard Gamma 10's cargo between September and Decembe r of 1988 by emptying the cargo from the sealed containers;

### -8- . . . . 4. Ame rican President Lines or its agents violated port law, por t practices , and port regulations in China by devanning, or emptying, Gamma 10's goods prior to the arrival of a consignee[.]

Takenas a whole, these instructions clearly provided an avenue for th e juryto 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 failin g to properly deliver and safeguard, by devanning the container s prior to the consignees' taking possession, and by breaking the seals on the conta iners. Thus, the jury was fully apprised of Gamma 10's theor y regardi ng breach of contract and was bound to find APL in breach of it s 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.