Beeson v. Atlantic-Richfield Co.
| Decision Date | 05 May 1977 |
| Docket Number | ATLANTIC-RICHFIELD,No. 44528,44528 |
| Citation | 88 Wn.2d 499,563 P.2d 822 |
| Parties | , 1977 A.M.C. 859 Wayne R. BEESON, Respondent, v.COMPANY, Appellant. |
| Court | Washington Supreme Court |
Howard, LeGros, Buchanan & Paul, Theodore LeGros Perkins, Coie, Stone, Olsen & Williams, Theodore J. Collins, Lee E. Miller, Seattle, for appellant.
Moriarty, Long, Mikkelborg & Broz, Charles E. Yates, Henry Haugen, Seattle, for respondent.
The trial court entered judgment in favor of plaintiff-respondent Wayne Beeson for the value of his gill net found to have been damaged by defendant-appellant's ship. Defendant appeals. We affirm.
Appellant Atlantic-Richfield Company (Arco) owned and operated the supertanker Atlantic Endeavor (Endeavor). On July 21, 1974, Puget Sound Pilot Captain Lindholm boarded Endeavor at Port Angeles. The ship entered the traffic lanes of the United States Coast Guard's voluntary vessel Traffic System (VTS) 1 enroute to the Arco refinery at Cherry Point.
Captain Lindholm recommended that Endeavor go by way of Haro Strait, a deeper, wider, more easily navigated route than Rosario Strait. The suggested route would also enable the vessel to avoid a large concentration of fishing boats, with their gill nets down, known by Captain Lindholm to be in Rosario Strait near McArthur Bank.
Based on Arco's policy of following the voluntary VTS traffic lanes recommended by the Coast Guard, the master, Captain Bristow, rejected Captain Lindholm's suggestion and directed the ship to continue into the northbound or inbound voluntary traffic lane and proceed through Rosario Strait.
The weather was clear, visibility was good, and there was adequate daylight as Endeavor neared McArthur Bank where she encountered what was variously estimated as between 100 and 500 gill-netters with their nets down. Some were located in the northbound lane. Captain Bristow attempted to maneuver Endeavor through the boats and nets by giving whistle signals, changing course, reducing speed, and going astern. In the course of maneuvering to avoid gill-netters in the northbound lane. Endeavor veered to port and ran through respondent's gill net which was located in the southbound or outbound voluntary traffic lane. At the time respondent's net was hit, it was extended approximately 600 yards, marked by a buoy at the end away from his fishing vessel.
After running through nets in both the north- and southbound lanes, Captain Bristow concluded that he could not continue through Rosario Strait without doing further damage. He ordered Endeavor to come about and continue the voyage to Cherry Point by Haro Strait, the route originally recommended by Captain Lindholm.
Respondent sued Arco unsuccessfully in Seattle District Court for the value of his gill net. He appealed and obtained a trial de novo in Superior Court where he was awarded $1,000 for the value of his damaged net and $3,600 for reasonable attorney's fees. Arco appealed, and the case was certified to this court by the Court of Appeals.
Appellant Arco first assigns error to the trial court's finding of fact No. 6 that Endeavor struck respondent's gill net in the southbound rather than in the northbound lane. Appellant contends there is not substantial evidence to support the finding. We do not agree.
When a trial court has based its finding of fact on conflicting evidence and there is substantial evidence to support it, an appellate court will not substitute its judgment for that of the trial court even though it might have resolved the factual dispute differently. Hansen, Inc. v. Pacific Int'l Corp., 76 Wash.2d 220, 227, 455 P.2d 946 (1969). Substantial evidence is said to exist if there is sufficient evidence to persuade a fair-minded, rational person of the truth of the declared premise. In re Snyder, 85 Wash.2d 182, 185--6, 532 P.2d 278 (1975); See also Reynolds Metals Co. v. Electric Smith Constr. & Equip. Co., 4 Wash.App. 695, 698, 483 P.2d 880 (1971).
It is undisputed that Endeavor ran over at least three gill nets, the first at 2039 hours (8:39 p.m.) in the northbound lane. Captain Bristow estimated that his vessel was near the separation zone when he backed into a second net and that the 'third one may have been in the southbound lane, when I was heading south . . . at the time we were trying to turn the ship around.' Captain Lindholm, the pilot, acknowledged that during the maneuver of coming about to exit Rosario Strait it was quite possible Endeavor Could have gotten out of the southbound lane as far northwesterly as the vicinity of McArthur Bank.
Respondent's net was not the first cut because upon retrieving it after the accident, pieces of another net, not his own, were found entangled therein. No one testified that Endeavor backed into respondent's net. Thus, respondent's net must have been at least the third one severed by Endeavor, at some time later than 2039 hours.
This coincides with respondent's observation. Mr. Beeson saw Endeavor proceeding on a straight course the better part of a mile to the south of him. Then, Endeavor veered sharply to port setting a course directly into his net. Respondent estimated the time of collision as a few minutes prior to 2100 hours (9:00 p.m.) 15 or 20 minutes after Endeavor ran over the first net in the northbound lane.
There is substantial evidence to support finding of fact No. 6. The foregoing evidence is sufficient to persuade a fair-minded, rational person that respondent's vessel and net were located in the southbound lane at the time of the collision. The trial court's resolution of conflicting testimony in favor of respondent was based on substantial evidence, and we will not disturb it on review.
Appellant also challenges a portion of finding of fact No. 7 which determines that while some gill netters obstructed the northbound lane, respondent did not, and that respondent had no reason to assume Endeavor, proceeding in the northbound lane, was going to veer sharply into the southbound lane in the vicinity of his net. A review of the statement of facts convinces us that there is substantial evidence to support the challenged finding of fact.
Appellant also argues that this finding of fact is erroneous because Endeavor cut respondent's net while maneuvering to avoid gill-netters in the Northbound lane; and therefore the other gill-netters, rather than Arco, were responsible for the collision in the Southbound lane. We do not agree. The presence of gill-netters in the northbound lane may have increased the complexity of the navigation problem. But, none of the other fishermen is a party to this action, and there is no evidence that any was fishing with or connected in any way with respondent. Appellant Arco cannot in this manner, avoid responsibility for the maneuvering of its ship.
Appellant next asserts that the traffic separation scheme of the VTS, composed of the north- and southbound lanes and the traffic separation zone, is a marine 'fairway' within the meaning of Article 26 of the Inland Rules of the Road. 2 Arco contends that the setting of respondent's net at any point within the entire area would be an obstruction to navigation prohibited by Article 26 of the Inland Rules. Thus, it is argued, respondent was the sole proximate cause of his own damage for having set his gill net in Either the north- or southbound lanes, I.e. for having obstructed the 'fairway.'
In essence, Arco invites us to rule that the traffic lanes and separation zone of the Puget Sound voluntary VTS was a marine 'fairway' at the time of the incident and that gill nets set at any point within the lanes of the VTS were an obstruction to navigation of a merchant vessel proceeding in either lane thereof. We decline the invitation.
On July 21, 1974, the date of the accident, the VTS was merely a voluntary experimental system instituted by the Coast Guard. Therefore, we make no ruling in regard to the status of these voluntary traffic lanes and their relation to the Inland Rules of the Road at that time. 3 On September 30, 1974, two months after Endeavor had run through respondent's net, the Coast Guard made the VTS mandatory. 39 Fed.Reg. 25430 (1974), effective date September 30, 1974. See also 33 C.F.R. § 161.101 through § 161.189 (1976). The new Coast Guard Operating Manual, unlike the one in effect at the time of the accident, refers for the first time to the traffic lanes as 'fairways to which Article 26 applies.' Appellant claims navigational rights under that mandatory system. We decline the invitation to discuss or rule on any portion of 39 Fed.Reg. 25430, 33 C.F.R. § 161.101--.189, the Coast Guard Operating Manual or any navigation chart adopted subsequent to the July collision. The application of the mandatory VTS to the rights or duties of the parties under Article 26 is irrelevant to the case at hand.
We do hold, however, that the portion of the voluntary VTS with which we were here concerned, lying within an open navigable passage habitually used by vessels, falls within the definition of a marine 'fairway' as that term is used in Article 26 of the Inland Rules of the Road. See Johnnsson v. American Tug Boat Co., 85 Wash. 212, 215--6, 147 P. 1147 (1915). Thus, Rosario Strait is a marine 'fairway' to which Article 26 applies without regard to the voluntary VTS in effect at the time of the accident.
Considering Article 26 in this light, and confined to the facts and data of this incident, we are not convinced that a gill net ipso facto obstructs a marine 'fairway' by the mere fact of being placed within the outer confines of that 'fairway'. While it may be unwise to get gill nets on or near the usual and proper course frequently by vessels, Article 26 does not forbid such an act. Nevertheless, common sense requires that a fisherman consider the surrounding circumstances such as visibility, the width of the 'fairway', and the proximity of his boat to...
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