Complaint of McLinn

• Decision Date: 03 October 1984
• Docket Number: No. 82-3644,82-3644
• Citation: 744 F.2d 677
• Parties: In the Matter of the Complaint of William McLINN, as owner of the F/V FJORD, her engines, tackle, boilers, and equipment for exoneration from, or limitation of liability. In the Matter of the Complaint of Gilbert Jack JOHNSON and Jack Stewart Johnson, as owners of the F/V SUPERSONIC, her engines, tackle, boilers, and equipment, and as owners of one certain Beck 15 foot fiberglass skiff, her engine, tackle and equipment, for exoneration from, or limitation of liability. Frank CHURCHILL, as the Informal Administrator of the Estate of Patrick Churchill and Dale Carlough, Plaintiffs-Appellants, v. The F/V FJORD, etc., et al., Defendants, and The F/V SUPERSONIC, her engines, tackle, apparel, appliances, equipment, apparatus and furniture; Gilbert Johnson, part owner and/or operator of said F/V SUPERSONIC; Jack Johnson, part owner of said F/V SUPERSONIC, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 677

744 F.2d 677

1985 A.M.C. 2339

In the Matter of the Complaint of William McLINN, as owner

of the F/V FJORD, her engines, tackle, boilers,

and equipment for exoneration from, or

limitation of liability.

In the Matter of the Complaint of Gilbert Jack JOHNSON and

Jack Stewart Johnson, as owners of the F/V SUPERSONIC, her

engines, tackle, boilers, and equipment, and as owners of

one certain Beck 15 foot fiberglass skiff, her engine,

tackle and equipment, for exoneration from, or limitation of

liability.

Frank CHURCHILL, as the Informal Administrator of the Estate

of Patrick Churchill and Dale Carlough, Plaintiffs-Appellants, v. The F/V FJORD, etc., et al., Defendants, and The F/V SUPERSONIC, her engines, tackle, apparel,

appliances, equipment, apparatus and furniture; Gilbert

Johnson, part owner and/or operator of said F/V SUPERSONIC;

Jack Johnson, part owner of said F/V SUPERSONIC, Defendants-Appellees.

No. 82-3644.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 17, 1983.

Decided Oct. 3, 1984.

Gerald W. Markham, Kodiak, Alaska, for plaintiffs-appellants.

James M. Powell, Kenneth F. Brittain, Hughes, Thorsness, Gantz & Powell, Anchorage, Alaska, for defendants-appellees.

Appeal from the United States District Court for the District of Alaska.

Before CANBY, BOOCHEVER, and NORRIS, Circuit Judges.

BOOCHEVER, Circuit Judge:

Plaintiffs Churchill and Carlough sue for wrongful death and personal injury arising from the navigation of three skiffs, two of which collided. The district court granted partial summary judgment to the Johnsons, owners of one of the skiffs, and to their vessel, and entered judgment pursuant to Fed.R.Civ.P. 54(b). Plaintiffs appeal arguing that the owners are liable, alternatively, under an Alaska statute, under the theory of respondeat superior for the acts of their crewman, or for failure to maintain the skiff. Plaintiffs also contend that the Johnsons' vessel, F/V Supersonic, is liable in rem regardless of the Johnsons' liability in personam. ¹ Because we find that Alaska Owner's Civil Liability statute may be applicable we reverse the partial summary judgment and remand for further consideration of the claims.

FACTS

A collision of two skiffs occurred in the channel between Near Island and Kodiak Island, Alaska in the early morning hours of June 30, 1979. One craft, operated and occupied only by defendant Panamaroff (the Panamaroff skiff) was headed in a northeasterly direction. The other craft, operated by Russell McLinn (the McLinn skiff), was headed in a southerly direction. The collision of these skiffs resulted in the death of Patrick Churchill and injury to plaintiff Dale Carlough, both of whom were riding in the McLinn skiff. At the time of the collision, defendant Michael Chichenoff was operating a similar seine skiff (the Chichenoff skiff) in approximately the same direction and approximately the same speed as the Panamaroff skiff. The Chichenoff skiff was to the right of the Panamaroff skiff at a distance variously estimated to be from 8 yards to as much as 100 yards. There was no contact between the Chichenoff skiff and either of the other skiffs. None of the skiffs had night running lights and all were allegedly traveling at high speeds in violation of local ordinances.

Mr. Panamaroff had been experiencing engine difficulties and was headed home to Ouzinkie when the accident occurred. Defendant Chichenoff had agreed to accompany his friend Panamaroff through the channel to insure that he did not become stranded if his engine malfunctioned.

Chichenoff operated a seine skiff of the salmon fishing vessel F/V Supersonic; defendants Jack and Gilbert Johnson own both the fishing vessel and skiff. The McLinn skiff had been used for a similar purpose in conjunction with the F/V Fjord, owned by William McLinn, father of Russell McLinn. The fishing vessels were moored in Kodiak during the temporary closure of the salmon fishery.

Plaintiffs, Dale Carlough and Frank Churchill, father of decedent Patrick Churchill, brought suit in admiralty against Russell McLinn, William McLinn, Panamaroff, Chichenoff, Gilbert Johnson and Jack Johnson in personam, and against the F/V Fjord and the F/V Supersonic in rem. We are concerned in this appeal only with the suit against the Johnsons and the F/V Supersonic. In the district court, the Johnsons moved for summary judgment as to their liability and that of their vessel, the F/V Supersonic, or in the alternative, for limitation of liability to the value of the Chichenoff skiff or barring that, to the value of the F/V Supersonic. Plaintiffs Carlough and Churchill filed a cross-motion for summary judgment on the same issues. The district court granted the Johnsons' motion for summary judgment and denied the other motions. Plaintiffs now appeal the grant of summary judgment to the Johnsons and the F/V Supersonic.

Standard of Review

In reviewing a grant of summary judgment, the appellate court's task is identical to that of the trial court. Viewing the evidence in the light most favorable to the party against whom summary judgment is granted, the appellate court must determine whether the trial court correctly found that there was no genuine issue of material fact and that the moving party was entitled to judgment as a matter of law. Heiniger v. City of Phoenix, 625 F.2d 842, 843 (9th Cir.1980).

One of the issues in this case hinged on the district court's interpretation of an Alaska statute. Our review of the court's interpretation was contingent on whether we applied a de novo or clearly erroneous standard, about which there was some confusion in this court's prior decisions. To clarify the appropriate standard, we requested en banc consideration, and a majority of the judges of this court voted to hear the matter en banc. The en banc court determined that "questions of state law are reviewable under the same independent de novo standard as are questions of federal law". In re Complaint of McLinn, 739 F.2d 1395 at 1397 (9th Cir.1984) (en banc).

Discussion

Liability in collision cases, such as the present case, is predicated on fault. A non-colliding vessel or its owner may be at fault if some negligence of its crew or deficiency in the vessel brings about an accident between two other vessels. G. Gilmore & C. Black, The Law of Admiralty Sec. 7-2, at 486 (2d ed. 1975); J. Griffin, The American Law of Collision Sec. 223 (1949). Liability in rem may be based on negligent navigation by persons lawfully in possession of a vessel, J. Griffin, supra, Sec. 244, at 557, or the violation of some rule or statute prescribing necessary equipment. G. Gilmore & C. Black, supra, Sec. 7-3. Liability in personam of the vessel owner rests on the doctrine of respondeat superior. J. Griffin, supra, Sec. 243.

In the present case, plaintiffs Churchill and Carlough assert liability in rem and in personam based on each of the above delineated theories. They also assert in personam iability against the Johnsons under an Alaska statute.

I. Alaska Owner Responsibility Statute

Churchill and Carlough seek to impose liability upon the Johnsons under an Alaska statute, Alaska Stat. Sec. 05.25.040 (1981). That section reads in pertinent part:

The owner of a watercraft is liable for injury or damage caused by the negligent operation of his watercraft whether the negligence consists of a violation of a state statute, or neglecting to observe ordinary care in the operation of the watercraft as the rules of common law require. The owner is not liable, however, unless his watercraft is used with his express or implied consent ....

The district court held that whether Chichenoff had the Johnsons' implied consent to use the Chichenoff skiff and was negligent in its operation were questions of fact unsuited for resolution on summary judgment. The court held as a matter of law, however, that section 05.25.040 did not impose liability upon the Johnsons because the Chichenoff skiff was not a "watercraft" within the meaning of the statute. "Watercraft" is defined as:

... every description of vessel, other than a seaplane on the water, used or capable of being used as a means of transportation on water and devoted to recreational pursuits unless otherwise expressly provided in this chapter; and excepting vessels having a valid marine document ....

Alaska Stat. Sec. 05.25.100(4) (1981). The district court held that under the plain meaning of section 05.25.100(4), the Chichenoff skiff was not "devoted to recreational pursuits" because it was a seine skiff, "devoted to use as a part of the equipage of the F/V SUPERSONIC for use in commercial salmon fishing."

A. Certification

After filing this appeal, plaintiffs for the first time moved to certify issues concerning the interpretation of Alaska Stat. Sec. 05.25.040 (1981) to the Alaska Supreme Court pursuant to Alaska Appellate Rule 407. Use of certification rests in the sound discretion of this court. Lehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 1744, 40 L.Ed.2d 215 (1974).

Lehman Bros., however, provides no clear standards as to when certification should be used. This circuit has used the certification procedure but has not articulated its standards for doing so. See Queets Band of Indians v. State of Washington, 714 F.2d 1008, 1009 (9th Cir.1983); Estate of Madsen v. Commissioner of Internal Revenue, 659 F.2d 897, 899 (9th Cir.1981); Mutschler v. Peoples National Bank, 607 F.2d 274, 278-79 (9th Cir.1979). The Fifth Circuit has indicated that the question certified must be close, and the issue must be important to the state in terms of comity. The certifying court also should consider the possible delays involved and whether the legal issue can be framed to produce a helpful response by the state. Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 275 (5th Cir.), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 92 (1976); see also 1A J. Moore, W. Taggart, A. Vestal & J. Wicker,...