D'aquisto v. Campbell Industries

Decision Date20 December 1984
Citation162 Cal.App.3d 1208,209 Cal.Rptr. 108
CourtCalifornia Court of Appeals Court of Appeals
PartiesTony D'AQUISTO, et al., Plaintiffs and Appellants, v. CAMPBELL INDUSTRIES, Defendant and Respondent. D000937. Civ. 31084.

Daniel B. MacLeod, C. Douglas Alford and Alford & MacLeod, San Diego, for defendant and respondent.

STANIFORTH, Associate Justice.

Plaintiffs Tony D'Aquisto, et al., are commercial fishermen on the motor vessel Christina C. Their action sought recovery from Campbell Industries for negligent repair of the vessel which resulted in lost fishing time and thus the fishermen's lost share of the catch. The trial court granted summary judgment in favor of Campbell. The fishermen appeal.

On November 26, 1979, the owners of the Christina C entered into a written contract with Campbell for repair work. The agreement provided, in pertinent part:

"It is further agreed by the parties hereto that the contractor will not be liable for (1) any incidental, special or consequential damages of any nature whatsoever and/or (2) any delay or loss of use of the vessel, including, without limitation, lost revenues or lost profits.


"It is agreed that no claim arising from this transaction, including but not limited to contractual claims for breach of contract and tort claims based upon alleged negligent repair or on theories of strict liability or otherwise, shall be valid as against contractor unless said claim is presented in writing to contractor within sixty (60) days of and suit thereon commenced within six (6) months of the date of redelivery of the vessel to owner."

The vessel was drydocked at Campbell's shipyard on December 10, 1979. On December 20, 1979, the owners requested additional work on the propulsive shafts which connect the engine to the propellers. The vessel was scheduled to depart on its first voyage of the 1980 fishing season on January 10, 1980.

On January 16, Campbell's repair work finished, the vessel was undocked. Campbell then had a diver inspect the tail shaft bearings of the vessel because of a problem discovered on a sister ship. A potential problem was found, the vessel again drydocked and the stern tube bearings which support the propulsive shafts were replaced pursuant to the warranty provisions of the contract. The repair work was not completed until February 24, 1980.

On June 13, 1980, the fishermen filed a complaint against Campbell, alleging Campbell negligently repaired the vessel and they lost wages as a result of the negligence.

On July 11, 1980, the owners of the vessel sued Campbell, alleging negligent repairs, breach of contract and breach of warranty. (Super.Ct. No. 455376.) 1 Campbell cross-complained for payment on the repairs it had made. The trial judge, Paul Eugene Overton, ruled an exculpatory clause in the contract between the owners and Campbell was valid and enforceable. The jury found Campbell had breached the contract and warranty and was negligent, however, they awarded only nominal damages ($1) to the owners on each cause of action. Judge Overton, based on a poll of the jurors taken before their discharge, held as to the negligence cause of action "the jurors did not follow the law; and, the verdict was contrary to the court's instructions" and concluded the owners were to take nothing on the negligence cause of action. This case is currently pending on appeal (D000956).

On April 24, 1983, Campbell's motion for summary judgment against the fishermen was granted by Judge Levitt. He ruled admiralty law applied and under admiralty law, the fishermen failed to state a cause of action because "a seaman may not maintain a negligence action for damages of a vessel which arises from his employment."


The aim of the summary judgment procedure is to discover, through submission of affidavits, whether the parties possess evidence requiring the fact-weighing procedures of a trial. (Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 851, 94 Cal.Rptr. 785, 484 P.2d 953.) In examining the sufficiency of affidavits, affidavits of the moving party are strictly construed while those of the opposing party are liberally construed, and doubts as to the propriety of summary judgment are resolved in favor of the party opposing the motion. (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.) The reviewing court must determine upon a de novo examination of the affidavits whether there was no genuine issue of material fact and the moving party was entitled to judgment as a matter of law. (M/V American Queen v. San Diego Marine Const. (9th Cir.1983) 708 F.2d 1483, 1487; Lichty v. Sickels, 149 Cal.App.3d 696, 699, 197 Cal.Rptr. 137.)


State courts have concurrent jurisdiction with federal courts to entertain actions governed by admiralty law. (Madruga v. Superior Court, 346 U.S. 556, 560-561, 74 S.Ct. 298, 300-01, 98 L.Ed. 290; Baptiste v. Superior Court, 106 Cal.App.3d 87, 94, 164 Cal.Rptr. 789, cert. den. Chevron Shipping Co. (Standard Oil Co.) v. Baptiste, 449 U.S. 1124, 101 S.Ct. 940, 67 L.Ed.2d 110.) If a federal maritime rule of law, whether statutory or judicial, exists that is applicable to the issue rising in a maritime action, admiralty law must be applied whether the action is litigated in state or federal court. (Garrett v. Moore-McCormack Co., 317 U.S. 239, 245, 63 S.Ct. 246, 251, 87 L.Ed. 239.) State law may not be applied "if it works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations." (Fahey v. Gledhill, 33 Cal.3d 884, 887, 191 Cal.Rptr. 639, 663 P.2d 197.)

There is a long history of admiralty courts regulating the liability of boat repair and service contractors. (Italia Societa v. Oregon Stevedoring Company, 376 U.S. 315, 318 et seq., 84 S.Ct. 748, 750, 11 L.Ed.2d 732; Ryan Stevedor. Co. v. Pan-Atlantic Steam. Corp., 350 U.S. 124, 132 et seq., 76 S.Ct. 232, 236, 100 L.Ed. 133; Hall-Scott Motor Car Co. v. Universal Ins. Co. (9th Cir.1941) 122 F.2d 531, cert. den. Universal Ins. Co. v. Hall-Scott Motor Car Co., 314 U.S. 690, 62 S.Ct. 360, 86 L.Ed. 552; Fahey v. Gledhill, supra, 33 Cal.3d 884, 888-889, 191 Cal.Rptr. 639, 663 P.2d 197; Standard Oil Co. v. Intrepid, Inc., 26 Cal.App.3d 135, 139, 102 Cal.Rptr. 604.) Similarly, there is a long history of admiralty courts regulating disputes over mariner's wages (Oliver v. Alexander (1832) 31 U.S. (6 Pet.) 143, 8 L.Ed. 349; U.S. Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456; Putnam v. Lower (9th Cir.1956) 236 F.2d 561, 569; see also 1 Benedict, Admiralty, §§ 212-213; 70 Am.Jur.2d, Shipping, § 207 et seq., pp. 417-424) and governing recovery for lost wages and profits due to negligently caused injury to the vessel (Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290; The Hygrade No. 24 v. The Dynamic (2d Cir.1956) 233 F.2d 444; Carbone v. Ursich (9th Cir.1953) 209 F.2d 178; Guarrasi v. Panama Canal Company (D.Canal Zone 1967) 271 F.Supp. 678; Taber v. Jenny (D.Mass.1856) 23 F.Cas. 605 (No. 13720); Rodrigues v. Campbell Industries, 87 Cal.App.3d 494, 151 Cal.Rptr. 90).

Thus, we conclude this case is governed by admiralty law.


This court has accepted the view of the Ninth Circuit as expressed in Carbone v. Ursich, supra, 209 F.2d 178, that a fisherman may recover from a third party tortfeasor for the economic loss of the share of the catch. (Rodrigues v. Campbell Industries, supra, 87 Cal.App.3d 494, 499-500, 151 Cal.Rptr. 90.)

In Carbone, the Ninth Circuit allowed the fishermen to recover for their lost share of the catch suffered when another boat negligently fouled their fishing net and thus put their boat out of commission until the repairs to the net were completed. We pointed out in Rodrigues that Carbone distinguished the action by seamen from that of a ship charter dealt with in Robins Dry Dock & Repair Co. v. Flint, supra, 275 U.S. 303, 48 S.Ct. 134, saying:

" 'It is quite evident that the court, although dealing with a well established rule of law of torts, was not thinking of the special situation of the fishermen who, as we have here indicated, had long been recognized as beneficiaries under a special rule which made the wrongdoer liable not only for the damage done to the fishing vessel, but liable for the losses of the fishermen as well. This long recognized rule is no doubt a manifestation of the familiar principle that seamen are the favorites of the admiralty and their economic interests entitled to the fullest possible legal protection. These considerations have given rise to a special right comparable to that of a master to sue for the loss of services of his servant, or the right of a husband or father to sue for the loss of services of wife or child.' (Carbone v. Ursich, supra, 209 F.2d 178, 182.)" (Rodrigues v. Campbell Industries, supra, 87 Cal.App.3d 494, 500 .)

In Rodrigues v. Campbell Industries, supra, 87 Cal.App.3d 494, 151 Cal.Rptr. 90, we used the reasoning of Carbone to allow fishermen to seek recovery against Campbell Industries for their lost share of the catch due to Campbell's allegedly defective manufacture of a fishing vessel which caused them to lose fishing time. Since the defective repair of a vessel is akin to the defective manufacture of a vessel, we conclude that the reasoning of Rodrigues applies equally to this case. The fishermen state a cause of action for their lost share of the catch due to Campbell's allegedly negligent repairs. 2


Campbell asserts, as a matter of law, the fishermen are barred from recovery because a clause in the repair contract between them and the owners protects Campbell from liability for negligence causing lost profits and therefore from the fishermen's cause of action for their lost share of the catch. Even...

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