Da Silva v. Pacific King, Inc.

• Citation: 195 Cal.App.3d 1,240 Cal.Rptr. 395
• Court: California Court of Appeals Court of Appeals
• Decision Date: 25 September 1987
• Parties: August DA SILVA et al., Plaintiffs and Appellants, v. PACIFIC KING, INC. et al., Defendants and Respondents. D003989.

Page 395

240 Cal.Rptr. 395

195 Cal.App.3d 1

August DA SILVA et al., Plaintiffs and Appellants, v. PACIFIC KING, INC. et al., Defendants and Respondents.

D003989.

Court of Appeal, Fourth District, Division 1, California.

Sept. 25, 1987.

Certified for Partial Publication ¹.

Dennis A. Schoville, Marcelle E. Mihaila, Jan Driscoll and Gray, Cary, Ames & Frye, San Diego, for plaintiffs and appellants

Wilner, Narwitz, Lewin & Klein, Lawrin S. Lewin and Peter S. Forgie, Beverly Hills, for defendants and respondents.

BENKE, Associate Justice.

SUMMARY

Plaintiff and appellant August Da Silva brought suit against defendants M/V Mary Antoinette (Mary Antionette) and Pacific King, Inc. (Pacific King) under the Jones Act (46 U.S.C. § 688) and general

maritime law. After a trial the jury found that Da Silva was injured as a result of the unseaworthiness of the Mary Antoinette. The jury awarded Da Silva $78,500 in compensatory damages and $17,000 in past and future "medical cure." However the jury refused to award Da Silva's wife, who is also a plaintiff and appellant, any damages for loss of consortium.

On appeal Da Silva contends the trial court erred in instructing the jury as to the applicability of a federal safety regulation and the appropriate rate of "maintenance None of the Da Silvas's arguments has merit. We affirm.

                and cure."   In addition Da Silva contends defense counsel was guilty of misconduct warranting a new trial.  Finally Da Silva and his wife argue that his compensatory damages are inadequate and that the jury's failure to award any damages for loss of consortium was erroneous
                

DISCUSSION

I Jury Instructions

A. "Sundown Sets"

At trial the parties did not dispute the fact that on October 7, 1983, Da Silva was injured when a tuna fish fell on him while he and other crew members were retrieving the Mary Antoinette's seine net from the sea. The net is three-fifths of a mile in length and 600 feet wide. As a school of captured tuna is being loaded into storage wells on the boat, a motorized pulley (the "power block") lifts the net out of the sea and compresses its 600 feet in width to three or four feet. As the compressed net comes out of the power block, crew members fold it into stacks on the stern of the boat. Oftentimes fish, sharks and porpoise become entangled in the net and, as occurred here, fall on crew members working below the power block.

On the day the accident occurred, the Mary Antoinette had put its seine net in the water an hour before sunset and Da Silva was injured while stacking it below the power block. At trial Da Silva argued that it was unlawful to start fishing that late in the day. He relied upon a former National Marine Fisheries Service (NMFS) regulation (50 C.F.R. § 216.24(d)(2)(vii)(G)) which prohibited release of seine nets within an hour and a half of sunset. ² The trial court, however, instructed the jury that so-called "sundown sets" were permissible at the time Da Silva was injured. The trial court relied upon a notice placed in the Federal Register by the NMFS on January 8, 1981. The notice stated:

"The Final Decision contained a prohibition on sundown sets which became effective on January 1, 1981. However, because of new information regarding the effects of this prohibition and the potential of the U.S. Fleet to develop means of reducing sundown [porpoise] mortalities, the National Marine Fisheries Service is reconsidering the appropriateness of this regulation.... In light of its review of the sundown prohibition, the agency has determined that it will undertake no enforcement action for alleged violations of this prohibition." (46 Fed.Reg. 2153).

On appeal Da Silva argues the notice did not rescind the regulation and that the Mary Antoinette was engaged in unlawful activity, even though the vessel was not subject to any enforcement action by the NMFS. He contends the trial court's instruction prevented him from establishing the defendant's negligence per se ³ and recovering punitive damages.

Because the jury found the defendants liable for breach of the warranty of seaworthiness, any instruction which impaired Da Silva's negligence claim was harmless. (See Kramer v. Ferguson (1964) 230 Cal.App.2d 237, 246, 41 Cal.Rptr. 61; 9 Witkin, Cal. Procedure (3d ed. 1985) § 349.) Thus we do not need to consider directly whether, as Da Silva contends, the unenforced regulation gave rise to application of the doctrine of negligence per se. (See Agricultural Labor Relations Bd. v. Laflin & Laflin (1979) 89 Cal.App.3d 651, 662-663, fn. 11, 152 Cal.Rptr. 800.) However, because of the regulation's potential impact on Da Silva's claim for punitive damages, we must nonetheless consider the propriety of its use in a civil proceeding.

Use of a safety regulation in collateral civil proceedings may be expressly limited by the legislative branch. (Spencer v. G.A. MacDonald Constr. Co. (1976) 63 Cal.App.3d 836, 857, 134 Cal.Rptr. 78; Kopczynski v. The Jacqueline, supra, 742 F.2d 555, 558-559, cert. den. 471 U.S. 1136, 105 S.Ct. 2677, 86 L.Ed.2d 696.) In Spencer, a statute prevented use of occupational safety regulations in an action between injured persons and nonemployer defendants; in Kopczynski, a statute prevented use of federal occupational safety regulations in a seaman's personal injury action.

Substantive defects in a particular regulation may also affect its use as a standard of care in a civil action for damages. (See Pipoly v. Benson (1942) 20 Cal.2d 366, 374-375, 125 P.2d 482; Olsen v. McGillicuddy (1971) 15 Cal.App.3d 897, 900-901, 93 Cal.Rptr. 530; Holman v. Viko (1958) 161 Cal.App.2d 87, 93-94, 326 P.2d 551.) In each of those cases the trial court was asked to instruct the jury on a local safety ordinance; in each case the reviewing court held that the propriety of the proposed instruction depended upon whether the local ordinance was preempted by state law. (Pipoly v. Benson, supra, 20 Cal.2d at p. 375, 125 P.2d 482 [local pedestrian ordinance preempted, instruction improper]; Olsen v. McGillicuddy, supra, 15 Cal.App.3d at pp. 900-901, 93 Cal.Rptr. 530 [no preemption of local gun ordinance, error to refuse instruction]; Holman v. Viko, supra, 161 Cal.App.2d at pp. 93-94, 326 P.2d 551 [same as Pipoly ].) The holdings in these cases make it clear that preemption, which invalidates the substance of local regulations, also prevents use of the regulations as a standard of care.

However, where the bar to enforcement of a particular regulation is unrelated to the standard of care it creates, collateral use of the regulation is appropriate. In Clinkscales v. Carver (1943) 22 Cal.2d 72, 136 P.2d 777, the court upheld application of the negligence per se doctrine even though criminal liability was barred by a defect in publication of the ordinance in question. In explaining that the defendant, who had ignored a posted stop sign, was subject nonetheless to a negligence per se instruction the Clinkscales court said:

"Even if the conduct cannot be punished criminally because of irregularities in the adoption of the prohibitory provisions, the legislative standard may nevertheless apply if it is an appropriate measure for the defendant's conduct."

(Id. at p. 75, 132 P.2d 777.)

In this case the NMFS' suspension of enforcement was related directly to the substantive propriety of the regulation. Indeed by its terms, the suspension of enforcement was caused by the NMFS's "reconsideration of the appropriateness of the regulation." (46 Fed.Reg. 2153.) Under these circumstances violation of the regulation would not support a finding of "the conscious disregard for the safety of others" which is necessary for punitive damages. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 895, 898-899, 157 Cal.Rptr. 693, 598 P.2d 854; Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 808-809, 174 Cal.Rptr. 348; G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32, 122 Cal.Rptr. 218.)

Moreover, the regulation would not support Da Silva's theory that the respondents covered up his injury in order to avoid detection by the NMFS. Plainly, in the eyes of the NMFS, there was nothing to conceal.

Because the sundown set prohibition was not a proper standard for measuring the defendants' conduct, the court acted properly in rejecting Da Silva's theory of liability. Admittedly, since at the time of the accident the prohibition had not yet been repealed, it was inaccurate to go further and instruct the jury that sundown sets were "permissible." Ideally, the jury should have been instructed that, in light of the suspension, they could not consider the regulation in their deliberations. The trial court's inaccuracy, however, did not prejudice Da Silva. Before advising the jury about its legal conclusion, the trial court explained the existence of the regulation and the notice suspending enforcement. In this context any distinction between the trial court's instruction and one which

would have told the jury to ignore the prohibition is largely academic and does not warrant reversal. (Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 770-771, 206 Cal.Rptr. 354, 686 P.2d 1158.)

B. Maintenance and Cure

"The Seaman's right to maintenance dates back to the Middle Ages. [Citation.] 'Maintenance' is the duty of a shipowner to provide food and lodging to a seaman who falls ill or becomes injured while in the service of the ship. [Citation.] The right to maintenance is tied to the right to cure, i.e. necessary medical services, and both extend to the point of 'maximum recovery.' [Citation.] In addition, a seaman is entitled to recover unearned wages. [Citations.] In sum, the elements of the common law maintenance and cure action included a living allowance during the recovery period (maintenance), reimbursement for medical expenses (cure), and unearned wages for the period from the onset of injury or illness until the end of the voyage. [Citation.]" (Gardiner...