Darling v. Scheimer
| Decision Date | 20 July 1971 |
| Docket Number | 24568.,No. 24567,24567 |
| Citation | 444 F.2d 514 |
| Parties | Silas S. DARLING and Mary J. Darling, Plaintiffs-Appellees, v. Charlotte SCHEIMER and Leonard B. Frazier, Defendants-Appellants. Silas S. DARLING and Mary J. Darling, Plaintiffs-Appellants, v. The FISHING VESSEL "MISS JUDY," etc., et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jack G. Knebel (argued), of McCutchen, Doyle, Brown & Enersen, San Francisco, Cal., for Charlotte Scheimer and Leonard B. Frazier.
Peter N. Swan (argued), Eugene, Or., for Silas S. and Mary J. Darling.
Before MADDEN,* Judge of the United States Court of Claims, and BROWNING and KILKENNY, Circuit Judges.
Rehearing Denied in No. 24567 July 20, 1971.
Two fishing boats, the Sea Wolf and the Miss Judy, collided off the coast of California. The Sea Wolf sank, a total loss. The owners of the Miss Judy appeal from the trial court's finding that their vessel was solely at fault. The owners of the Sea Wolf cross-appeal, challenging the adequacy of the damage award.
Miss Judy's efforts to attribute fault to the Sea Wolf rest ultimately upon the contention that the Sea Wolf was under a duty to post a lookout.
The undisputed facts are that the Sea Wolf, together with other boats of a fishing fleet, had shut off their engines for the night and were drifting 35 miles off the coast in open seas 1600 fathoms deep. The Sea Wolf's mast light and side navigation lights were burning. It was a clear, moonlit night, with six to ten mile visibility. There was little or no wind; the seas were calm and flat. It was the custom and practice in the coastal fishing industry for boats of the size and service of the Sea Wolf not to post a full-time lookout when shut down for the night and drifting on the high seas in calm, clear weather.
The Miss Judy contends that the Sea Wolf was "under way" within the meaning of the statutory International Rules since she was "not at anchor, or made fast to the shore, or around," see 33 U.S.C. § 144(c) (v); that she was required to keep a proper lookout under Rule 29, see 33 U.S.C. § 147a; and that she could not be absolved of liability because it had not been shown that her statutory fault could not have contributed to the collision. The The Pennsylvania, 86 U.S. (19 Wall) 125, 22 L.Ed. 148 (1873).
We do not read Rule 29 as imposing a duty to maintain a lookout under any and all circumstances. Anthony v. International Paper Co., 289 F.2d 574, 581 (4th Cir. 1961); see also Stevens v. United States Lines, 187 F.2d 670, 674-675 (1st Cir. 1951). The district court's finding that there was no such duty in the circumstances of this case — a fully lit vessel, dead in the water on the high seas in flat calm weather, with good visibility on a clear, moonlit, fog-free night — is not clearly erroneous.
Testimony regarding the custom and practice of the industry was cogent evidence supporting this finding. Cf. Prosser on Torts 135-137 (2d...
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...Corp., 500 F.2d 361, 366 (9th Cir.1974); or where the parties have asserted claims or defenses in bad faith, Darling v. Scheimer, 444 F.2d 514, 515 (9th Cir.1971). Still another circuit has deemed the uncertainty of the claim or damage as a peculiar circumstance. E.g. Sinclair Ref. Co. v. S......
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Lentz v. M/V Eastern Grace, 87-3732
...at 208 (adjusting the degree of fault because "evidence of custom can be used to support a finding of negligence"); Darling v. Scheimer, 444 F.2d 514, 515 (9th Cir.1971) (discussing, as relevant to fault, the custom of night drifting practiced by fishing boats off the Washington coast); see......
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Cliffs-Neddrill Turnkey v. M/T RICH DUKE, Civ. A. No. 90-051-JLL.
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