Evanow v. M/V Neptune
| Decision Date | 21 December 1998 |
| Docket Number | Nos. 97-35248,97-35249,s. 97-35248 |
| Citation | 163 F.3d 1108 |
| Parties | , 99 Cal. Daily Op. Serv. 9218, 98 Daily Journal D.A.R. 12,904 David EVANOW; Phillip Albee; Raymond Dunham, Plaintiffs-Appellees, v. M/V NEPTUNE, a tug, her engines, tackle, machinery & etc., in rem; Barge KRS 160-6, her engines, tackle, machinery, etc., in rem; Dahl Tug & Barge Company; Port Gardner Tug & Barge Co., Inc.; KRS Marine Inc.; Tacoma Boat Building Company, Defendants-Appellants. David Evanow; Phillip Albee; Raymond Dunham, Plaintiffs-Appellants, v. M/V Neptune, a tug, her engines, tackle, machinery & etc., in rem; Barge KRS 160-6, her engines, tackle, machinery, etc., in rem; Dahl Tug & Barge Company; Port Gardner Tug & Barge Co., Inc.; KRS Marine Inc.; Tacoma Boat Building Company, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Steven V. Gibbons, Gibbons & Associates, Seattle, Washington, for defendants-appellants-cross-appellees.
Richard C. Wootton, Cox, Wootton, Griffin & Hansen, San Francisco, California, for plaintiffs-appellees-cross-appellants.
Appeals from the United States District Court for the District of Oregon; Donald C. Ashmanskas, Magistrate Judge, Presiding. D.C. No. CV-95-00137-DCA.
Before: WALLACE and KOZINSKI, Circuit Judges, and EZRA, * District Judge.
The tug Neptune (in rem), the barge KRS-160-6 (in rem), Dahl Tug & Barge Company, Port Gardner Tug and Barge Company, KRS Marine, and Tacoma Boat Building Company (defendants) appeal from a judgment and an award of costs entered against them after an eight day bench trial before a magistrate judge. Evanow, Albee, and Dunham (plaintiffs) cross-appeal, arguing that the trial court improperly offset their damages. In addition, plaintiffs seek sanctions for a frivolous appeal. The district court had jurisdiction pursuant to 28 U.S.C. § 636(c) and 28 U.S.C. § 1333. We have jurisdiction over these timely filed appeals pursuant to 28 U.S.C. § 1291. We affirm the judgment, but reverse and remand the award of costs.
This case arises out of a contract to aid the Neptune and its barge when the Neptune was disabled and facing severe storm conditions. The main issues in the appeal are whether the contract is one for salvage, whether the plaintiffs are entitled to recover under the contract, and whether the plaintiffs were negligent in their effort to render aid.
Tacoma Boat Building Company contracted with Port Gardner Tug & Barge (Port Gardner) to transport a landing craft unit from Tacoma, Washington, to American Samoa. Port Gardner, in turn, entered into a bareboat charter with Dahl Tug & Barge Company for the tug Neptune and another charter with KRS Marine for the barge KRS-160-6.
After inspection of the barge, both vessels set sail in early January 1995 under the command of Captain Church. One evening, the Neptune encountered a major storm and sought refuge in the Crescent City harbor. While in the harbor, the Neptune became disabled and grounded on a sandy shoal. The crew of the Neptune secured the barge alongside the disabled tug.
That night, the storm, which was the worst in the Crescent City area in years, caused gusts up to ninety knots and swells inside the harbor to reach six to eight feet. These conditions pounded the barge against the port side of the tug. Because of the diesel fuel and oil aboard the Neptune as well as hydraulic fluid in the landing craft unit, the Coast Guard Pacific Pollution Strike Team assessed the threat of pollution as "substantial." The Coast Guard also expressed concern that the crew of the Neptune was at risk.
The next day, with the storm still raging, Albee offered to find two fishing vessels to pull the barge into a safe berth in Citizens' Dock. Church agreed, and Albee contacted Evanow, owner of the Frank & Maria, and Dunham, owner of the Paul C, who both agreed to assist in the effort.
Church agreed to pay $200 per hour for Albee's assistance, $800 per hour for the Frank & Maria, and $750 per hour for the Paul C. The parties planned for the Paul C to tow the barge into deeper waters where the Frank & Maria could come alongside and gain control of the barge. They did not discuss any time limit nor did they discuss whether the contract would be contingent on success (a so-called "no cure, no pay" contract). All during the time the parties were preparing, the storm continued to rage while the Neptune sat helplessly grounded with the barge secured alongside.
Once the vessels were in place, the Coast Guard carried a tow line from the Paul C to the barge. The Paul C then towed the barge into the deeper water of the outer harbor, which was less protected from the storm. The Frank & Maria came alongside, but the severe seas caused her to lose control of the barge. The Paul C attempted to regain control, but she was not able to do so. The barge drifted back toward the Neptune; fortunately, the crew was able to resecure the barge alongside the Neptune. The barge was then in the same position as before but now bow in instead of stern in.
After this failed effort, Albee and Church agreed that the Frank & Maria would set up a mooring arrangement. The Frank & Maria would drop anchor, pass a line to the barge, and come up on the anchor in hopes of lessening any impact between the barge and the Neptune. Once the Frank & Maria obtained the proper equipment, the Coast Guard assisted in passing a Samson line from the Frank & Maria to the barge. After assisting in the set up, the Paul C was dismissed. The Frank & Maria, with Albee aboard, remained, idling ahead to maintain a strain on the line.
The next morning, Evanow sought to increase the hourly rate for the Frank & Maria to $1,000 per hour. Church refused and later proposed a fee of $1,500 per day. Evanow did not agree, and nothing more was discussed about the fee. Evanow later asked whether he should release the barge, but Church requested that the Frank & Maria remain. Entries in the logs of both vessels indicate that the Frank & Maria's efforts helped to keep the barge steady.
After the Frank & Maria had remained in this mooring arrangement for fifty-nine hours, another tug, the Tioga, was able to pull both the Neptune and the barge into Citizens' Dock. The Frank & Maria was then dismissed.
While in Crescent City, the Coast Guard inspected the barge. The inspection revealed some minor damage, and the Coast Guard ordered a more thorough inspection. After this second inspection, the barge was cleared to continue its voyage. Before it set sail again, a marine surveyor from the London Salvage Association also inspected the barge and approved it for the voyage.
The Neptune towed the barge to American Samoa where it off-loaded the landing craft unit. After an inspection by the crew, the Neptune and the barge set out for Hawaii. Enroute, the vessels encountered twelve foot seas. After arrival in Hawaii, the Coast Guard, the American Bureau of Shipping, Port Gardner, and KRS Marine each inspected the barge. Because of damage found to the barge, the Coast Guard revoked her certificate but gave leave for her to return to Seattle for repairs.
Plaintiffs brought this action asserting claims for pure and contract salvage. Defendants counterclaimed alleging negligence.
The magistrate judge found that the parties had entered into a salvage contract that was not contingent upon success, that the contract was not modified when the Frank & Maria set up the mooring arrangement, that the plaintiffs were not negligent in their efforts, and that the barge was damaged during the trip from American Samoa to Hawaii, not in the Crescent City Harbor. He therefore entered judgment against defendants and awarded costs to plaintiffs.
Defendants mount a multifaceted attack on nearly every aspect of the trial court's judgment. As to the contract, defendants first assert that the trial court's finding of a salvage contract is clearly erroneous. They contend that the contract was merely for towage. Furthermore, defendants argue that the contract was on a "no cure, no pay" basis and that plaintiffs failed to complete the contract successfully because the Tioga eventually pulled both the Neptune and the barge into Citizens' dock. Lastly, defendants assert that the parties modified the contract when Church countered Evanow's demand with the $1,500 per day offer.
Defendants also contend that the trial court erred in ruling against their counterclaim. According to defendants, plaintiffs were negligent in their efforts to move the barge, and those efforts put the barge in a position where it pounded against the sandy shoal causing extensive damage to its interior structure. Moreover, defendants assert that they were prejudiced by the admission of three pieces of evidence: the parties' insurance policies, the testimony of Allen Trumbell, and a videotape of plaintiffs' efforts taken by Evanow's wife.
In addition to their attack on the judgment, defendants challenge the trial court's award of costs. They argue that the award of costs was improper in that it included: (1) expert witness fees; (2) costs for trial exhibits, photocopies, court reporter fees, and deposition transcripts that plaintiffs failed to prove were necessary; and (3) witness fees over the statutory maximum and fees for party witnesses.
Plaintiffs cross-appeal, arguing that the trial court erred by offsetting the damage award by the amount plaintiffs obtained from the cargo owners through settlement.
We review findings of fact made by an admiralty trial court for clear error. Resner v. Arctic Orion Fisheries, 83 F.3d 271, 273 (9th Cir.1996). We also review for clear error a finding that a party did or did not breach a duty of care. Vollendorff v. United States, 951 F.2d 215, 217 (9th Cir.1991). Evidentiary rulings are reviewed for an abuse of discretion, and we will not reverse absent some prejudice. EEOC v. Pape Lift, Inc., ...
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