Mathes v. the Clipper Fleet, 84-6122

• Decision Date: 22 October 1985
• Docket Number: No. 84-6122,84-6122
• Citation: 774 F.2d 980
• Parties: 19 Fed. R. Evid. Serv. 577 Jack MATHES, Plaintiff-Appellant, v. THE CLIPPER FLEET, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 980

774 F.2d 980

19 Fed. R. Evid. Serv. 577

Jack MATHES, Plaintiff-Appellant, v. THE CLIPPER FLEET, etc., et al., Defendants-Appellees.

No. 84-6122.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 6, 1985.

Decided Oct. 22, 1985.

Jeffrey B. Harrison, John Elson, Harrison & Elson, Los Angeles, Cal., for plaintiff-appellant.

David McLeod, Lillick, McHose & Charles, Los Angeles, Cal., Wilner, Narwitz, Lewin & Klein, Samuel Wilner, Wendy Berkowitz, Beverly Hills, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before SNEED, NELSON, and NORRIS, Circuit Judges.

NORRIS, Circuit Judge:

Appellant Jack Mathes is a seaman who brought this action under the Jones Act, 46 U.S.C. Sec. 688 (1985), and general maritime law to recover damages for personal injury suffered while he was working aboard ship. The jury found in favor of both defendants. On appeal Mathes argues that the district court committed error in refusing to instruct the jury on the the so-called Pennsylvania Rule (The Pennsylvania, 86 U.S. [19 Wall.] 125, 22 L.Ed. 148 (1873) ), and on the theory of negligence per se, as well as in refusing to admit certain testimony. We affirm.

I

Mathes was employed by defendant Western Boat Operators ("Western") as a mate on the supply boat Low Tide. On October 20, 1982, the Low Tide was moored to an off-shore oil platform in the Santa Barbara Channel. The Low Tide sent a radio call to the Clipper Larry asking it to come around to the platform and receive some packages from the Low Tide. The Clipper Larry is a vessel owned by defendant The Clipper Fleet, Inc. ("Clipper Fleet").

Stephen James, Captain of the Clipper Larry, responded to the radio call from the Low Tide and brought his vessel around the platform. He backed the Clipper Larry stern to the starboard side of the Low Tide. As the mate, Mathes was in charge of the operation of passing boxes over to the Clipper Larry. Mathes positioned himself precariously on the edge of the Low Tide and, when the Clipper Larry rode up on an ocean swell, his foot was pinned between the vessels. As a result of the accident, he suffered injury to his left ankle.

Mathes sued Clipper Fleet under general maritime law, alleging that it negligently failed to use proper loading operations, that it negligently controlled the Clipper Larry, and that the vessel was improperly manned and without a licensed skipper. Clipper Fleet denied the allegations, contesting Mathes's interpretation of the pertinent United States Coast Guard regulations, maintaining that the method employed by the crew of the Clipper Larry was safe, and that Mathes's own negligence was the sole cause of his injury.

Mathes sued Western under both the Jones Act and maritime law, alleging that the captain of the Low Tide, Bob Levy, was negligent and rendered the Low Tide unseaworthy in failing to prevent Mathes from loading in an unsafe manner. Western denied the allegations, and argued that Mathes's own negligence was the sole cause of his injury.

II

Under the Pennsylvania Rule of maritime law, when a vessel operated in violation of a statute is involved in an accident,

the burden rests upon the ship of showing not merely that her fault may not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.

The Pennsylvania, 86 U.S. [19 Wall.] 125, 136, 22 L.Ed. 148 (1873). The Pennsylvania Rule has often been applied in this circuit. See, e.g., Waterman Steamship Corp. v. Gay Cottons, 414 F.2d 724, 736 (9th Cir.1969); States Steamship Co. v. Permanente Steamship Corp., 231 F.2d 82, 86 (9th Cir.1956); The Denali, 105 F.2d 413, 418 (9th Cir.1939), cert. denied, 311 U.S. 687, 61 S.Ct. 65, 85 L.Ed. 444 (1940); The Princess Sophia, 61 F.2d 339, 347 (9th Cir.1932).

Mathes requested jury instructions on the Pennsylvania Rule based on the contention that the Clipper Larry's skipper did not have the local endorsement on his license as required by Coast Guard licensing regulations (46 C.F.R. Sec. 186.05-1, et seq. (1984) ). ¹ The district court ruled that the requirement was satisfied because another member of the crew had a local endorsement even if the skipper did not. We agree with the district court's interpretation of the regulations. ²

The regulations, on their face, do not require the skipper of a vessel to have a local endorsement. Rather they require a vessel to have "in her service and on board such complement of licensed personnel, and crew, as may, in the judgment of the Officer in Charge, Marine Inspector, be necessary for her safe operation." 46 C.F.R. Sec. 186.05-1(a) (1984). We agree with the Fourth Circuit, as did the district court below, that "[t]he regulation is designed to insure that there shall be on such a vessel a person whose competence to operate or direct its operations has been assured." Duty v. East Coast Tender Services, Inc., 660 F.2d 933, 947 n. ** (emphasis in original), rev'd on reh'g, 660 F.2d 946 (4th Cir.1981) (en banc), cert. denied, 455 U.S. 945, 102 S.Ct. 1442, 71 L.Ed.2d 657 (1982). Mathes proved only that the skipper of the Clipper Larry did not have a local endorsement; he did not prove that the Clipper Larry's certificate of inspection required the skipper to have a local endorsement, nor that the local endorsement requirement was not satisfied by the credentials of a deckhand, Kurt Holzhauer, as contended by Clipper Fleet. ³ Accordingly, we affirm the district court's ruling that the requirements of the regulations were satisfied by the credentials of Holzhauer.

Mathes also argues that the Pennsylvania Rule applies because Holzhauer did not have his credentials physically aboard ship as required by 46 C.F.R. Sec. 185.10 (1984). We agree with the district court that this violation does not bring into play the Pennsylvania Rule because there is no conceivable causal connection between the violation and the injury. As the Supreme Court said in The Pennsylvania itself, "[i]t must be conceded that if it clearly appears the fault could have had nothing to do with the disaster, it may be dismissed from consideration." 86 U.S. [19 Wall.] at 136. See also Gosnell v. United States, 262 F.2d 559, 563 (4th Cir.1959) ("where it [is] evident that the breach of a statutory duty ... did not cause the accident" the Pennsylvania Rule does not apply); Seaboard Tug & Barge, v. Rederi AB/Disa, 213 F.2d 772, 775 (1st Cir.1954) (in applying the Pennsylvania Rule, the courts "are limited to the reasonable possibilities") (quoting The Mabel, 35 F.2d 731, 732 (2d Cir.1929) ). ⁴

III

Mathes also claims that the asserted violations of the Coast Guard regulations entitled him to jury instructions on negligence per se. We agree with the district court's reasoning that the negligence per se rule is inapplicable for the same reasons that the Pennsylvania Rule is inapplicable, namely that Captain James's failure to have a local endorsement did not constitute a violation of the regulations and that Holzhauer's failure to have his locally endorsed license on board had no causal connection with Mathes's injury. The only relevant difference between the two theories is that the per se rule requires the plaintiff to prove causation whereas the Pennsylvania Rule shifts the burden of proof on causation to the defendant. California v. Italian Motorship ILICE, 534 F.2d 836, 840 (9th Cir.1976). Thus, if Mathes cannot invoke the Pennsylvania Rule, he cannot invoke the negligence per se rule.

IV

Mathes also challenges rulings of the district court limiting the testimony of two of his witnesses. Specifically, Mathes contends:

A. Captain John Blank should have been allowed to testify as to the scope of Coast Guard regulation:

B. Vincent Ochoa, a crewman aboard the Low Tide, should have been allowed to testify as to the custom and practice of loading operations; and

C. Blank should have been allowed to testify as to the duties of a captain to intervene and correct improper practices. ⁵

A. The district court did not abuse its discretion in excluding testimony by Captain Blank that the Coast Guard manning regulations were designed to avoid accidents resulting from an operator's unfamiliarity with the waters in which his vessel was operating. The interpretation of the regulations is not a question of fact for the jury to decide, but a question of law for the court to decide. Markair, Inc. v. C.A.B., 744 F.2d 1383, 1385 (9th Cir.1984).

B. We also hold that the district court did not abuse its discretion in foreclosing cross-examination of Vincent Ochoa, the cook on the Low Tide who had previously worked as a deckhand, regarding the custom and practice of transferring items from one vessel to another. ⁶ The district judge ruled first, that the testimony was beyond the scope of cross-examination and second, that Mathes's offer of proof failed to show that Ochoa had sufficient experience to qualify him to testify "on whether you...