Protectus Alpha Nav. Co., Ltd. v. North Pacific Grain Growers, Inc.

Decision Date08 August 1985
Docket NumberNo. 84-3912,84-3912
Citation1986 A.M.C. 56,767 F.2d 1379
PartiesPROTECTUS ALPHA NAVIGATION CO., LTD., Plaintiff-Appellee, v. NORTH PACIFIC GRAIN GROWERS, INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John R. Brooke, Wood, Tatum, Mooser, Brooke & Holden, Portland, Or., for plaintiff-appellee.

John A. Flynn, James G. Nebel, Graham & James, San Francisco, Cal., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before PREGERSON and FERGUSON, Circuit Judges, and CURTIS, * District Judge.

CURTIS, District Judge.

Appellant, North Pacific Grain Growers, Inc. (hereinafter "North Pacific" or appellant) appeals from a judgment of the district court for the District of Oregon awarding appellee Protectus Alpha Navigation Co., Ltd. (hereinafter "Protectus" or appellee) damages of $9,577,760, comprised of $7,045,000 in general damages, $2,032,760 in prejudgment interest, and $500,000 in punitive damages. The damages stem from a fire aboard the vessel M/V Protector Alpha (hereinafter "the Protector") which began while the Protector was refueling at North Pacific's dock facility.

FACTS

Protectus was the owner of the Protector, a bulk grain carrier of Cypriot registry. While the Protector was refueling at North Pacific's grain facility on the Columbia River, fire broke out aboard the vessel.

After the fire was discovered, the local Kalama Fire Department was called in to combat the fire, and firefighters and firefighting equipment from Cowlitz and Longview, two neighboring communities, were also brought in to assist in the effort. Soon thereafter, Coast Guard personnel arrived and a plan was formulated to extinguish the fire. By way of implementing the plan, quantities of film-forming foam and firefighting equipment were readied on the dock for use. As the flames were being brought under control, and at a point in time when, as several witnesses testified, the fire was within minutes of being extinguished, North Pacific's dock foreman Harry Swede Anderson arrived. Within five minutes of his arrival, and without consulting any of the firefighters, Anderson ordered the ship cast off from the dock. Chief Baxter and Assistant Chief Mesneak of the Longview Fire Department shouted to Anderson, directing him not to cast off the ship, but Anderson responded with obscenities and, with the help of another North Pacific employee, D. Van Skike, released the last line that held the ship to the dock.

Unable to manuever on her own smoke-choked engines, the vessel was cast hopelessly adrift, with several firefighters dangerously stranded aboard. The Protector was finally brought to rest on her anchor, which was dropped about one thousand yards downstream. Since the vessel was no longer accessible from the dock, where all of the firefighting equipment had been The court found that appellant's conduct in casting off the vessel constituted negligence per se. It also found that such conduct, in the light of the circumstances, was grossly negligent, and assessed punitive damages.

left behind, further efforts to extinguish the fire were doomed.

NEGLIGENCE PER SE

The court's holding that appellant's conduct constituted negligence per se was based upon its finding that the employees of appellant had violated Washington's Revised Code (WRC) Sec. 9A.76.020 and Uniform Fire Code Sec. 13.102, incorporated into Washington law by WRC Sec. 19.27.030(3).

WRC Sec. 9A.76.020, Obstructing a Public Servant, provides in part:

Every person who ... (3) shall knowingly hinder, delay, or obstruct any public servant in the discharge of his official powers or duties ... shall be guilty of a misdemeanor.

Uniform Fire Code Sec. 13.102 provides:

Any person who obstructs the operations of the Fire Department in connection with extinguishing any fire, or other emergency, or disobeys any lawful command of the chief or officer of the Fire Department who may be in charge at such a scene, or any part thereof, or any police officer assisting the Fire Department, shall be guilty of a misdemeanor.

North Pacific's first assertion is that Washington law is inapplicable because none of the responding fire departments had jurisdiction over a fire occurring aboard a ship on navigable waters. North Pacific argues that such jurisdiction is vested exclusively in the U.S. Coast Guard, whose authority is administered by the Captain of the Port. This contention is belied by the evidence. Captain Greiner, as Captain of the Port, prepared the Burning Ship Contingency Plan, which states that the Coast Guard's

interest in fighting fires involving vessels or waterfront facilities in or along the navigable waters of the United States, or in waters in which a resultant pollution hazard would threaten navigable waters of the United States or its resources, ... does not extend to preemption of local responsibility and authority for firefighting.

The Federal Fire Prevention and Control Act of 1974, 15 U.S.C. Secs. 2201(5) and 2209(a), further supports the proposition that Washington law is applicable.

North Pacific also argues that applicability of Washington law would destroy the uniformity of federal maritime law. However, in light of the fact that the Coast Guard's own plan envisioned local responsibility and authority for fires aboard ships, this argument is unpersuasive.

North Pacific also claims that the Washington statutes in question, by their preamble, title, and history, establish that they were designed to protect owners and occupants of buildings and adjoining structures and not foreign vessels on navigable waters. Specifically, North Pacific cites section 286 of the Restatement of Torts (Second) of 1975 for the proposition that section 13.102 of the Uniform Fire Code is inapplicable because the legislative purpose in incorporating the statute into state law was to set standards and specifications for fire protection in buildings.

Section 286 of the Restatement of Torts (Second) of 1975 provides that a court may adopt, as the standard of conduct of a reasonable man, the requirements of a statute or regulation whose purpose is (a) to protect the class of persons which includes the one whose interest is invaded; (b) to protect the particular interest which is invaded; (c) to protect that interest against the kind of harm which has resulted; and (d) to protect that interest against the particular hazard from which the harm results. Arguing that the Washington statutes cover buildings and not boats, appellant claims that the Washington statutes do not protect the "particular interest" which North Pacific employees allegedly invaded in casting the vessel adrift.

The district court rejected this contention and found the statute applicable to firefighting The purpose of this chapter is to provide building codes throughout the state. This chapter is designed to effectuate the following purposes, objectives, and standards:

operations on a dock. Judge Solomon looked to section 19.27.020 of the WRC, which sets out the purposes of Chapter 19 (the chapter incorporating the Uniform Fire Code into Washington Law). That section provides in part:

(1) To promote the health, safety, and welfare of the occupant or users of buildings and structures and the general public. (Emphasis added.)

Although we agree that the main purpose of the chapter is to provide building codes, the statute also is concerned with the health and safety of users of structures other than buildings. In casting the vessel adrift, in violation of firemen's orders, Anderson risked the safety of the firemen who were using the dock as a structure from which to fight the fire. Some were even stranded aboard the ship. Anderson jeopardized "the health, safety, and welfare of ... the general public" with which the statute is concerned.

The district court's finding of negligence per se is supported by an additional factor. Even if section 13.102 of the Uniform Fire Code were inapplicable, the court also found that North Pacific violated WRC Sec. 9A.76.020, which makes obstructing a public servant in the discharge of his official powers or duties a criminal misdemeanor. No argument can be made that section 9A.76.020 does not cover such obstruction when it occurs on a dock. The undisputable applicability of WRC Sec. 9A.76.020 would alone support a finding of negligence per se.

Finally, appellant contends that even if the above Washington statutes are applicable, the district court erred in failing to consider whether their violations should be excused. This contention is without merit. The district court considered in detail both the public and the private necessity defense. It concluded, as a factual determination, that North Pacific's acts were unreasonable and grossly negligent, and that the defenses (or excuses) of public and private necessity were unavailable.

CAUSATION

Appellant objects to the district court's apportionment of liability. The court found that 92.5% of the loss was sustained after the ship was set adrift, and therefore attributed that percentage of liability to North Pacific.

Appellant contends that the district court erred in ignoring principles of comparative negligence and apportioning damages based on its view of causation, rather than culpability. Appellant cites United States v. Reliable Transfer Co. Inc., 421 U.S. 397, 411, 95 S.Ct. 1708, 1716, 44 L.Ed.2d 251 (1975), where the Supreme Court first applied comparative fault to maritime collisions, for the proposition that damages must be apportioned according to the compartive degree of fault of the parties, rather than causation. See also Pan-Alaska Fisheries, Inc. v. Marine Construction & Design Co., 402 F.Supp. 1187, 1188 (W.D.Wash.1975), vacated on other grounds, 565 F.2d 1129 (9th Cir.1977). Thus, as the argument goes, the district court's division of damages is legally incorrect in that it fails to recognize that...

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