Weyerhaeuser Co. v. Atropos Island
| Decision Date | 06 February 1986 |
| Docket Number | 84-3914 and 84-4026,Nos. 84-3707,s. 84-3707 |
| Citation | 777 F.2d 1344 |
| Parties | WEYERHAEUSER COMPANY, a corporation, Plaintiff-Appellant, v. Vessels ATROPOS ISLAND and CYNTHIA, et al., Defendants-Appellees. (Two Cases). WEYERHAEUSER COMPANY, a corporation, Plaintiff-Appellee, v. Vessel ATROPOS ISLAND, etc., et al., Defendants, and Vessel CYNTHIA, its engine, tackle, gear and furnishings, etc., in rem; Evergreen Shipping Co., Ltd.; and Cynthia Maritima Corporation., foreign corporations, Defendants-Appellants. CYNTHIA MARITIMA CORPORATION, and Evergreen Shipping Co., Ltd., Plaintiffs- Appellants, v. The Vessel M/V ATROPOS ISLAND and A.S. Line K.K., a foreign corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Floyd A. Fredrickson, John Dudrey, Williams, Fredrickson, Stark, Hiefield, Norville & Weisensee, P.C., Portland, Or., for Weyerhauser.
M. Christie Helmer, Miller, Nash, Yerke, Wiener & Hagar, Portland, Or., for Vessel M/V Atropos & A.S. Line K.K.
Erskine B. Wood, John M. Cowden, Wood, Tatum, Mosser, Brooke & Holden, Portland, Or., for defendants-appellees.
Appeal from the United States District Court for the District of Oregon, Portland.
Before BROWNING and ALARCON, Circuit Judges, and STEPHENS, * District Judge.
This admiralty action arises out of a severe storm on the Columbia river. The storm caused two ships, the Cynthia and the Atropos Island, to move from the place they were anchored and to damage the docks of Weyerhaeuser Company. The district court exonerated Atropos Island of any liability and held Cynthia liable for some, but not all, of the damages to Weyerhaeuser's docks. Both Weyerhaeuser and Cynthia appeal. We affirm the judgment holding the Cynthia liable for damages and that the Atropos Island was not liable. We remand for a determination of the amount of monetary damages attributable to the impairment caused by the Cynthia to the non-integral parts of the docks.
On November 13, 1981, the M/V Cynthia was at anchor in the Columbia river, upstream from several docks owned by Weyerhaeuser Company. The lumber barge Miami was secured to Weyerhaeuser's barge dock by four or five mooring lines. Shortly after midnight, the M/V Atropos Island anchored just upstream from Cynthia.
During the early hours of November 14, a strong wind came up. The wind caused both Cynthia and Atropos Island to drag anchor, resulting in two sets of allisions between the two ships, the docks, and the Miami. 1
The first set of allisions began when Cynthia struck Weyerhaeuser's cargo dock at about 2:25 a.m. At about 2:40 a.m., Cynthia struck the Miami, resulting in damage to the barge dock and causing all but one of the Miami's mooring lines to break. Two or three of the Miami's mooring lines were subsequently reattached to the docks. One mooring line was run from Cynthia to the docks. Cynthia was also secured by its starboard anchor and by a corner of the Miami which was impaled in Cynthia's hull.
The second set of allisions began at about 6:20 a.m. when Atropos Island allided with Cynthia. This allision caused both Cynthia and Miami to break free from their moorings, resulting in further damage to the barge dock. Cynthia also struck and damaged a small wooden mooring dolphin.
Atropos Island moved downstream and anchored.
After a bench trial, the district court exonerated Atropos Island of any liability to Weyerhaeuser. The court found that the exceptionally high winds constituted an "Act of God," and that Atropos Island's crew used reasonable care under the circumstances to prevent the allisions.
The district court also exonerated Cynthia of liability for damages from the second allisions on the ground that Cynthia would have remained moored next to the Miami if Atropos Island had not struck Cynthia. The court held Cynthia liable for damages to Weyerhaeuser's docks from the first allisions, however. The court found that Cynthia's crew failed to take proper precautions between midnight and 2 a.m. in face of the approaching storm, such as awakening the captain, turning on the radar, or readying the engines. The court also noted that there was testimony that Cynthia began dragging anchor before 2 a.m., but Cynthia's captain did not notice this fact until 2:20 a.m.
Weyerhaeuser made a post-trial motion for an additional finding of fact concerning its claim that, sometime during the night, Atropos Island struck and damaged its log boom dolphins. The district court denied this motion. The court also dismissed a separate action by Cynthia against Atropos Island, based on its finding that Atropos Island used reasonable care.
Weyerhaeuser appeals both the denial of its post-trial motion and the district court judgment exonerating Atropos Island and Cynthia of liability for damages from the second allisions. Weyerhaeuser contends that the district court used the wrong standard of care; that the district court clearly erred in finding that Atropos Island was not negligent; and that the district court erroneously found that Cynthia's negligence did not proximately cause the damages from the second allisions. On cross-appeal, Cynthia contends that the district court clearly erred by finding that it failed to use reasonable care to prevent the first allisions, and that the district court should have reduced the amount of damages from the first allisions by the extent that damaged parts of the docks had depreciated in value. For the reasons stated below, we affirm regarding liability but remand for further proceedings concerning the issue of damages.
When a vessel breaks free from its moorings and strikes a stationary object, there is a presumption that the vessel is at fault. See The Louisiana, 3 Wall 164, 173, 70 U.S. 164, 173, 18 L.Ed. 85 (1865); The President Madison, 91 F.2d 835, 837 (9th Cir.1937). Because of this presumption, the district court required Cynthia and Atropos Island to prove by a preponderence of the evidence that they used reasonable care under the circumstances to avoid hitting Weyerhaeuser's docks. Weyerhaeuser argues that the district court should have applied a higher standard than reasonable care under the circumstances.
The proper standard of care is a legal conclusion subject to de novo review. Berg v. Chevron, 759 F.2d 1425, 1429 (9th Cir.1985). We hold that the district court properly applied a reasonable care standard.
Weyerhaeuser relies primarily on the Supreme Court's statement in The Louisiana, 3 Wall. at 173, 70 U.S. at 173, that a moving vessel which strikes a stationary object is liable unless it proves that the allision "was the result of inevitable accident, or a vis major, which human skill and precaution, and a proper display of nautical skill could not have prevented." We find this test fully consistent with the reasonable care standard applied by the district court. The phrase "human skill and precaution, and a proper display of nautical skill" is essentially synonomous with "reasonable care under the circumstances." Thus, Cynthia and Atropos Island could not have used reasonable care under the circumstances unless they also used proper nautical skill and precautions to avoid the allisions.
Case law supports our interpretation of The Louisiana. Four years after The Louisiana, in a case involving a collision between two moving vessels, the Supreme Court specifically stated that the inevitable accident defense does not require use of the The Grace Girdler, 7 Wall 196, 203, 74 U.S. 196, 203, 19 L.Ed. 113 (1869). In later cases, the Supreme Court used phrases analogous to "reasonable care under the circumstances," such as "due care," "proper care," and "proper precautions." See The Virginia Ehrman and The Agnese, 7 Otto 309, 313, 315, 97 U.S. 309, 313, 315, 24 L.Ed. 890 (1877); The Clarita and The Clara, 23 Wall. 1, 11-13, 90 U.S. 1, 11-13 (1874); The Mabey and Cooper, 14 Wall. 204, 215, 81 U.S. 204, 215, 20 L.Ed. 881 (1871). The decisions of our court, although not precisely defining the standard of care, are also consistent with a reasonable care standard. 2 Further, several other courts have expressly adopted a reasonable care standard. 3
Alternatively, Weyerhaeuser argues that even if the proper standard is reasonable care under the circumstances, this standard is more stringent than the "ordinary" reasonable care standard. This argument is meritless. Although the amount of care that is reasonable depends on the circumstances, the standard itself does not change. The Fifth and Second Circuits have stated that the moving vessel has a heavy burden of showing that it used reasonable care. Petition of United States, 425 F.2d at 995; The Charles H. Sells, 89 F.2d at 633. This language, however, merely refers to the presumption that the moving vessel is at fault, and does not impose a higher standard of reasonable care than the ordinary standard.
The district court required Cynthia and Atropos Island to prove by a preponderance of the evidence that they used reasonable care. The district court relied on the admiralty rule that a moving vessel that hits a stationary object is presumptively at fault, and thus bears the burden of proof and not merely of production. The district court correctly applied the law of this circuit. Carr v. Hermosa Amusement Corp., 137 F.2d 983, 985 (9th Cir.1943), cert. denied, 321 U.S. 764, 64 S.Ct. 520, 88 L.Ed. 1060 (1944); People of California v. Italian Motorship Ilice, 534 F.2d 836, 840 (9th Cir.1976); Ishizaki Kisen Co. v. United States, 510 F.2d 875, 880 (9th Cir.1975); accord Florida Fast Coast Railway Co. v. Revilo Corp., 637 F.2d 1060, 1065-66 (5th Cir.1981).
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