Opinion
No. C03-166Z.
February 28, 2006
OPINION
This matter comes before the Court on remand from the Ninth Circuit Court of Appeals by Memorandum of September 6, 2005, Case No. 04-35469. Mandate of USCA, docket no. 131. After reviewing the parties' briefs in support of, and opposition to, the application of the Limitation on Liability Act, 46 U.S.C. app. § 183 (1952 Supp. 2005), and hearing the argument of counsel on January 27, 2006, the Court enters the following Order. BACKGROUND
Plaintiff Washington State Department of Transportation (the "State") brought this action to recover damages resulting from a vessel allision. In the early hours of July 29, 2000, a tugboat operated by Defendant Sea Coast Towing, Inc. ("Sea Coast") was pushing a barge on Lake Washington when the barge struck and damaged a piling supporting the State Route 520 bridge ("520 bridge"). Finding of Fact ("FOF") 9, docket no. 98. The State owns, operates and maintains the 520 bridge. Id. at 8. The State brought claims against Sea Coast in this Court for negligence, gross negligence, and trespass. Docket no. 1. The case concluded with a bench trial in which the principal issues were whether the captain of the vessel, Myron Kjos, was negligent in falling asleep at the helm and whether Captain Kjos was negligent in violating regulations prohibiting individuals from working more than 12 hours in a 24-hour period. See 46 U.S.C. § 8104(h); 46 C.F.R. § 15.705(d); Conclusions of Law ("COL"), docket no. 98.
After trial, the Court concluded that Captain Kjos was negligent in maintaining a proper watch, which violated Rule 5 of the International Regulations for Prevention of Collisions at Sea, 33 U.S.C. § 1602. COL 8. The Court further concluded that Captain Kjos' negligence in failing to maintain a proper lookout was the sole proximate cause of the allision. COL 10. Under the Limitation of Liability Act, 46 U.S.C. App. § 183, the Court then shifted the burden to Sea Coast to demonstrate that it had no privity of actual or constructive knowledge as to the cause of the allision. COL 9-10. Examining the relevant case law, the Court concluded that Sea Coast did not have knowledge of Captain Kjos' failure to maintain a proper lookout because Sea Coast demonstrated that Captain Kjos was competent. COL 12-14. Thus, Sea Coast was entitled to limit its liability for the allision to the value of the vessel ($105,000).
The Court found that the State did not prove by a preponderance of the evidence that Captain Kjos violated the 12-hour limitation. FOF 27. The Court relied on the testimony of Captain Kjos and the vessel work logs, which it found were poorly kept. FOF 28. While the Court concluded that Sea Coast was negligent in issuing a company policy at odds with the 12-hour work limitation and failing to adequately maintain its logs, the Court also concluded that the State failed to prove that this negligence was a proximate cause of the allision. COL 11. Because there was no 12-hour violation, the burden did not shift to Sea Coast to show that it lacked knowledge of such a 12-hour violation. COL 11-12.
On September 6, 2005, the Ninth Circuit entered a Memorandum remanding the case back to this Court to further address the 12-hour work limitation. Docket no. 137-3. Citing several of the same cases relied upon by this Court in its Conclusions of Law, the Ninth Circuit's Memorandum appears to adopt the same underlying principles of burden shifting under the Limitation of Liability Act. Mem. at 2-3. However, the Ninth Circuit held that this Court erred in applying the burden shifting at trial.
DISCUSSION
The Ninth Circuit's Memorandum first acknowledges the general rule that a claimant has the burden of establishing the specific negligent act that caused the harm before the burden shifts to the defendant under the Limitation of Liability Act. Id. (citing In re Bowfin M/V, 339 F.3d 1137, 1138 (9th Cir. 2003)). The Memorandum also noted that the reason for placing the initial burden on the claimant is to prevent the defendant from being forced into speculating as to which of many potential causes it must rebut after the burden shifts. Finally, stating that "the only disputed factual contention . . . was the possibility that [Captain Kjos] had worked in excess of 12 hours," the Ninth Circuit reasoned that the burden shifts to Sea Coast because Sea Coast was not required to speculate as to the alleged negligence.Id. at 4 (emphasis added). The Memorandum concluded: "[T]he only disputed factual contention was whether Sea Coast was neither privy to nor had knowledge of any violation by Kjos of the 12-hour work limitation. Sea Coast was not entitled to limit its liability without first satisfying this burden of proof."Id. at 6 (emphasis added). Thus, as this Court interprets the Memorandum, the reference to "this burden of proof" appears to require Sea Coast to prove by a preponderance of the evidence (1) that no 12-hour violation occurred in the 24 hours preceding the allision and (2), if Sea Coast cannot make such a showing, that it lacked privity of knowledge of a 12-hour violation.
Logically, this new burden shifting scheme appears difficult to apply; if Sea Coast failed to prove the absence of a 12-hour violation, such a failure would not establish that a violation actually occurred. Thus, under the second prong of the analysis, Sea Coast could be required to prove that it lacked privity of knowledge as to an event that may or may not have occurred. Presumably, this is why courts have traditionally required claimants to first prove the existence of the negligent act before the burden shifts to the defendant to establish a lack of privity of knowledge as to that act. Nonetheless, the Court need not address this problematic aspect of the issue on remand because, as discussed below, Sea Coast has established the absence of a violation based on the evidence before the Court.
Sea Coast contends that the same evidence supporting the Court's finding that the State could not establish the existence of a 12-hour violation (FOF 28) is sufficient to prove that, in fact, no 12-hour violation occurred. Specifically, Sea Coast relies on the testimony of Captain Kjos and his reliance on the daily log entries for July 28 and 29 to aid in his memory of the events. In response, the State argues that Captain Kjos' testimony was contradicted by his deposition testimony, not supported by an analysis of the handwriting on the log entries, and unhelpful based on his lack of certainty concerning the days preceding the day of the allision. The State also argues that the 12-hour violation is not the only issue before the Court on remand. The State requests that the Court consider whether Sea Coast's policies and safety procedures were themselves a cause of Captain Kjos falling asleep at the helm, regardless of a 12-hour violation.
1. Violation of the 12-Hour Limitation
The Court determined that, as a factual matter, the State could not prove by a preponderance of the evidence that Captain Kjos violated the 12-hour limitation. FOF 28. The question now is whether the Court should reach the same result given the shift in burden from the State to Sea Coast. Sea Coast argues that the same evidence the Court used to find that the State could not establish the existence of a 12-hour violation is sufficient for Sea Coast to establish the absence of a 12-hour violation. Sea Coast relies primarily on the testimony of Captain Kjos and the work logs of the vessel for the 24 hours preceding the allision. At trial, Captain Kjos stated explicitly that he did not work more than 12 hours in the 24-hour period prior to the allision:
THE COURT: Can you tell us in the 24-hour period prior to the accident here that we're involved with were you on watch more than 12 hours in that 24-hour period, sir?
KJOS: No.
. . .
KJOS: No. He asked me that if I — in the previous 24 hours before my accident if I was on watch more than 12 hours, and I said no.
Bitseff Decl., docket no. 136, Ex. A (Kjos Testimony at 38).
Furthermore, Captain Kjos was questioned at trial about the critical period in dispute from Vashon Head at 0745 to Point Defiance at 0935. As the Court previously found, if Captain Kjos worked during this period, he worked approximately 12.45 to 12.95 hours but, if he did not work during this period, he worked only 10.65 to 11.15 hours. FOF 28. At trial, Captain Kjos was asked directly whether he worked during this time period and responded as follows:
QUESTION: 0935 the next entry was Point Defiance . . . Would you have been on watch between Point Vashon and Point Defiance?
KJOS: No.
Id. (Kjos Testimony at 92) (emphasis added).
The State contends that this testimony was contradicted by Captain Kjos' deposition testimony, in which the following exchange took place:
SLOAN: The next entry is 0745, 7:45 in the morning, of July 28, 2000. It appears to read "Vashon . . . Head." Was that your entry?
KJOS: It was.
SLOAN: And were you on watch then?
KJOS: I don't know.
Docket no. 137, Ex. 7 (Kjos Dep. at 53-54). The State's reliance on the deposition testimony is misplaced. Captain Kjos' uncertain deposition testimony refers only to a specific point in time (0745), while his trial testimony speaks to the entire period in dispute (0745 to 0935). There is no contradiction.
Next, the State argues that Captain Kjos lacked credibility because his testimony that one or more of the daily log entries were not his is contradicted by an analysis of the handwriting. The State invites the Court to analyze the handwriting on the daily log for July 28, 2000, and find that the entries for 1120, 1310, and 1540 are in the hand of Captain Kjos. The three entries occurred during a time when Captain Kjos testified that he was off-watch. While the State makes a compelling argument based on the plain appearance of the handwriting, the Court declines to place itself in the position of serving as a handwriting expert. Moreover, the testimony at trial was clear in indicating that log entries were not necessarily made by the individual on watch at the time. Thus, even if the State were correct about the handwriting, it would show only that Captain Kjos was mistaken in testifying that the handwriting was not his.
In FOF 28, the Court stated that "[t]he log entries for both 0745 and 0935 (Exhibit 48) on July 29 were in the handwriting of the mate." The parties agree that Captain Kjos testified that the log entry for 0745 on July 28, 2000, was in his own handwriting, not that of the mate. Given this clarification, the Court takes this opportunity to amend FOF 28. The Court finds that the log entry for 0935 on July 28, 2000, was in the handwriting of the mate and, per his testimony, the entry for 0745 was in the handwriting of Captain Kjos. This finding does not alter the Court's analysis of the legal issues on remand.
Finally, the State relies on several exchanges at trial in which Captain Kjos used the word "conjecture" with regard to estimating the number of hours he worked based on the daily logs:
THE COURT: Is there any way from looking at [the master log] itself to know exactly when you worked and when you didn't [on July 24th]?
KJOS: No, because it isn't — I'm not — where it says — I could put my initials in over here, each time these points were logged, there's nobody — nobody's logged any points they went by or anything. There's no way to prove. It would be just conjecture on my part or anybody else's.
. . .
SLOAN: Bringing your attention to the master's daily report for July 25th of 2000?
KJOS: I couldn't tell you. I could try to tell you, but it would be conjecture on my part. . . .
SLOAN: So from looking at the master's daily report for July 26, do you have a way of calculating the number of hours you worked?
KJOS: I could go through it and try for you, but I — I'm pretty — it would be conjecture on my part.
Docket no. 137, Ex. 1 (Kjos Testimony at 23-25) (emphasis added). The State maintains that these exchanges demonstrate that Captain Kjos was largely uncertain about the number of hours he worked and, therefore, not a credible witness.
The Court declines to give weight to these exchanges in evaluating Captain Kjos' testimony regarding the 24 hours immediately preceding the allision. Each of the questions refer to days (July 24, 25, and 26) before the 24 hours preceding the allision (July 28-29), and none of Captain Kjos' answers involved the careful evaluation of the daily logs he undertook for July 28-29. Accordingly, the Court finds these exchanges irrelevant to the question of whether Captain Kjos violated the 12-hour limitation in the 24 hours preceding the allision.
In sum, the evidence regarding the 12-hour issue is minimal and one-sided. At trial, Captain Kjos offered direct and specific testimony that he was not on watch during the critical period from 0745 to 0935 on July 28, 2000, and that he did not work more than 12 hours in the 24 hours preceding the allision. This testimony is not contradicted by Captain Kjos' deposition, the daily logs, or any other meaningful source. Accordingly, the Court finds that Sea Coast has met its burden of proving by a preponderance of the evidence that Captain Kjos did not violate the 12-hour work limitation in the 24 hours preceding the allision.
The Court recognizes that the State's expert, Cecil Gray, testified at trial that his evaluation of the daily logs led to his opinion that Captain Kjos did violate the 12-hour limitation. However, the Court previously found that Cecil Gray's testimony was directly contradicted by his deposition. FOF 28. The Court will not re-evaluate that finding.
2. Privity of Knowledge
Because the Court finds that Sea Coast has proved the absence of a 12-hour violation by a preponderance of the evidence, the Court need not determine whether Sea Coast had privity of actual or constructive knowledge. There can be no knowledge of an event that did not occur.
3. Other Issues on Remand
In its brief and argument before the Court, the State suggests that the issues on remand are not limited to questions of whether a 12-hour violation occurred and, if a violation occurred, whether Sea Coast had privity of knowledge of such a violation. The State contends that this Court should also revisit its conclusion that Sea Coast did not have privity of knowledge of Captain Kjos having fallen asleep on watch. State's Br. at 19-21. Specifically, the State asks the Court to conclude that Sea Coast's record-keeping procedures and employee surveys placed Sea Coast on notice that fatigue was a problem likely to result in crewmen falling asleep on watch.
The Court declines to address this argument for two reasons. First, the Court previously concluded that Captain Kjos' negligence in falling asleep was the sole proximate cause of the allision and that Sea Coast did not have privity of knowledge as to that negligence. COL 10, 13-15. The Court also concluded that Sea Coast's misinterpretation of Coast Guard regulations and poor log-keeping practices were not causes of the allision. COL 11. The Court has resolved the issues the State now seeks to raise. Second, the Ninth Circuit's Memorandum does not instruct the Court to re-examine these conclusions. The Memorandum speaks only to the 12-hour violation issue. CONCLUSION
The only direct evidence regarding the 12-hour violation claim was provided by Captain Kjos, who testified that he did not work more than 12 hours in the 24 hours preceding the allision of July 29, 2000. Captain Kjos also testified that he did not work between 0745 and 0935 on July 28, 2000. Captain Kjos' testimony was not contradicted by his deposition, the daily log entries, or Captain Kjos' trial testimony concerning July 24, 25, and 26. Based on this evidence, the Court finds that Sea Coast proved the absence of a 12-hour violation by a preponderance of the evidence. Therefore, Sea Coast is entitled to limit its liability subject to the Limitation of Liability Act, 46 U.S.C. app. § 183 (1952 Supp. 2005).
IT IS SO ORDERED.