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In re Catalina Cruises, Inc.

In re Catalina Cruises Inc., 137 F.3d 1422, 98 Cal. Daily Op. Serv. 1709 (9th
Cir. 03/10/1998)

U.S. Court of Appeals, Ninth Circuit
No. 96-56217
137 F.3d 1422
March 10, 1998

IN RE: CATALINA CRUISES, INC., IN THE MATTER OF THE PETITION OF
CATALINA CRUISES, INC., AS OWNERS OF THE MOTOR VESSEL "CATALINA COUNTESS" FOR EXONERATION
FROM OR LIMITATION OF LIABILITY. CATALINA CRUISES, INC., PETITIONER-APPELLANT, v. JULIE LUNA;
BARTOLOME ALCALA; LISA BOLTON; MONIQUE BROWN; SYLVIA BROWN; DAWN DYER; WILLIAM
GROVES; EDWARD PIERCE; MELONY PIERCE; ANTHONY TIDWELL;
JAMES TOLBERT; SHARON WASHINGTON; CAPRICE WINSTEAD; LUKE BRUNET; DENA DECK; KIRSTEN DECK;
ALEX HEIDHARIAN; KAMRAN HEIDHARIAN; MEGASHIA JACKSON; DARRYL KING; ANA MUNOZ; JAN
TSJIOE; ELISA UGARTE; JOE YUAN; KEVIN YOUNG; TYRONE YOUNG; BARTOLOME ALCALA; VALERIE A.
JORDAN; CLEVELAND WASHINGTON; TONI WASHINGTON; WAYNE LAIRD; ADOLPHUS EDMOND,
CLAIMANTS-APPELLEES.

Appeal from the United States District Court for the Central
District of California A. Andrew Hauk, Senior District Judge, Presiding

D.C. No. CV-94-05444-AAH (JGx) Argued and Submitted November 3,
1997--Pasadena, California

Walter Klein, Wilner, Klein & Siegel, Beverly Hills, Califor- nia,
for the petitioner-appellant. Steven Unger, Law Offices of Steven H.
Unger, Beverly Hills, California, for the claimants-appellees.

Before: Floyd R. Gibson,* Alex Kozinski, and Stephen S. Trott,
Circuit Judges.

The opinion of the court was delivered by: Opinion by Judge Gibson

FOR PUBLICATION
SUMMARY

GIBSON, Circuit Judge:

Catalina Cruises, Inc. ("Catalina Cruises") appeals the dis- trict
court's judgment, following a bench trial, that Catalina Cruises operated
its passenger-carrying vessel, the M/V CATALINA COUNTESS (the
"COUNTESS"), in a negligent manner. We affirm.

I. BACKGROUND

The COUNTESS is a 127-foot passenger vessel, inspected and
certified by the Coast Guard for operation between Long Beach, California
and Catalina Island. The COUNTESS is certified to carry a maximum of 793
passengers. The vessel consists of an enclosed main deck; a first deck
with both open and enclosed portions; and a second deck which is fully
unenclosed.

On April 24, 1994, the COUNTESS was under the command of Captain
Donald Martin, an experienced vessel "master" or "operator" who had been
licensed by the United States Coast Guard for thirty years. That morning,
he reported for work, prepared the vessel for crossing, and checked the
weather. The National Oceanic and Atmospheric Administration ("NOAA")
forecast called for winds from the west to northwest at 15-25 knots, with
five foot seas, and swells from the west at a height of five feet. The
marine weather forecast for the morning called for a small craft advisory.
The First Mate, Denny Dennis, noted that it was windy with turbulent sea
conditions.

The COUNTESS left Long Beach at approximately 9:00 a.m. The vessel
arrived in Avalon, on Catalina Island, at 10:55 a.m., and all passengers
disembarked. The COUNTESS then made its way north along the Catalina coast
to Toyon Bay, where 121 passengers boarded. The group consisted pri-
marily of campers and their chaperons. At 11:55 a.m., the vessel
returned to Avalon where 198 additional passengers boarded. Dennis met
with the chaperons to inform them that the crossing would be "rough." The
whitecaps in the channel were more prevalent than they had been in the
morning crossing, indicating a significant increase in wind speed.
Captain Martin did not contact the Harbor Master in Avalon for a more
recent weather report prior to leaving Avalon. The Countess began its
return trip to Long Beach at approximately 12:25 p.m.

Captain Martin sailed north up the coast of Catalina toward Long
Point. This route allowed the COUNTESS to travel in the lee of the island
until, by executing a starboard turn, Captain Martin could travel
"downhill" with the swells. It was his intention to keep the wind, waves,
seas and swells primarily on the aft port quarter, resulting in a more
comfortable ride for the passengers, as opposed to the direct course from
Ava- lon to Long Beach, which was the regular route. At 12:45 p.m., the
COUNTESS was approximately one and one-half miles off Long Point. It was
then that Captain Martin began to execute the starboard turn to head for
the mainland.

Before the COUNTESS had cleared the lee of the island, Dennis had
been in radio communication with the captain of a passing sister ship, the
CATALINA MONARCH, which was on its way to Avalon, having left Long Beach
at 12:00 p.m. with no passengers. The captain of the MONARCH informed
Dennis that the ride from Long Beach had been miserable, relating that
the MONARCH had, mid-channel, experienced winds from the west at 30-35
knots and heavy seas and swells from the west at eight to twelve feet
high. Dennis did not relay this information to Captain Martin.

On the COUNTESS'S return trip, the wind blew at speeds of 25-30
knots from a west, northwest direction, with occasional gusts of up to
35 knots, and waves ranging from five to ten feet high could be seen
breaking against the vessel. Although Captain Martin was not monitoring
the NOAA weather channel during the trip, he observed that the weather
conditions had deteriorated from those seen during the morning crossing.
Dennis testified that the weather was very windy and that the swells were
almost on the beam of the vessel, causing the COUNTESS to roll at angles
from 20 to 30 degrees.

Several claimants testified that the vessel experienced bad rolls
for approximately thirty minutes before a huge wave struck the vessel and
broke a window. The waves that were breaking on the vessel ranged in
estimated height from five to ten feet. Just before the window broke, a
set of larger and more violent swells descended upon the beam of the
COUNTESS, causing the vessel to roll severely several times. A larger
wave then struck the COUNTESS broadside, causing the window to shatter.

Passengers seated on the unenclosed portion of the first deck were
washed from their seats, and the force of the water carried them across
the deck. Some passengers on the main deck, where the window shattered,
were also washed from their seats. As the swell passed under the port side
of the ship, the vessel lurched hard back to starboard, throwing a number
of passengers not struck by the water onto the deck.

Upon learning of the broken window and passenger injuries,
Captain Martin immediately reduced the speed of the vessel, obtained a
first aid kit, and turned the helm over to Dennis. Captain Martin then
went to the main deck to survey the damage and administer first aid.
Approximately ten minutes later, while in the midst of surveying the
decks, Captain Martin radioed Dennis and instructed him to alter course so
that the vessel would be headed in a more easterly direction.

This alteration immediately alleviated the severity of the roll-
ing, and the ride became much smoother.

On August 10, 1994, Catalina Cruises filed a petition seeking
limitation of or exoneration from liability pursuant to 46 U.S.C. SS App.
181-196 (1994), and Rule F of the Federal Rules of Civil Procedure
Supplemental Rules for Certain Admiralty and Maritime Claims. Magistrate
Rupert J. Groh, Jr. directed all potential claimants to file their claims
by Octo- ber 10, 1994. Thirty-two claimants filed, contending that Cat-
alina Cruises negligently operated the COUNTESS. Following a bench trial,
Senior District Judge A. Andrew Hauk determined that Catalina Cruises
operated the COUNTESS in a manner which breached its duty of care to the
passengers. The issues of causation and damages are to be determined in
a later trial. Catalina Cruises appeals the district court's finding that
it breached its duty of care. We affirm.

II. DISCUSSION

On appeal, Catalina Cruises claims that the district court failed
to apply the correct standard of care,*fn1 and that, under the correct
standard of care, Captain Martin's handling of the COUNTESS was reasonable
under the circumstances. We review a district court's finding of
negligence for clear error. See Ludwig v. Pan Ocean Shipping Co., 941 F.2d
849, 850 (9th Cir. 1991). "The question whether the district court applied
the proper standard of care, however, is one of law and is, therefore,
subject to de novo review." Id.

[1] We conclude that the district court applied the proper
standard of care. The district court correctly noted that a shipowner
owes a duty of reasonable care to those aboard the ship

who are not crew members. See Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625, 630 (1959). In Kermarec, the Supreme Court
held that "the owner of a ship in navigable waters owes to all who are on
board for purposes not inimical to his legitimate interests the duty of
exercising reasonable care under the circumstances of each case." Id. at
632; accord Morton v. De Oliveira, 984 F.2d 289, 291 (9th Cir.), cert.
denied, 510 U.S. 907 (1993).

[2] The degree of care required is always that which is rea-
sonable, but the application of reasonable will of course change with the
circumstances of each particular case. The Second Circuit has described
the standard accurately:

What is required . . . is merely the conduct of the reasonable man
of ordinary prudence under the circumstances, and the greater danger, or
the greater responsibility, is merely one of the circumstances, demanding
only an increased amount of care. In some instances, reasonable care under
the circumstances may be a very high degree of care; in other instances,
it may be something less.

Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 170-71 (2d Cir.
1983) (internal quotations and citations omitted). The district court
correctly determined that the standard of care is one of reasonableness,
but in a situation such as this, where the risk is great because of high
seas, an increased amount of care and precaution is reasonable.

[3] Furthermore, the district court's finding that Catalina
Cruises breached this standard of reasonable care is not clearly
erroneous. The crew of the COUNTESS had significant information
regarding the weather they would encounter when crossing. The conditions
had steadily deteriorated throughout the morning hours and had not shown
any signs of improving. Captain Martin and Dennis were aware that the
crossing would be rough and that they could be facing rather severe wind
gusts. Knowing all this, Captain Martin ventured into this weather with
over 300 passengers on board, many of them young campers.

[4] During the voyage, the MONARCH radioed the COUNTESS and
informed Dennis that the MONARCH'S crossing had been miserable. Dennis
failed to inform Captain Martin of the conditions the MONARCH reported.
The COUNTESS continued to encounter rough seas, until a large wave caused
one of the vessel's windows to shatter. After the window shattered, and
water literally washed many passengers from their seats, Captain Martin
slowed the vessel and changed course so the ride would be more
comfortable. Many on board noticed an extreme change in the smoothness of
the ride.

[5] A person exercising reasonable care under the circumstances
would have slowed the vessel sooner, sought refuge at Long Point once he
realized the severity of the conditions, or decided not to risk venturing
out into the hazardous conditions at all. Accordingly, we hold that the
district court did not commit clear error in determining that Catalina
Cruises did not act with reasonable care under the circumstances of this
case.

III. CONCLUSION

Because we conclude that Catalina Cruises did not act with
reasonable care under the circumstances of this case, the district
court's judgment is AFFIRMED.

AFFIRMED.

Opinion Footnotes
*fn1 Catalina Cruises argues that, rather than applying the
standard of reasonable care under the circumstances, the district
court's language indicates that it applied a much higher standard of
care, and as a result held Catalina Cruises to a standard of almost
absolute liability.

************






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where passengers sue the cruise line for injury if the vessel encounters
severe winds, wave, storm or other condition?In the decision below,
thirty-two passengers filed claims against a vessel operator, contending
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weather conditions that included wind speeds of 25-30 knots, gusts of up
to 35 knots, and waves ranging from five to ten feet high. Issues included
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bring you to the maritime
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