NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY HOLZHAUER, Individually and as No. 17-15092
the Personal Representative of Harry 17-15763
Holzhauer, deceased,
D.C. No. 3:13-cv-02862-JST
Plaintiff-counter-
defendant-Appellee,
MEMORANDUM*
v.
GOLDEN GATE BRIDGE HIGHWAY &
TRANSPORTATION DISTRICT, a
governmental entity,
Defendant-cross-defendant-
cross-claimant-Appellant,
DAVID P. RHOADES, an Individual,
Defendant-cross-defendant-
cross-claimant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted June 14, 2018
San Francisco, California
Before: SCHROEDER and GOULD, Circuit Judges, and DU,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
This case concerns a marine accident involving a pleasure speedboat and a
passenger ferry in San Francisco Bay. In this consolidated appeal, involving just
some aspects of the litigation, the Golden Gate Bridge Highway & Transportation
District (Golden Gate Bridge) appeals the district court’s admission of a United
States Coast Guard interview summary and the district court’s denial of its petition
to limit liability. Addressing each of these issues in turn, we affirm.
1. Appellant Golden Gate Bridge argues that it is entitled to a new trial
because the district court admitted a Coast Guard interview summary even though
46 U.S.C. § 6308 prohibits the admission of reports on marine casualty
investigations. Appellees Rhoades and Holzhauer contend that 46 U.S.C. § 6308
does not apply because the summary was part of the investigative file—not part of
the Coast Guard’s formal report. Appellees Rhoades and Holzhauer further argue
that the summary is admissible under the public record exception.
The statutory and regulatory law here seem clear in their aim to exclude
reports of marine casualty investigations: The statute provides that except as
permitted under other law, “no part of a report of a marine casualty investigation
conducted under . . . this title, including findings of fact, opinions,
recommendations, deliberations, or conclusions, shall be admissible as evidence or
**
The Honorable Miranda M. Du, United States District Judge for the
District of Nevada, sitting by designation.
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subject to discovery in any civil or administrative proceedings, other than an
administrative proceeding initiated by the United States.” 46 U.S.C. § 6308(a).
The relevant regulation states, “investigations of marine casualties and accidents
and the determinations made are for the purpose of taking appropriate measures for
promoting safety of life and property at sea, and are not intended to fix civil or
criminal responsibility.” 46 C.F.R. § 4.07-1.
The district court initially denied Golden Gate Bridge’s motion in limine to
exclude the Coast Guard’s summary because Golden Gate Bridge sought to
prohibit the summary’s use but had given the report to its expert and the expert had
relied on the summary. At trial, the district court permitted Rhoades to use the
interview summary to impeach Captain Shonk, the ferry captain, concluding that §
6308 did not prohibit its use and that the public record exception to hearsay
applied. After the trial, Golden Gate Bridge moved for a new trial arguing that the
admission of the interview summary was an evidentiary error that tainted the
outcome. The district court denied Golden Gate Bridge’s motion for a new trial,
concluding that it did not err in admitting the investigation summary, and that issue
has now made its way to us on this appeal. The district court concluded that §
6308 did not bar admission of the interview summary because the interview
summary did not constitute “findings of fact, opinions, recommendations,
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deliberations, or conclusions of the Coast Guard,” even though the protections of §
6308 were expansive.
Reviewing the denial of the motion for new trial for abuse of discretion and
the interpretation of the statue de novo, we conclude that the district court did not
err. We start with the language of the statute when conducting statutory
interpretation. U.S. ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1213 (9th Cir.
1996). Section 6308 prohibits any “part of a report of a marine casualty
investigation” from being used as evidence in civil or administrative proceedings.
The statute specifies that parts of a report include “findings of fact, opinions,
recommendations, deliberations, or conclusions.” 46 U.S.C. § 6308. But here, we
have a summary of an interview. We are persuaded by the reasoning in In re
Complaint of Danos & Curole Marine Contractors, Inc., 278 F. Supp. 2d 783, 785
(E.D. La. 2003), wherein a district court held that photographs taken by Coast
Guard personnel were admissible. Id. There the court concluded that the Coast
Guard’s “photographs do not provide findings of fact, opinions, recommendations,
deliberations, nor conclusions, [instead], they merely illustrate the condition of the
objects depicted in the photos as they existed on September 19, 2002 at the time
that the pictures were taken.” Id. That court reasoned that while “the list provided
in 46 U.S.C. § 6308(a) is illustrative and not exclusive, [it did] not believe that the
photographs are the type of conclusory items which the statute seeks to exclude.”
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Id. The court expressly declined to adopt such an expansive reading of 46 U.S.C.
§ 6308(a). Id.
Similarly, the interview summary here does not contain the Coast Guard’s
findings of fact or conclusions. The one-page summary instead documents what
Captain Shonk said when asked questions about the incident. In his interview with
the Coast Guard, Captain Shonk recalled, “He did not make any cell phone calls or
texts during the transit when the collision happened.” This statement was used to
impeach Captain Shonk on cross-examination because he had stated on direct that
he had made an “operations” call when maneuvering away from the dock.
Admission of this statement does not conflict with the letter or purpose of § 6308.
See Guest v. Carnival Corp., 917 F. Supp. 2d 1242, 1246 (S.D. Fla. 2012). The
statute was drafted to prevent Coast Guard findings of liability from being used to
impose liability in civil contexts. See 46 C.F.R. § 4.07-1(b) (“The investigations of
marine casualties and accidents . . . are not intended to fix civil or criminal
responsibility.”). Admission of the one-page interview summary for purposes of
impeachment did not violate that purpose because the summary does not contain
conclusory comments or judgments on liability and was not used directly to “fix
civil or criminal responsibility.” We affirm the district court’s denial of the motion
for a new trial based on the use at trial of the Captain Shonk interview summary.
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Also, the interview summary does not constitute inadmissible hearsay under
the Federal Rules of Evidence because the interview summary is admissible under
the public record exception and as an admission of a party opponent. The public
record exception to hearsay applies when a record or statement of a public office
sets out factual findings of a legally authorized investigation and the opponent does
not show lack of trustworthiness. Fed. R. Evid. 803(8). Here, the interview
summary was created as part of the Coast Guard’s practice of investigating all
boating accidents in navigable waters. There is also no argument that the summary
lacked trustworthiness. Additionally, there is no hearsay barrier to the admission
of the statements in summary. The statement of a party opponent, in this case
Captain Shonk as an employee of Golden Gate Bridge, is not hearsay. See Fed. R.
Evid. 801(d)(2)(D). We affirm.
2. Golden Gate Bridge argues that the district court erred by denying its
Petition for Limitation of Liability because the district court wrongly concluded
that Golden Gate Bridge had knowledge or privity with Captain Shonk. Golden
Gate Bridge argues that no evidence showed that its management knew Captain
Shonk made routine operations calls while adjusting the speed and course of the
ferry, and that no evidence was provided to contradict its own evidence that the
ferry operator had discretion in making operational communications. Further,
there was no evidence that the Golden Gate Bridge was “on notice” of similar
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prior incidents. Appellees Rhoades and Holzhauer argue that there was evidence
that showed that Golden Gate Bridge had privity and knowledge of Captain
Shonk’s action—the use of the cellphone while operating the ferry—and that the
district court’s findings were not “illogical, implausible, or without support on
inferences that may be drawn from the facts in the record.”
The Limitation of Liability Act limits shipowner liability arising from the
unseaworthiness of the vessel or the negligence of the vessel’s crew to the value of
the boat unless the condition of unseaworthiness or the act of negligence was
within the shipowner’s “privity or knowledge.” 46 U.S.C. § 30505(b); In re
BOWFIN M/V, 339 F.3d 1137 (9th Cir. 2003). The shipowner has the burden of
proving that the act or condition was outside its privity and knowledge after the
claimant establishes the act or condition caused the loss. In re BOWFIN M/V, 339
F.3d at 1138. Whether a defendant is without privity or knowledge is a question of
fact. See Coryell v. Phipps, 317 U.S. 406, 411 (1943).
The district court denied Golden Gate Bridge’s petition, concluding that
Golden Gate Bridge did not meet its burden of showing lack of privity or
knowledge. The district court agreed with the parties that the first element—
whether a negligent act caused the plaintiffs’ harm—was satisfied based on
Captain Shonk’s use of a personal cell phone moments before the collision. The
district court then concluded that Golden Gate Bridge did not meet its burden of
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showing lack of privity or knowledge because Golden Gate Bridge did not have a
policy against use of personal cell phones by captains, because Golden Gate Bridge
knew that its captains carried personal cell phones with them while operating the
ferries, and because Golden Gate Bridge permitted the use of personal cell phones.
We conclude that the district court did not err. We review the district court’s
factual findings for clear error. See In re BOWFIN M/V, 339 F.3d at 1138;
Hercules Carriers, Inc. v. Claimant State of Fla., Dep’t of Transp., 768 F.2d 1558,
1565 (11th Cir. 1985). Privity or knowledge does not require actual knowledge,
but includes anything the shipowner could have discovered with reasonable
investigation. Hercules Carriers, Inc., 768 F.2d at 1564. Here, Captain Shonk
was on his personal cell phone at 4:07 p.m. for two minutes, and the accident
occurred at 4:09 p.m. Golden Gate Bridge did not have a policy against the use of
personal cell phones, and allowed its ferryboat operators to carry personal cell
phones. Those facts are sufficient to establish knowledge. It was not clear error
for the district court to find that Captain Shonk’s cell phone use contributed to his
distraction while moving the ferry, and that Golden Gate Bridge’s lack of a policy
against cell phone use and ability to discover with “reasonable investigation” that
ferry operators used their cellphone while operating the ferry gave it constructive
knowledge that negligence could occur. We affirm the district court’s denial of the
petition to limit liability.
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AFFIRMED.
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