may please the court my name is david russo and i represent the golden gate bridge highway and transportation district this case presents several issues one of which is in a maritime collision case may one of the parties be  suffered a more stringent standard than another party in this case we urge that pelly david rhodes was allowed to be judged on a more lenient and different standard then the bri district among other parties we respectfully submit that the answer that question is no for many many years and in all the cases we cited in our briefs it is long been held in maritime law that inclusion cases as well as reasonable care under the circumstances this court itself held in crowley vs marriage trends in two thousand and eight that the job in function of the trial or a fact is to compare and assess the conduct of all parties before it and based on all the facts assess the relative negligence or not of the parties that are involved in the incident this court also explained in its nine hundred ninety eight decision in catalina cruises that under the standard of care what may be reasonable or not will depend on the circumstances one size does not fit all the parties in this case agreed to these principles when they stipulated to jury instructions which were modeled on the ninth circuit model jury instructions in maritime law specifically relevant to this appeal jury instructions to me twenty six and thirty which adopted the reasonable care standard to be a political to all of the parties that narrow test of the eleventh circuit applies there is wholly inconsistent with karma and this court's decisions in maritime law going back fifty or more years and weissman stand was a very narrow standard which should have been applied on the rule fifty motion was the same principles of law that the jury would have decided the case by not a different standard had the rule fifty motion been decided on the correct standard we would respect there was a mosaic of facts and circumstances presented on the record which would have allowed the try or fact to decide that mr rhodes was at least one percent negligent in the case keeping in mind of course that the jury assigned seventy percent of the blame for this incident to the speedboat but because the district court would not allow the jury to decide the respective obligations between the two occupants of the speedboat we appear just some examples it might have been enough for a reasonable jury under the correct standard to decide that allowing an relatively inexperienced boat owner to operate an unfamiliar boat that goes sixty miles an hour in unfamiliar waters would be a bit enough to assign some blame to at pelly road or added to that the fact that mr rhodes had been counseling mr holds hour during the day asking answering questions about how he was doing in this road was making sure he was ok and then stopping at the critical moments may have been an additional fact that would have caused a reasonable jury to decide that there was some negligence on the part of ellie or perhaps add to that fact that it was mr rhodes who directed mr holt hour in the direction of the ferry lane when saying go make a big loop over here  jury had all of the circumstances before it and should have been had the opportunity to decide whether or not those facts rose of the level of unreasonable conduct that should not have been the decision the district court on this record for these reasons we believe that a new trial onli billet he is warranted shifting to a second issue one of first impression before this court or any federal appellate court that anyone is found the scope of the privilege afforded to the coast guard materials under forty six u s c section six three indisputable that the goal of congress in acting the statute was to keep separate and apart coast guard proceedings investigations on the one hand and civil lawsuits on the other the intent to shield agency investigations from interference by civil litigants is reflected in the enabling regulation forty six c a far section four dot zero seven dash one that expressly provide privilege applies not just to the final report of findings by the coast guard but to documents generated by the coast guard during its investigations unlike a piece of physical evidence or maybe maybe even a photograph and investigators notes of a meeting or other investigatory act ours are full of his or her impressions much like attorney work product allowing that kind of material into civil lawsuits in unavoidably drag the coastguard into civil litigation both in terms of discovery and as a witness if a pelleas narrow view of the statute is a peltier then  two weeks before trial and was never used by any of our witnesses and was used for but for impeachment by the police we would submit that if this door is opened the congressional intent to protect the coast guard from intrusion will be lost we would know that the coast guard took a similar position in the district court below and filed objections to the admissibility of this material the district court we submit did not provide or give d deference to the agency's position as to its own regulations and its own privilege as a matter of prejudice the district court itself acknowledged that this memo would have great impact if we had a ambiguous and heavily redacted memo that was used to impeach a witness when the author of that memo could not be called in to testify to explain what he wrote this was not a statement by the ferry captain of what someone else said was their impression of what the conversation was the courts are next in and found her are as well as carve a guess or instructive that they made it clear that the goal of congress is to be to make sure that slippery slope was not tread too heavily on and make sure the coast guard could perform its functions for safety and marine investigations and not be involved so litigation we respect lawyers that however it has the full force and weight of congress which has not repealed it even though it has to could with it over the last several years the facts of this case present a classic case for limitation of remedy much like western pioneer which is where this  remedy in western the captain was doing a traditional function of the master looking at logs he was doing at the wrong time allegedly and there was an incident the court there held that there could be no privy your knowledge because that was  in the moment error by a competent mer similarly here there is no dispute that the ferry captain was a very competent mariner he allegedly made an operational call which is what he's supposed to do but  mrs holt our has an interest in all four issues that are before the court and i want to focus primarily on the that the two appeals that she has brought and and most importantly the grant of the motion for judgment as a matter of law and i don't want to be redundant and cover recover what mr reese has covered but there's there's three points that i wish to address or emphasize which are of critical importan of the issues are legal issues and one relates to that the factual record underlying the motion the the two legal issues the first issue with mr russo mention is the duty of care owed by a vessel owner individuals different duties to longshoremen and specific duties to passengers aboard their vessels or others and so mr rhodes owed a duty of reasonable care under the circumstances as mr russo emphasized to all on the bay that day and to mr holt our aboard his vessel and again that's the comerica case and that's it that is a legal principle that is critical to the way the court and the court ultimately with the grant of the jail mel altered the rubric that the supreme court has said should control in a marine collision case and the other component of that we judge each individual actor based on the reasonable care under th circumstances again arguments are made for example that well mr rhodes could have he didn't have to be on the bus or he could have been asleep at the time of the accident but and that would of been one set of circumstances and then it would have been a negligent entrustment type argument and have a have a party or go to sleep or whatever correct in so in this instance the the owner did not do that the owner maintained active control of the vessel throughout the day mr rose testified nobody drives my vessel that fast when i'm aboard the vessel he directed where the vessel is to go he as mr mitchell pointed out directed at the time moments before the collision to take the vessel out in a big circle and back to his home in belvedere a big circle which took this motor boat into the ferry lanes guarding sausalito which mr rhodes he lives in dublin here he has a view of that he testified that he knew that they were travelling into the ferry lanes he he of critical importance mr r was serving as the lookout on this vessel and he not only looks served as a lookout throughout the day he testified that he served as the lookout on the vessel moments before the collision in two or three minutes before and he was studying the traffic o circumstances so if he were to say mr holt are you can take my boat out for a ride then the circumstances would be was that a reasonable decision to allow this individual with whatever he experienced he had here the totality of the circumstances in his conduct must be judged in what he did throughout the day and how much involvement he had in the operation of the vessel the reasonable care under these circumstances where he so if i'm taking my son out for a lesson in here in my car to practice driving and i'm actively involved and i taking charge of making sure that the driver doesn't make any accidents and all of the above here he is a co act or in the operation of the vessel and critically your honor that was my question you because your brief in your argument appears to be that is as the owner he had an obligation to do this and that was so that no owner can ever go on to go down and have a party you know and he know that give up the operation of the boat and that can't be right no that is not right so the owner  owner only must exercise reasonable care under whatever the circumstances may be so here it's the experience level of mr holds our it's the traffic conditions it's the nature of the boat all of these things and so what we're saying is that just record a should have applied the correct standard of care not that the standard in the wisemen k the court said well even though the defendant was a path a mere passenger if a mere passenger becomes involved in the operation the vessel then maybe even a passenger can be liable and for in fact in the weissman case they found that the defendant was a proper to bring a claim against the defendant in to a judge that parties that non owners rights but here we have an owner so the owner of his has a different standard of  owner which is reasonable care so then we turn to what is the reasonable care in the circumstances and and i think the point that makes this that fact in the record that makes this abundantly clear is that mr rhodes testified this is an individual looking at the totality of the circumstances that he was serving as a lookout and he was watching for traffic leaving the sausalito shoreline on the on the right side of the vessel on the west side of the  to the west and he was looking at leaving the marinas but also in that exact location was the san francisco leaving the ferry terminal with its engines running backing out and so he is the person who's serving as a lookout my argument is the comerica imposes a duty a special duty on the owner of that soul to act reasonably and that the jury in this case could have found reasonably found that mr rhodes shared some degree of responsibility as the individual who selected the course that day as the individual who was serving as the lookout that day and a number of things that mr rhodes did in operating the vessel another critical legal point that we don't emphasize perhaps in the brief we honor is the reliable transfer case in the reliable transfer case mandates in it the maritime law used to have many rules applying to collision cases they had the last clear law it altered the controlling rule and a reliable transfer which says you must include the actions of all parties to fairly medicaid and allocate a portion fault but just what trouble on and so just like to what time my question was going to be this i thought reliable transfer was based on the idea that the supreme court at an earlier period had adopted the divided damages rule you know a case called screener cathy catherine and that went way back to the you know the early days of the middle ages and the laws of all around but by the time it it was before the courts in reliable transfer almost all the nations of the world and all the law that says look to comparative for that's correct your honor that was the that was the the the basis of the original decision but the practice has been since that and in the ninth circuit in the trial courts that the finding has been that reliable transfer requires evaluation of proportionate fault of all parties and what the district court did here is it not only said to you not only granted the motion for judgment as a matter of law it instructed the jury that you may not consider the role of mr rhodes and you must conclude you must come allocate one hundred percent responsibility between mr holt our and the district we've now created an artificial construct that does not comply with the requirements of reliable transfer and so i it's important in looking at the cases to realize that there are two problems here and one is three problems one is we're going to we're not going to apply reliable transfer we're going to take away that the consideration of one party we're going to apply the wrong standard to mr rhodes as a passenger rather than an owner and finally we're going to ignore the the evidence which again we're just asking whether mr rose could have been one percent at fault or five percent of fault or thirty percent at fault but there's a the in the opposition we see the most french motion for judgment as a matter of law and arguments before the district court your client took the position that mr most nothing wrong and at perhaps as a matter  strategy to point the away from the speedboat but now you're taking an inconsistent position because now you're saying that yes he should have been a pulse in liability or faults because he did do something mom is not inconsistent and you know th fair with the arguments of counsel of course are not evidence or determinative we said a district court said well your honor we're going to argue this but in many cases juries don't agree with what we are you and so we must look at the evidence and the evidence here is certainly a sufficient i was arguing that mr holt i wasn't responsible but certainly there was evidence that supported that as there was sufficient evidence to support an allocation to mr rhodes i'm not going to argue i didn't argue the fault of the small boat for tactical reasons but we pointed out to the district court all of the evidence that we've summarized in our briefs that was sufficient to allow this issue to go to the jury and the by the district court taking this away from the jury the night before argument and after the whole case had been put on and creating an artificial construct  apply that that i think tainted the verdict and i think if i may have a few seconds on the issue of the sun's damages which i'd like to point out and he says seconds ok a few seconds i have forty two seconds all uses the point i would like the court to look at in the decision regarding the son's damages is the fundamental difference between the jury awarding a nominal sum to the science and the jury awarding ciro zero is not an option for the jury that is a finding of no damage which conflicts with the record so on that issue the point we want to make is just to draw that distinction the difference between one dollar and zero dollars is a is a fundamental difference and here the jury did not have the right to say there is no damages suffered they could have done a nominal award but that the finding of zero damages was contrary to the jury instructions of course the evidence thank you  please a court good morning my name is john giffen i represent david rhodes as a defendant and i would like to address and i have split the r thirty minutes with mr welton here who will also who also represents mr rose i just would like to address some of the issues that mr russo a mr bull rose race about the rule fifty motion we made a rule fifty motion on behalf of mr rose the first thing mr bull talks about judge tiger's ruling and the fact that he did not follow the court's previous really previous rulings and reliable transfer and kerr murat those cases don't require a finding of liability they simply say that the liability may be apportion the jury can still find zero liability on the part of any party to a collision or maritime lawsuit rule fifty is there for a reason and that is for the judge in this  case judge tiger who was in gauged involved in the in the lawsuit from the beginning and was certainly a gaze in the trial to review the evidence and make the proper determination of whether or not there is sufficient evidence for the case to go forward against a particular party and judge tiger on our motion made that determination now counsel mr bruce who talks about applying the  weissman test and that is whether or not the individual who allowed the person to operate his boat was aware that the person was incapacitated or that there was a joint operation of the boat  judge tiger in his ruling he said that there was no evidence of negligence on the part of mr rhodes he didn't simply apply that weissman test lockstep judge tiger looked at the of the evidence and said there is simply not any evidence that mr rose was negligent and that he had any duty to mr holt's our or anybody else and judge tiger has the authority the legal authority to determine duty and judge tiger looked at the case not just weissman but all of the cases that all the parties cited and this includes kerr moroccan includes all of those cases and judge tiger decided rightfully so that mr rhodes simply as the owner of this small boat who was a passenger at that time had no duty to mr holds out in your view that with the only theory in which his liability was premised with his duty as a loner you know it well if that's what they're arguing that he had some duty to be a lookout and we certainly say that he had no duty to be a would a lookout boyle noted an individual could have operated that boat by themselves it's certainly appropriate for somebody to take that boat out and operate it without anybody else in the boat there was contrary to what mr bull said mr rose did not say that he was acting as a lookout he was simply on the boat and he very specifically said at the moment of the accident i was simply looking out over the city and looking at the skyline of san francisco he never said that he was acting as a lookout certainly not that time also mr ball talks about infers that there was some sort of joint operation because he said mr rhodes told mr holt how to take the boat out through the ferry lanes that isn't what happened that is in the testimony that isn't the evidence these two men two friends in their late sixty's simply agreed let's take out it's a nice day let's take it for another turn around the base we can look at the sites before we go back to the my docket my home they mutually agreed on that and mr rhodes never told mr holds our take that route do that do that mr olds are just said let's take another loop he said let's that's fine let's do that so i just don't see i mean the council will raise these what if kind of questions well maybe the jury could have decided that he was negligent but they never argued that he was negligent they never introduce any evidence that he was negligent and judge tiger in oral argument brought that up he said show me the evidence where is the evidence that this man was negligent and did something wrong and in fact  there wasn't ever any evidence he never offered any and mr rhodes was rightly allowed out of the lawsuit under rule fifty motion as a defendant thank you very much your hon my name is phil walton and i represent mr rhodes as a cross complaint what the district and mr boyle are really saying is that mr roach supervised the operation of this vessel because of his status as an owner and or passengers that's what they're saying and i find that really ironic since a district took the position that this large vessel the ferry didn't need a dedicated lookout other than just the captain think that i just would submit that it's somewhat ironic but nevertheless it would be utterly chaotic if there was impose a duty of supervision on the crammer premises liability case really and reliable transfer only says that the excuse me only says that you can divide up responsibility it begs the question because negligence was already determined at that point and we would submit that judge tiger was absolutely right in establishing this duty for this passenger like to address the issue that the purpose of sixty three zero eight in there in its own regulations that it's not intended to fix or not intended to fix civil or limited or criminal liability and that's true but here a summary or photographs do not fix liability they are not conclusions of law they are not findings by the coast guard this is simply a summary that was conducted under a duty to to conduct an accurate investigation and under the more narrow construction of that of this statute or it should be allowed in but i do think that the most important piece is the district court oh pardon me what basis did the district of the district court first realize that there is no report here actually ok and without any report this statute is not even implicated so first he allowed it in saying there is no privilege then he allowed it under the public records of say exception and then an admission of a party opponent and he made a very well the the they will not they have to is satisfied they were substantially prejudiced by this admission and i don't believe that they can do that here with that because they were going to the captain right they are allowing him to use the right to impeach the captain that he did not talk on the phone at the time and i would i would like to correct something that was said earlier regarding the district giving these investigative materials to their own expert which they did and that is in evidence and we are not sure what they gave to their own to their own expert but that it was a subject of a motion in limine a that they brought in the district and not the district court denied because they did indeed get investigative materials from the coast guard and they did give it to their own expert and that's initially how this came to be moving on to the limitation actually and i notice that i'm running out of time here the court the district focuses on western pioneer and western pioneer that court found that the sole proximate cause the only proximate cause for that collision was a spontaneous navigational air by its captain and that is just not the case here in the districts in the district court's finding he cited many reasons why the court was denying this limitation action that there was no policy regarding the use of cell phones that the district knew that the captains had cell phones and permitted their use the experts captain sweeney and captain solar said that it would never be safe for a person serving as the only dedicated lookout to use their cell phone and indeed in this instance the captain was on the phone with shoreside management and so the district court found for all of these reasons including that he was on his cell phone with shoreside management that there are many reasons to say that the that the district had privity and knowledge of all of these negligent actions not just one the sole proximate cause not just one spontaneous navigational error by a captain but that there were many different issues go in on here and the district had perfectly and knowledge of all of them i'd also like to take this time to talk about the inside of home port doctrine this court spoke about the inside of home port doct greater will be the degree of control which the corporate owner will be required to exercise over the master the crew and subordinate shoreside employees in other words the duty to control increased with the possibility of control here this is a ferry that operates solely within the bay it does not go away out to sea it does not have the captains that are way far beyond the district's reach this is solely within the bay the district indeed was on with management at the time or right before this collision and that phone call shows that the district has control over its master and crew and there can just need be no way that they can claim that they did not have privy to your knowledge of any of the negligent acts that were committed that day and unless there are any questions i think i would rest on that thank you thank you very much rebuttal now we seem to have a disagreement to one attorney for mr rhodes says weissman clearly applies it was correctly applied by the district court which of course is consistent with the a police briefing before this court they were candid about indicating that that's what this record did on the other hand another counsel for mr rhodes starts to walk back from that position and indicate that the district court was more broad one thing is clear from the record the district court did not and in granting the rule fifty motion apply the rule in the jury instructions which is the rules that should have been applied the rules of lawyers have been applied it is rare very rare as the court's decisions we cited indicate for a in a negligence case particular comparative negligence case multiparty in two people or on the same boat to grant a rule fifty motion to set only two defendants to the jury there would have to be not a scintilla of possibility for a jury to reasonably find one percent negligence that is simply not the record here and i won't belabor with the record on the on the privilege issue i must disagree with my able adversary that the regulations indicate that the privilege applies once a marine investigation is begun under section sixty one and it doesn't start to apply until the report is issued sometimes no reports are issued in this case maybe the fundamental policy question on the privilege issue is this does this court want to open the floodgates to bring the coast guard into civil litigation every lawyer in this room and every maritime lawyer in the city will start subpoenaing those records and we believe congress's intent was not to allow that finally a limitation homeport exception applies to see within its actions not in the moment navigation and i would urge also that the jury is the best arbiter of whether a party is entitled to one dollar zero dollars or more thank you very much for the lesser of the questions that appear to be any thank you thank you