NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN M. NELSON, 

Plaintiff-Appellant, 

 v. 

UNITED STATES OF AMERICA, by and 

through the National Oceanic and 

Atmospheric Administration, 

Defendant-Appellee.

No. 22-35486 

D.C. No. 3:19-cv-01761-HZ 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, Chief District Judge, Presiding

Argued and Submitted December 5, 2023

Portland, Oregon

Before: NGUYEN and MILLER, Circuit Judges, and MONTALVO,** District 

Judge.

Steven M. Nelson appeals from the district court’s order granting judgment 

in favor of the United States following a bench trial on his negligence claim. We 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Frank Montalvo, United States District Judge for the 

Western District of Texas, sitting by designation.

FILED

JAN 17 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

have jurisdiction under 28 U.S.C. § 1291, and we affirm. 

Nelson was injured when a gangway he was crossing to disembark a ship 

broke in half and collapsed. The ship, the Oscar Dyson, was owned and managed 

by the National Oceanic and Atmospheric Administration (NOAA).

We review the district court’s factual findings for clear error. Madeja v. 

Olympic Packers, LLC, 310 F.3d 628, 634–35 (9th Cir. 2002). We review 

evidentiary rulings for abuse of discretion. Glover v. BIC Corp., 6 F.3d 1318, 1328

(9th Cir. 1993).

1. Nelson argues that the district court violated Federal Rule of Civil 

Procedure 52(a) because it did not make an express finding on whether NOAA was 

negligent in failing to conduct an initial static load test of the gangway. That rule 

states that a court, following a bench trial, must “find the facts specially and state 

its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1). All that is required is 

that the findings “give the appellate court a clear understanding of the basis of the 

trial court’s decision.” Zivkovic v. Southern Cal. Edison Co., 302 F.3d 1080, 1090 

(9th Cir. 2002) (quoting Alpha Distrib. Co. v. Jack Daniel Distillery, 454 F.2d 442, 

453 (9th Cir. 1972)).

Even without an express finding as to NOAA’s negligence, the district 

court’s order is adequate for our review. The record makes clear that the 

manufacturer, not a downstream purchaser or user, is responsible for conducting a 
3 

gangway’s initial static load test. Nelson insists that the Safety of Life at Sea 

Convention (SOLAS) imposed on NOAA a duty to arrange for a static load test 

before using the gangway, but the district court expressly found that the Oscar 

Dyson was not subject to SOLAS. In addition, even if the initial user had a duty to 

conduct a static load test, the Oscar Dyson was not the initial user of the gangway, 

which it acquired from another vessel. 

For similar reasons, we reject Nelson’s challenge to the district court’s 

implied finding that the United States was not negligent in failing to conduct an 

initial static load test. The trial record amply supports the finding that the United 

States “fulfilled its duty to conduct a reasonable inspection of the gangway before 

it collapsed and had no duty to load test the gangway once it was in use.” 

2. Nelson argues that because the gangway was destroyed before an 

inspection took place, the district court should have presumed that weld cracks on 

the gangway were visible before it broke. This amounts to an assertion that the 

district court should have imposed an adverse inference against the United States 

for the spoliation of evidence. “A federal trial court has the inherent discretionary 

power to make appropriate evidentiary rulings in response to the destruction or 

spoliation of relevant evidence.” Glover, 6 F.3d at 1329. Nelson did not expressly 

move for such an inference as a sanction for spoliation, and the district court did 

not abuse its discretion in not imposing one.
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No evidence suggests that the United States destroyed the gangway. Nelson 

himself acknowledged that there was no record of when the gangway was 

destroyed. Even if NOAA was responsible for its destruction, the record does not

support the assertion that the United States “destroyed the [evidence] . . . in 

response to this litigation.” Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 

1991). Nor has Nelson shown that “the government was on notice that the 

[evidence] had potential relevance to litigation.” Id.

3. Nelson also argues that the district court should have presumed that 

certain inspections of the gangway—in Kodiak, Alaska and Newport, Oregon—did 

not happen. In fact, ample evidence supports the finding that the inspections indeed 

took place.

As to the Kodiak inspection, the district court based its finding on Ryan 

Harris’s uncontested testimony—corroborated by that of Bruce Mokiao—

describing his inspection of the gangway. Although Nelson points to discrepancies 

between Harris’s and Mokiao’s descriptions of the inspection procedures, and to 

the absence of Harris’s inspection notes, the district court’s choice to credit the 

testimony of the two men in finding that the inspection took place was within its 

discretion.

As to the Newport inspection, Nelson again suggests that the district court 

should have imposed an adverse inference because of the destruction of records
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memorializing that inspection. But it was within the district court’s discretion not

to apply such an inference because, as the court explained, “there is no custom and 

practice in the marine industry requiring a ship owner to keep detailed records of 

inspections of gangways.” 

4. Finally, Nelson argues that the district court clearly erred in finding his 

expert and that of the United States equally credible regarding the visibility of the 

gangway’s defects. The district court based its finding on a careful review of the 

experts’ testimony and on the fact that they “agreed on the source of the defect” 

and disagreed only as to whether that defect would have been visible. Faced with 

equally credible testimony, the court logically concluded that Nelson had not 

carried his burden of proving that the defect would have been discovered during a 

visual inspection. “[W]hen a trial judge’s finding is based on his decision to credit 

the testimony of one of two or more witnesses, each of whom has told a coherent 

and facially plausible story that is not contradicted by extrinsic evidence, that 

finding, if not internally inconsistent, can virtually never be clear error.” Anderson 

v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985). Because the district 

court’s finding was supported by the record and was adequately explained, it was 

not clearly erroneous. 

AFFIRMED.