A passing vessel's wake caused a fisherman to fall between his vessel and his private dock. He suffered a broken leg and attempted to recover against the passing vessel, the M/V LUDWIGSHAFEN. The plaintiff sought to impose a presumption of fault against the defendant-appellee. Defendant claimed plaintiff was negligent.
The trial court denied plaintiff's proposed jury instruction which would have increased the standard of reasonable care to a presumption of fault. Instead the court instructed the jury that a passing vessel must exercise reasonable care not to injure people ashore or on board a vessel or another floating platform. The owners must take such precautions regarding speed and motion that may be reasonably necessary to prevent injury or damage under the circumstances. The duty also includes the requirement to keep a lookout for other vessels that may be effected by the wake of the navigating vessel. The jury found for the defendant.
The Ninth Circuit affirmed using the abuse of discretion standard.
The proposed instruction, said the circuit court, was properly rejected. It would have expanded the presumption of fault to personal injuries which currently applies only to damage to property. The ninth circuit's analysis used the tort standard for general negligence and held that an accidental fall does not raise a presumption of negligence. The standard was reasonable care.
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