Unpublished Disposition, 860 F.2d 1089 (9th Cir. 1988)

MEMORANDUM^* 

Hiller Aviation ("Hiller") appeals the district court's judgment in P.S. Fishing Company's ("P.S. Fishing") cross-complaint. We affirm.

The appellant contends that the district court's findings of fact are contrary to the evidence and clearly erroneous. We disagree. Having examined the trial record, we conclude that the court had sufficient evidence to support its findings. The parties disagree on whose evidence deserved credence, but " [i]t is not the function of this court to retry cases on appeal." Glens Falls Indemnity Co. v. United States, 229 F.2d 370, 373 (9th Cir. 1955). The findings must be affirmed because they are not clearly erroneous. Fed. R. Civ. P. 52(a).

The district court based its liability judgment on several theories. The court determined that Hiller was liable not only under a res ipsa loquitur theory, but also under theories of strict liability, breach of express warranty, and breach of implied warranty. We can affirm the judgment on any ground supported by the record. McMichael v. County of Napa, 709 F.2d 1268, 1273 (9th Cir. 1983). We affirm on the strict liability theory.

An action based on strict liability will lie in federal admiralty court. Pan-Alaska Fisheries v. Marine Construction & Design, 565 F.2d 1129, 1134-35 (9th Cir. 1978). Our circuit's test for strict liability in admiralty is as follows:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Id. at 1135 (quoting Restatement (Second) of Torts sec. 402-A).

The district court's findings satisfy this standard. They indicate that the condition of the helicopter was defective, and that the defect caused the accident. Hiller is in the business of selling helicopters. The helicopter reached P.S. Fishing without substantial change in the condition in which it was sold. While it is true that an accident befell the machine between its sale and the occurrence of the accident now before us, the warranty on the repair contract indicates that the parties intended to consider the aircraft as though it were still in its new condition despite the first crash.

The issue of negligence and its proof need not concern us. Under strict liability, the seller may be held liable even though "he has exercised all possible care in the preparation and sale of his product." Id. Thus, negligence is not a necessary element in our analysis.

In an attempt to avoid strict liability, Hiller argues that the repair work, and not the sale, is at issue here. The repair contract states, however, that the "HELICOPTER WILL BE RETURNED IN AIRWORTHY CONDITION ... [and the] NEW SHIP WARRANTY WILL BE CONTINUED." It is apparent from this language that the parties agreed to proceed with their rights and obligations vis-a-vis the helicopter as though it were new and the prior accident had not occurred. Therefore, Hiller's argument fails.

Because our decision rests on the strict liability theory, we need not reach the other grounds for decision offered by the district court.

The district court judgment is AFFIRMED.