Unpublished Disposition, 865 F.2d 1271 (9th Cir. 1989)

MEMORANDUM^* 

DaLuz appeals the involuntary dismissal of his unseaworthiness and Jones Act claims by the district court. We affirm.

* FACTS AND PROCEEDINGS

Plaintiff seaman Celestino Penha DaLuz was injured while unloading tuna from a well of the "American Queen," a vessel owned and operated by defendant Caribe Fishing Co., Inc. DaLuz was employed as a deck hand on the boat, and had never unloaded fish. For the 4 1/2 years DaLuz had been a fisherman, the task of unloading fish had been performed by shoreside workers recruited for that purpose. On the day of the accident, DaLuz was told by an owner of the vessel to join one of the shoreside unloaders already at work unloading fish in a 10 X 15-foot well. DaLuz obtained a gaffing hook and other equipment, entered the well, observed the shoreside unloader at work for a few minutes, and then joined in. After working in the well of the vessel unloading fish for about an hour, DaLuz's hand was struck by the other unloader's gaffing hook.

DaLuz brought the present action charging the defendants with liability on two theories. First, DaLuz alleged that the defendants, by sending DaLuz into the well without instructions as to an appropriate method of unloading fish, had created an unseaworthy condition which caused DaLuz's injury. Second, DaLuz alleged that the defendants' failure to instruct constituted Jones Act negligence, which in turn led to his injury.

The action was tried by the district court without a jury. After completion of DaLuz's presentation of evidence on liability issues, which included testimony from DaLuz's experts on proper methods of unloading fish from the wells of fishing vessels, the defendants moved for involuntary dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. This rule provides in pertinent part:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of evidence, the defendant ... may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.... Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.

The district court granted defendants' motion. The court concluded that DaLuz had shown no right to relief on his claims for negligence and unseaworthiness, because he had failed to demonstrate a causal connection between the defendants' failure to instruct him on how to unload the fish and the accident. The import of the instruction appellant alleged to have been lacking was that he should keep his distance from other workers gaffing fish, but the district court found this knowledge to be common-sensical in light of the gaffing tool's obvious sharpness. DaLuz appeals. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

II

ANALYSIS

"An involuntary dismissal pursuant to Fed. R. Civ. P. 41(b) is viewed as 'a judgment in defendants' favor following a trial to the court.' ... Findings of fact are reviewed under the clearly erroneous standard; questions of law are reviewed de novo." Great American Houseboat Co. v. United States, 780 F.2d 741, 746 (9th Cir. 1986) (citations omitted).

Both of DaLuz's claims require a showing of causation. To recover in an action for unseaworthiness, a plaintiff must demonstrate a defective condition (unseaworthiness) in a vessel which proximately causes injury; proximate cause requires a showing that the unseaworthiness played a substantial part in bringing about or actually causing the injury, and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness. Alvarez v. J. Ray McDermott & Co., Inc., 674 F.2d 1037, 1042-43 (5th Cir. 1982). Under the Jones Act, a plaintiff must establish negligence on the part of his employer, and that the negligence "played some part, no matter how slight, in actually bringing about the injury that he sustained." Litherland v. Petrolane Offshore Construction Services, 546 F.2d 129, 132 (5th Cir. 1977). Thus, while both the Jones Act and unseaworthiness causes of action require a showing of causation, a plaintiff's burden under the Jones Act is lighter, even "featherweight." See Alvarez, 674 F.2d at 1042. See also Spinks v. Chevron Oil Co., 507 F.2d 216, 223 (5th Cir. 1975). Nevertheless, cause is still a necessary ingredient of liability, and a plaintiff must show that a defendant's Jones Act negligence did in some way produce the injury. Chisholm v. Sabine Towing & Transportation Co., Inc., 679 F.2d 60, 62 (5th Cir. 1982).

The record indicates that the district court was aware of the different standards for causation, and nonetheless found that DaLuz had failed to demonstrate the requisite causation under either theory. Therefore, if we conclude that the district court correctly found that cause did not exist in regard to the Jones Act claim, it necessarily follows that the district court correctly determined the unseaworthiness claim. With this in mind we assume, without deciding, that DaLuz presented evidence sufficient to demonstrate both negligence and the existence of an unseaworthy condition.

When DaLuz was struck with the gaffing hook, the other unloader was to DaLuz's right side, within two feet of him. DaLuz contends that had he been instructed in a proper method of unloading fish, he and the other unloader would not have come so close together, or at least would not have been in a side-by-side position, and the accident would not have happened. DaLuz's experts testified that there were two basic methods of unloading fish. One required the workers to begin at opposite corners of the well and work toward the middle. The other method called for the workers to work back-to-back. As the district court found, however, either method would at some point require the unloaders to work close together. Thus, even if DaLuz had been given the lacking instruction, he still would have found himself in close proximity to the other unloader at some point in the unloading process. Given their close proximity at the time of the accident, the district court found that the accident would have been no less likely to happen even if DaLuz had been instructed as to the methods of unloading fish described by his experts.

After considering all of the evidence, the district court found that the defendants' failure to instruct DaLuz in a proper method of unloading fish did not play any part in causing his injury. We have reviewed the record carefully and cannot say, based upon all of the evidence in the case, that this finding by the district court was clearly erroneous. See Lieberman v. Matson Navigation Co., 300 F.2d 661, 662 (9th Cir. 1962) ("Whether unseaworthiness or negligence are a proximate cause of the accident are questions of fact."). DaLuz failed to establish causation under either a theory of unseaworthiness or Jones Act negligence.

AFFIRMED.