Veldink v. Boise Cascade Corporation et al

Filing 23

OPINION & ORDER: Defendants' Motion for Summary Judgment 14 is Granted and Plaintiff's claims are Dismissed with prejudice. Signed on 5/7/13 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOHN R. VELD INK,
Plaintiff,
3:12-cv-01029-PK
OPINION A\'ID ORDER

v.
BOISE CASCADE CORPORATION, et al.,
Defendants.
PAPAK, Judge:
Plaintiff John Veldink brings this claim for negligence against an array of Boise Cascade
entities. His claim arises out of injuries he sustained when the boat he was riding in crashed into
steel pilings owned by one of the defendants, Boise White Paper, L.L.C. Defendants deny that
their neg! igence in any way contributed to the crash and Plaintiffs injuries, and they filed a
motion for sul1ll1laty judgment. For the reasons set forth below, Defendants motion for summmy
judgment (#14) is granted.

Page 1 - OPINION AND ORDER

I will stmi by defining two terms of art that are imp01iant to this case. The first is
"allision." In seafaring parlance, an allision occurs when a moving vessel strikes a stationary
object. A collision, by contrast, involves two moving vessels. The distinction between an
allision and a collision is imp01iant in maritime law because the standard of care and burden of
proof differ for each.
The second tem1 of art is "dolphin." As used in this case, a dolphin is a man-made
marine structure consisting of a pile or joined cluster of piles. The piles are driven deep into the
ground below the water, and they extend above the water's surface. A dolphin is a fixed
structure used to moor vessels or which a mooring vessel may use as a fender.
This is a case about an allision with a dolphin.
FACTUAL BACKGROUND'
On April 13, 2010, Plaintiff and his friend David White set out in White's 18-foot boat to
go salmon fishing. They launched at the Scappoose Bay Marina around 5:05a.m. with Columbia
River Buoy 77 as their intended destination. It was dark out, raining, and the water was
described as "hazardous."
White made his way out of the marina with the aid of the marina lights. He navigated out
of Scappoose Bay by having Plaintiff use a flashlight to locate red and green floating channel
markers. White also used a GPS trail to navigate out of Scappoose Bay and into the lower
Multnomah Channel. On prior daylight outings between Scappoose Bay and Buoy 77, it was

1

Except where otherwise indicated, the following recitation constitutes my construal of
the evidentimy record in light of the legal standard governing motions for summary judgment
under Federal CivilProcedure Rule 56.
Page 2 - OPINION AND ORDER

White's habit to turn on his boat's GPS so it "automatically lays out a track" that he can later use
in case he has to move through that area in the dark.
White and Plaintiff stopped using the f1ashlight when they entered the Multnomah
Channel. White explains:
As we moved downstream, there were no markers, you're simply ttying to see where
you're going, we had no buoy markers, nothing to look for, so as long as we stayed in
relatively deep water, which is not ve1y deep, about 20 feet for a long ways there, we shut
off the f1ashlight because the ref1ection of it against the rain was bothering our eyes.
(Boyajian Dec!., #17, Ex. A at p. 13.) Plaintiff, who had been standing to help White navigate,
got cold from the breeze when the boat sped up so he sat down, leaving White to navigate on his
own. White then navigated standing at the bow watching for any debris that might be in the
water. He does not remember refening to his GPS trail once he got in the Multnomah Channel.
White opted to proceed on the left side of the channel because the water is shallow on the
right side. Two or three boats passed closely on their right going at a high rate of speed, and
White states "their wake was pushing me around." (!d. at p. 15-16.) White was aware of and
concerned that he was traveling in a path that was too far left. So, after the last boat passed,
White moved his boat to the right some to retreat into the calm area of that boat's wake.
White soon lost sight of the passing boat, and then came upon a stationmy or slow
moving boat in front of him. In his handwritten account of the incident attached to an Oregon
State Marine Board Recreational Boating Accident Report, White recounts:
A white light appeared ahead and then a bowlight to the left of the white light indicating a
boat turning to the left. I adjusted to the left, saw the paper mill loading crane against the
sky indicating I was dangerously close to a pier (seen in earlier trips), started turning to
the right while seeing a dolphin just before impact.
(Id. at p. 27.)

Page 3 - OPINION AND ORDER

Similarly, in his deposition White recalls:
I don't remember when we passed [the stationary boat] or where it was, but it wasn't very
far past that that I saw that boom, I knew what that is, and I started to turn to the right,
and at that time, I saw, okay, the dolphin, and it was right there on me. I turned hard, but
we hit it.
(PI's Response, #19, Att. 1 (Gutzler Dec!. at Ex. 4, 41 :3-16.).) At impact, Plaintiff was severely
injured.
The Docking Facility and the Dolphin
The "loading crane" and "boom" White referred to is a loading crane at a docking facility
located on the Oregon shore of the Multnomah Channel in the Columbia River at mile 87.3. In
2000, Boise Cascade Corporation (now known as OfficeMax) was the owner of the docking
facility, which includes a dock and various associated piles and dolphins. The facility changed
ownership with various Boise Cascade transactions over the last 12 years, and it is cunently
owned by Boise White Paper, L.L.C.
The dolphin that the White vessel allided with is constructed of five steel pilings driven
deep into the river bed. Engineering drawings indicate that at a low water mark the dolphin
would extend at least twenty-six feet above water level, and at the high water mark it would be at
least four feet above water level. The dolphin is essentially in line with the Boise White Paper
dock and as such it is near the Oregon bank of the river.
The dolphin that previously occupied this spot was made of wood. In 2000, Boise
Cascade Corporation applied for and received a permit from the Army Corps of Engineers to
replace the wood dolphin with the cmTent steel pile dolphin. Construction was completed within
a few months of the pennit being issued. Upon completion Boise Cascade Corporation

Page 4 - OPINION AND ORDER

submitted the requisite Compliance Certification to the Army Corps of Engineers which states in
relevant part "that the work authorized by the above referenced permit has been completed in
accordance with the te1ms and conditions of the said pe1mit." (Garber Dec!., #16, Ex. 2 at p. 2.)
White knew this docking facility existed because "each time you leave Scappoose bay,
you go by that facility." (Boyajian Dec!., #17, Ex. A at p. 15-16.) It is unclear how many times
White had gone past the Boise Cascade facility prior to the allision, but he states he has traveled
past it both in the daytime and in the dark, and he expressly knew the "wharf' or dock structure
was there, but he did not recall having ever seen the individual dolphin that he struck.

LEGAL STANDARD
Summmy judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving pmiy is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). Summmy judgment is not proper if material factual issues
exist for trial. See, e.g., Ce/otex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242,248 (1986); Warren v. City of Carlsbad, 58 F.3d 439,441 (9th Cir.
1995), cert. denied, 116 S.Ct. 1261 (1996). When considering a motion for summmy judgment,
the district comi's role is not to weigh the evidence, but merely to determine whether there is a
genuine issue for trial. Liberty Lobby, 477 U.S. at 249; Freeman v. Arpaio, 125 F.3d 732, 735
(9th Cir. 1997).
A party seeking summmy judgment always bears the initial responsibility of informing
the district comi of the basis for its motion, and identifYing those portions of the record which it
believes demonstrate the absence of a genuine issue of material fact. Ce/otex, 477 U.S. at 323.

Page 5 - OPINION AND ORDER

Only after the moving party has made such a showing does the burden shift to the opposing party
to show that a genuine issue of fact remains. See Fed. R. Civ. P. 56(e).
To establish the existence of a genuine issue of material fact, the non-moving party must
make an adequate showing as to each element of the claim on which the non-moving patty will
bear the burden of proof at trial. See Celotex, 477 U.S. at 322-23; see also Taylor v. List, 880
F.2d 1040, I 045 (9th Cir. 1989). The opposing patty may not rest on conclusory allegations or
mere asse1iions, see Taylor, 880 F.2d at 1045; Leer v. 1\Iurphy, 844 F.2d 628, 631 (9th Cir.
1988), but must come forward with significant probative evidence, see Liberty Lobby, 477 U.S.
at 249-50; Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). The evidence set forth by the nonmoving patty must be sufficient, taking the record as a whole, to allow a rational jmy to find for
the non-moving pmty. See lvfatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Taylor, 880 F.2d at I 045.
DISCUSSION

This is a relatively straightforward maritime tort claim of negligence. Maritime
negligence causes of action include the usual elements: (1) the existence of a duty; (2) breach of
that duty; (3) proximate cause; and (4) damages. See Morris v. Princess Cruises, Inc., 236 F.3d
1061, 1070 (9'h Cir. 2001 ). The existence of a duty is an issue of law properly resolved on
summary judgment. Tindall v. United States, 901 F.2d 53, 56 (9'h Cir. 1990).
As background infmmation, I first note that neither White nor White's vessel is a party to
this lawsuit.' This is somewhat significant because under maritime law it is well-settled that a
2

Although Plaintiff argued in his memoranda that summmy judgment should be denied
because questions of fact exist regarding White's negligence, Plaintiff agreed at oral argument
that only the Defendants' negligence is at issue for purposes of this summary judgment motion.
Page 6 - OPINION AND ORDER

moving vessel in navigation which strikes a stationary object is presumptively at fault. The
Oregon, 158 U.S. 186, 193 (1895). "Ultimately, the presumption derives from the common-

sense observation that moving vessels do not usually collide with stationary objects unless the ·
vessel is mishandled in some way." American Petrofina Pipeline Co. v. 1'vJIV Shako Maru, 837
F.2d 1324, 1326 (5 1h Cir. 1988). Applying this rule means White (or, more accurately, his vessel)
is presumptively at fault for aBiding with the dolphin. However, this presumption of fault is not
determinative of sole liability. See, e.g. Bessemer & Lake Erie R.R. Co. v. Seaway Marine
Transport, 596 F.3d 357, 362 (61h Cir. 201 0) ("[n]ot unlike the doctrine of res ipsa loquitur, the
Oregon Rule creates aprimafttcie case of negligence, not a final case of sole negligence."); City
of Chicago v. i'vJIV Morgan, 375 F.3d 563, 572 (7'h Cir. 2004) (Oregon Rule presumption "merely

addresses a party's burden of proof and/or burden of persuasion; it is not a rule of ultimate
liability.") Under maritime law, liability for damage is allocated "proportionately to the
comparative degree of their fault." United States v. Reliable Transfer Co., 421 U.S. 397,411
(1975). Accordingly, one of the ways the Oregon Rule presumption can be rebutted, in whole or
in pmi, is through evidence that the stationary object is in some way at fault. Wardell v. Dept. of
Transp., 884 F.2d 510, 513 (91h Cir. 1989). So, even though White is presumed to be at fault as

the vessel that struck a stationary object, there is room in maritime law to find comparative fault
in the stationary object.
Plaintiff argues that Defendants breached their duty of reasonable care, and that they
violated a statutory duty. Defendants contend they fulfilled any duties owed to Plaintiff, and that
they did not violate a statut01y obligations. I agree with Defendants.

Page 7 - OPINION AND ORDER

1. Duty of Reasonable Care Under the Circumstances
Defendants argue that they fulfilled their duty as a wharfinger, and as a result no breach
can be found to supp011 Plaintiffs negligence claim. A "wharfinger" is one who owns or
operates a wharf, dock or pier which may include pilings and dolphins. The duty of a wharfinger
is well-settled and has been described as follows:
[A] wharfinger is not the guarantor of the safety of a ship coming to his wharf. He
is, however, under a duty to exercise reasonable diligence to furnish a safe betth
and to avoid damage to the vessel. This includes the duty to ascettain the
condition of the berth, to make it safe or wam the ship of any hidden hazard or
deficiency known to the wharfinger or which, in the exercise ofreasonable care
and inspection, should be known to him and not reasonably known to the ship
owner. But there is no duty on the part of a wharfinger to provide a betth with
safe sunoundings (other than an entrance and an exit) or to wam that hazards exist
in the vicinity ....
Port ofSeattle v. l'v!/V Saturn, 562 F.Supp. 70, 72 (W.D. Wash. 1983); See also, Smith v. Burnett,
173 U.S. 430,433 (1899). In addition, a wharfinger is not required to wam of obstructions or
conditions that are open and obvious. General Construction Co. v. Isthmain Lines, Inc., 259
F.Supp. 336, 339 (D. Or. 1966).
For example, a wharfinger has a duty to repair a pile, or to warn about a pile, that has
broken and therefore become an unknown hazard to vessels using a wharf or pier. See, Berwind
White Coal }vfining Co. v. City ofNew York, 48 F.2d 105, 106-07 (2nd Cir. 1931). In contrast, a
wharfinger does not have a duty to warn about a damaged pile fender when its vety appearance
reveals it is under construction. General Constr., 259 F.Supp. at 337. In each case, the duty of a
wharfinger is only to warn about the unknown hazardous condition of a stationary object that a
reasonable vessel owner would not otherwise recognize. It does not include a duty to warn of the
mere existence of an above-water stationaty object.

Page 8 - OPINION AND ORDER

Plaintiff argues that the Defendants' characterization of the wharfinger's duty is
inapplicable in this instance because Defendants were not acting as a wharf for hire. Instead,
Plaintiff was a passer-by and not one invited or intending to use the wharf. As such, Plaintiff
urges the court to simply apply a standard of reasonable care under the circumstances. To that
end, Plaintiff argues Defendants' duty to vessels passing-by in the dark is to wam of the
dolphin's presence by either marking or lighting it, or to even remove the dolphin completely
from the waterway. Of particular note, Plaintiff contends the nature of Defendants' docking
facility had changed over the years. Once an active dock, the facility became largely unused.
Plaintiff posits that Defendants may have had no duty to mark or light the dolphin when other
activities at the dock would draw attention to the dangers that lie within. However, since the
activity level declined or even stopped, Plaintiff asserts this is reason to impose a duty to mark,
light or even remove the dolphin altogether.
Plaintiff is generally correct that duties can and do change based on a variety of factors.
"Prosser and other commentators have made it plain that this concept of duty is a changing one.
Different circumstances, different parties, and changing community standards can impose a duty
where one did not exist before." Wilcox v. Carina }vfaritime Corp., 586 F.Supp. 1475, 1478
(E.D. Tex. 1984). Ultimately, the scope of an actor's .duty involves a "number of factors, most
.
notably the foreseeability of the harm suffered by the complaining party." Consolidated
Aluminum Corp. v. C.F. Bean C01p., 833 F.2d 65, 67 (5 1h Cir. 1987).

[the risks] against which the actor is required to take precautions are those which
society, in general, considers sufficiently great to demand preventive measures.
No person can be expected to guard against hmm t!·om events which are not
reasonably to be anticipated at all, or are so unlikely to occur that the risk,
although recognizable, would conunonly be disregarded.

Page 9 - OPINION AND ORDER

Hernandez v. Trawler }vfiss Vertie !'viae, Inc., 187 F.3d 432,437 (4'" Cir. 1999) (quoting Prosser
and Keeton on Torts§ 31, at 170.)
Here, there is little support for Plaintiffs theory that Defendants had a duty to mark, light
or remove the dolphin. Regular boat traffic does not travel in the area near the docking facility or
dolphin. Neither the dolphin nor the docking facility has been struck in the past, nor have there
been reports of near misses. Defendants' representative Richard Garber testified that the closest
he had ever seen a boat pass by the docking facility was "at least 100 feet." (PI's Response, #19,
Att. I (Gutzler Dec!. at Ex. 5 p. 31).) White's testimony confirms that travel so close to the
Oregon shore is uncommon and dangerous. White knew his vessel was too far left and so
attempted to maneuver right. After turning right, White turned back to the left to go around a
slow moving boat which he knew returned him perilously close to the Oregon shore - an area
where boats do not travel because it is dangerous. In sum, the harm incurred by Plaintiff was not
reasonably foreseeable because the dolphin is in an area of the waterway that boats "passing by"
should not, and do not, travel. In addition, the dolphin itself is a large structure extending
between 4 and 26 feet above the water - it is not a hidden danger, but is the kind of structure that
one would expect a reasonably competent boat operator would be on the lookout for and avoid,
even in the dark.
On this record, that the use of the docking facility has declined over the years does not
change my analysis. Plaintiff submitted no evidence that it was custommy or industry practice to
mark, light or remove such structures after a period of non-use. There is no evidence by way of
expert testimony that a facility no longer in use creates a greater danger to boats passing by, and
as a result incurs a duty to mark, light or remove its fixtures. There are no studies Plaintiff has
Page 10- OPINION AND ORDER

pointed out to support the contention that a dolphin owner's duty changes under these
circumstances, and there is no anecdotal evidence or case law cited by Plaintiff to support this
position. Finally, there is no evidence that Defendants had a statutory or regulatory duty to mark
or light the dolphin, or to remove it when the docking facility stopped being used. The absence
of such a rule is evidence that no duty exists. Wilcox, 586 F.Supp. at 14 78.
This analysis tends to circle back to and explain the rationale behind the Oregon Rule
which is that a vessel that strikes a stationmy object usually does not do so unless it was
mishandled. Here, it was dark and rainy. White was not using his GPS. Plaintiff had stopped
aiding in navigation because he got too cold. White knew he was too far left and in great peril,
but by then it was too late to avoid hitting the dolphin. Comis are still obligated to independently
analyze whether any fault can be attributed to the stationmy object. Construing the facts in the
light most favorable to Plaintiff, no genuine issue of material fact exists with respect to whether
Defendants had a duty to mark, light or remove the dolphin. They did not.

2. The Pennsylvania Rule
Under the Pennsylvania Rule, a party that violates a statutory rule intended to prevent
collisions or allisions is presumed to be the contributing, if not the sole, cause of the collision.
The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 136 (1873). If a pmiy establishes a violation of a
statutory rule, the Pennsylvania Rule shifts the burden of proof to the party in violation of the
statutory rule to prove that "the violation could not reasonably be held to have been a proximate
cause of the collision." Trinidad Corp. v. S.S. Keiyoh Aiaru, 845 F.2d 818,824 (9'h Cir. 1988).
The pmiy seeking to invoke the Pennsylvania Rule has the burden to prove that there was a
statutory or regulatory violation. Halt 65, LLC v. Kreitzburg, 658 F.3d 1243, 1251-52 (ll'h Cir.

Page 11 - OPINION AND ORDER

2011). The Pennsylvania Rule is a mle regarding the burden of proof, not a rule of ultimate
liability. See American River Trans. Co. v. Kavo Kaliakra SS, 148 F.Jd 446,449 (5'" Cir. 1998).
Plaintiff asserts the Pennsylvania Rule applies here because Defendants allegedly violated
a term in the 2000 Army Corps of Engineers permit to build the dolphin. The term Plaintiff
points to is a provision that requires transfer of the pe1mit upon sale of the property. Plaintiff
offers a strained interpretation that the transfer term lived on after permit's expiration. Clearly,
the 2000 Army Corps of Engineers petmit is a construction permit which required the dolphin to
be built to cetiain specifications. Within a matter of months, the dolphin was built and a
Compliance Certification establishes all the tetms of the petmit were fulfilled. Based on this
evidence, I find that Defendants were not required to transfer the permit after construction of the
dolphin was completed, and as a result Defendants did not violate the transfer provision of the
petmit.
Even if Defendants violated a term in the permit, at best it would amount to a contractual
violation. Violations of contractual provisions do not amount to statut01y or regulatmy
violations for purposes of invoking the Pennsylvania Rule. Evergreen Intern., S.A. v. Norfolk
Dredging Co., 531 F.3d 302,310 (2008).

Moreover, the Pennsylvania Rule is limited to violations of statutes or regulations
"intended to prevent the catastrophe which actually transpired." Dir. Gen. ofIndia Supply
2vfission v. S.S. kfaru, 459 F.2d 1370, 1375 (2d. Cir. 1975). In other words, "the injury must be

of the kind intended to be prevented by the statute or regulation that the defendant violated."
2vfacDonald v. Kahiko/u, Ltd, 581 F.3d 970, 975 (2009). Plaintiff has not made this threshold

causal connection. A contractual term requiring transfer of a dolphin construction petmit has no
Page 12 - OPINION AND ORDER

bearing on the safety of the dolphin to recreational boaters in the relevant waterway. If
Defendants would have transferred the petmit as Plaintiff suggests they should have, it would not
have made the allision less likely to occur. The dolphin would still have been in its permitted
location and in its permitted condition at the time of the allision.
Plaintiffs reliance on City ofPortland v. Luckenbach S.S. Co., 217 F.2d 894 (9'h Cir.
1954) is inapposite. There, the city positioned the boom of a crane over the Willamette River,
left it there for over two and a half years, and never obtained an Army Corps of Engineers petmit
to maintain a boom in the waterway. Because the city did not obtain a petmit, the boom was
considered an unauthorized obstruction to navigation in violation of the River and Harbors Act,
33 U.S. C. § 403. City ofPortland, 217 F.2d at 898. In stark contrast, Defendants here applied
for, obtained, and successfully fulfilled the requirements of a permit from the Army Corps of
Engineers, and therefore complied with the River and Harbors Act. In any event, the City of
Portland did not involve application of the Pennsylvania Rule and in that regard is no help to
Plaintiff.
For the reasons stated above, Defendants did not violate a statute or regulation intended
to prevent this type of allision, and as a result the Pennsylvania Rule does not apply.

Ill
Ill
Ill
Ill
Ill
Ill
Page 13 - OPINION AND ORDER

CONCLUSION

Defendants' motion for summary judgment (#14) granted, and Plaintiffs claims are
dismissed with prejudice. Final judgment should be prepared.

Dated this 7'h day ofl\,Iay, 2013.

(~

.

(-~)

Kil/~. \C:'f\u/2-_.
Honorable Paul Papak
United States Magistrate Judge

Page 14- OPINION AND ORDER