Kitanihon-Oi Steamship Company v. General Construction Company, and Sacramento-Yolo Port District

The issue in this case is whether the compulsory pilotage clause in the tariff of the Sacramento-Yolo Port District (the Port) creates an implied warranty that its commissioned pilots will perform nonnegli-gently. The particular arrangement by which pilots are provided for the Sacramento Deepwater Ship Channel (the Channel) makes this case one of first impression. We hold that because the pilots are not employed or paid by the Port, the Port’s role in commissioning the pilots and requiring their use creates no implied warranty of nonne-gligent performance.

FACTS

This action stems from the grounding of the vessel M/V Oji Maru No. 1 (Oji Maru), a bulk cargo carrier under the Japanese flag, in the Sacramento River on the night of February 12, 1977. The plaintiff-appellant is Kitanihon-Oi Steamship Company (Shipowner), a Japanese corporation and the owner of the Oji Maru. After loading a cargo of wood chips for Japan at Sacramento, the Oji Maru proceeded downriver under the pilotage of Captain Franklin Pierce, a pilot commissioned by the Port. At Three Mile Slough, the ship encountered the dredge Missouri, which was improperly lit and improperly attended. These circumstances, plus…

dissenting:

I am not persuaded that this is a case of first impression. This case cannot be distinguished in a principled way from City of Long Beach v. American President Lines, 223 F.2d 853 (9th Cir. 1955), and we should apply its holding here.

The mere fact that this small cadre of compulsory pilots is not directly employed or paid by the Port is not dispositive. As urged by Shipowner, the economic reality and substance is the same here as in City of Long Beach. The realistic situation is that the Port has plenary power to reject any pilot not commissioned by it. Through its tariff and the negotiations with Bay Area pilots and maritime associations, the crucial fact, like City of Long Beach, is that the Port has arrogated unto itself total control of pilotage for its own benefit and for the benefit of a few select pilots.

Finally, the existence of insurance or not has nothing to do with the determination of the liability issue in this case.

There is an implied covenant to perform the personal pilot service with the necessary skill and without neglect. I respectfully dissent and would reverse the district court’s contrary ruling.

678 F.2d 109 KITANIHON-OI STEAMSHIP COMPANY, Plaintiff-Appellant, v. GENERAL CONSTRUCTION COMPANY, et al., Defendants, and Sacramento-Yolo Port District, Defendant-Appellee. No. 81-4146. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 11, 1982. Decided May 26, 1982. Eric Danoff, Graham & James, San Francisco, Cal., for plaintiff-appellant. Donald F. Farbstein, Farbstein, Brown & Pillsbury, San Mateo, Cal., argued for defendant-appellee; Philip L. Pillsbury, Jr., Farbstein, Brown & Pillsbury, San Mateo, Cal., on brief. Appeal from the United States District Court for the Northern District of California. Before GOODWIN, SNEED, and ANDERSON, Circuit Judges. SNEED, Circuit Judge: 1 The issue in this case is whether the compulsory pilotage clause in the tariff of the Sacramento-Yolo Port District (the Port) creates an implied warranty that its commissioned pilots will perform nonnegligently. The particular arrangement by which pilots are provided for the Sacramento Deepwater Ship Channel (the Channel) makes this case one of first impression. We hold that because the pilots are not employed or paid by the Port, the Port's role in commissioning the…