NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 10 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY HOLZHAUER, Individually and as No. 17-15092 the Personal Representative of Harry 17-15763 Holzhauer, deceased, D.C. No. 3:13-cv-02862-JST Plaintiff-counter- defendant-Appellee,

MEMORANDUM*

v.

GOLDEN GATE BRIDGE HIGHWAY &

TRANSPORTATION DISTRICT, a governmental entity,

Defendant-cross-defendant- cross-claimant-Appellant,

DAVID P. RHOADES, an Individual,

Defendant-cross-defendant- cross-claimant-Appellee.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Argued and Submitted June 14, 2018 San Francisco, California

Before: SCHROEDER and GOULD, Circuit Judges, and DU,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. This case concerns a marine accident involving a pleasure speedboat and a

passenger ferry in San Francisco Bay. In this consolidated appeal, involving just

some aspects of the litigation, the Golden Gate Bridge Highway & Transportation

District (Golden Gate Bridge) appeals the district court’s admission of a United

States Coast Guard interview summary and the district court’s denial of its petition

to limit liability. Addressing each of these issues in turn, we affirm.

1. Appellant Golden Gate Bridge argues that it is entitled to a new trial

because the district court admitted a Coast Guard interview summary even though

46 U.S.C. § 6308 prohibits the admission of reports on marine casualty

investigations. Appellees Rhoades and Holzhauer contend that 46 U.S.C. § 6308

does not apply because the summary was part of the investigative file—not part of

the Coast Guard’s formal report. Appellees Rhoades and Holzhauer further argue

that the summary is admissible under the public record exception.

The statutory and regulatory law here seem clear in their aim to exclude

reports of marine casualty investigations: The statute provides that except as

permitted under other law, “no part of a report of a marine casualty investigation

conducted under . . . this title, including findings of fact, opinions,

recommendations, deliberations, or conclusions, shall be admissible as evidence or

** The Honorable Miranda M. Du, United States District Judge for the District of Nevada, sitting by designation.

2 subject to discovery in any civil or administrative proceedings, other than an

administrative proceeding initiated by the United States.” 46 U.S.C. § 6308(a).

The relevant regulation states, “investigations of marine casualties and accidents

and the determinations made are for the purpose of taking appropriate measures for

promoting safety of life and property at sea, and are not intended to fix civil or

criminal responsibility.” 46 C.F.R. § 4.07-1.

The district court initially denied Golden Gate Bridge’s motion in limine to

exclude the Coast Guard’s summary because Golden Gate Bridge sought to

prohibit the summary’s use but had given the report to its expert and the expert had

relied on the summary. At trial, the district court permitted Rhoades to use the

interview summary to impeach Captain Shonk, the ferry captain, concluding that §

6308 did not prohibit its use and that the public record exception to hearsay

applied. After the trial, Golden Gate Bridge moved for a new trial arguing that the

admission of the interview summary was an evidentiary error that tainted the

outcome. The district court denied Golden Gate Bridge’s motion for a new trial,

concluding that it did not err in admitting the investigation summary, and that issue

has now made its way to us on this appeal. The district court concluded that §

6308 did not bar admission of the interview summary because the interview

summary did not constitute “findings of fact, opinions, recommendations,

3 deliberations, or conclusions of the Coast Guard,” even though the protections of §

6308 were expansive.

Reviewing the denial of the motion for new trial for abuse of discretion and

the interpretation of the statue de novo, we conclude that the district court did not

err. We start with the language of the statute when conducting statutory

interpretation. U.S. ex rel. Hyatt v. Northrop Corp., 91 F.3d 1211, 1213 (9th Cir.

1996). Section 6308 prohibits any “part of a report of a marine casualty

investigation” from being used as evidence in civil or administrative proceedings.

The statute specifies that parts of a report include “findings of fact, opinions,

recommendations, deliberations, or conclusions.” 46 U.S.C. § 6308. But here, we

have a summary of an interview. We are persuaded by the reasoning in In re

Complaint of Danos & Curole Marine Contractors, Inc., 278 F. Supp. 2d 783, 785

(E.D. La. 2003), wherein a district court held that photographs taken by Coast

Guard personnel were admissible. Id. There the court concluded that the Coast

Guard’s “photographs do not provide findings of fact, opinions, recommendations,

deliberations, nor conclusions, [instead], they merely illustrate the condition of the

objects depicted in the photos as they existed on September 19, 2002 at the time

that the pictures were taken.” Id. That court reasoned that while “the list provided

in 46 U.S.C. § 6308(a) is illustrative and not exclusive, [it did] not believe that the

photographs are the type of conclusory items which the statute seeks to exclude.”

4 Id. The court expressly declined to adopt such an expansive reading of 46 U.S.C.

§ 6308(a). Id.

Similarly, the interview summary here does not contain the Coast Guard’s

findings of fact or conclusions. The one-page summary instead documents what

Captain Shonk said when asked questions about the incident. In his interview with

the Coast Guard, Captain Shonk recalled, “He did not make any cell phone calls or

texts during the transit when the collision happened.” This statement was used to

impeach Captain Shonk on cross-examination because he had stated on direct that

he had made an “operations” call when maneuvering away from the dock.

Admission of this statement does not conflict with the letter or purpose of § 6308.

See Guest v. Carnival Corp., 917 F. Supp. 2d 1242, 1246 (S.D. Fla. 2012). The

statute was drafted to prevent Coast Guard findings of liability from being used to

impose liability in civil contexts. See 46 C.F.R. § 4.07-1(b) (“The investigations of

marine casualties and accidents . . . are not intended to fix civil or criminal

responsibility.”). Admission of the one-page interview summary for purposes of

impeachment did not violate that purpose because the summary does not contain

conclusory comments or judgments on liability and was not used directly to “fix

civil or criminal responsibility.” We affirm the district court’s denial of the motion

for a new trial based on the use at trial of the Captain Shonk interview summary.

5 Also, the interview summary does not constitute inadmissible hearsay under

the Federal Rules of Evidence because the interview summary is admissible under

the public record exception and as an admission of a party opponent. The public

record exception to hearsay applies when a record or statement of a public office

sets out factual findings of a legally authorized investigation and the opponent does

not show lack of trustworthiness. Fed. R. Evid. 803(8). Here, the interview

summary was created as part of the Coast Guard’s practice of investigating all

boating accidents in navigable waters. There is also no argument that the summary

lacked trustworthiness. Additionally, there is no hearsay barrier to the admission

of the statements in summary. The statement of a party opponent, in this case

Captain Shonk as an employee of Golden Gate Bridge, is not hearsay. See Fed. R.

Evid. 801(d)(2)(D). We affirm.

2. Golden Gate Bridge argues that the district court erred by denying its

Petition for Limitation of Liability because the district court wrongly concluded

that Golden Gate Bridge had knowledge or privity with Captain Shonk. Golden

Gate Bridge argues that no evidence showed that its management knew Captain

Shonk made routine operations calls while adjusting the speed and course of the

ferry, and that no evidence was provided to contradict its own evidence that the

ferry operator had discretion in making operational communications. Further,

there was no evidence that the Golden Gate Bridge was “on notice” of similar

6 prior incidents. Appellees Rhoades and Holzhauer argue that there was evidence

that showed that Golden Gate Bridge had privity and knowledge of Captain

Shonk’s action—the use of the cellphone while operating the ferry—and that the

district court’s findings were not “illogical, implausible, or without support on

inferences that may be drawn from the facts in the record.”

The Limitation of Liability Act limits shipowner liability arising from the

unseaworthiness of the vessel or the negligence of the vessel’s crew to the value of

the boat unless the condition of unseaworthiness or the act of negligence was

within the shipowner’s “privity or knowledge.” 46 U.S.C. § 30505(b); In re

BOWFIN M/V, 339 F.3d 1137 (9th Cir. 2003). The shipowner has the burden of

proving that the act or condition was outside its privity and knowledge after the

claimant establishes the act or condition caused the loss. In re BOWFIN M/V, 339

F.3d at 1138. Whether a defendant is without privity or knowledge is a question of

fact. See Coryell v. Phipps, 317 U.S. 406, 411 (1943).

The district court denied Golden Gate Bridge’s petition, concluding that

Golden Gate Bridge did not meet its burden of showing lack of privity or

knowledge. The district court agreed with the parties that the first element—

whether a negligent act caused the plaintiffs’ harm—was satisfied based on

Captain Shonk’s use of a personal cell phone moments before the collision. The

district court then concluded that Golden Gate Bridge did not meet its burden of

7 showing lack of privity or knowledge because Golden Gate Bridge did not have a

policy against use of personal cell phones by captains, because Golden Gate Bridge

knew that its captains carried personal cell phones with them while operating the

ferries, and because Golden Gate Bridge permitted the use of personal cell phones.

We conclude that the district court did not err. We review the district court’s

factual findings for clear error. See In re BOWFIN M/V, 339 F.3d at 1138;

Hercules Carriers, Inc. v. Claimant State of Fla., Dep’t of Transp., 768 F.2d 1558,

1565 (11th Cir. 1985). Privity or knowledge does not require actual knowledge,

but includes anything the shipowner could have discovered with reasonable

investigation. Hercules Carriers, Inc., 768 F.2d at 1564. Here, Captain Shonk

was on his personal cell phone at 4:07 p.m. for two minutes, and the accident

occurred at 4:09 p.m. Golden Gate Bridge did not have a policy against the use of

personal cell phones, and allowed its ferryboat operators to carry personal cell

phones. Those facts are sufficient to establish knowledge. It was not clear error

for the district court to find that Captain Shonk’s cell phone use contributed to his

distraction while moving the ferry, and that Golden Gate Bridge’s lack of a policy

against cell phone use and ability to discover with “reasonable investigation” that

ferry operators used their cellphone while operating the ferry gave it constructive

knowledge that negligence could occur. We affirm the district court’s denial of the

petition to limit liability.

8

AFFIRMED.

9