Cynthia Sue Reber Courtney Brianne Reber, by and Through Cynthia Sue Reber, Guardian Ad Litem v. United States

951 F.2d 961 Cynthia Sue REBER; Courtney Brianne Reber, By and Through Cynthia Sue Reber, Guardian Ad Litem, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 89-55390. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 5, 1990. Decided Aug. 13, 1991. As Amended Dec. 13, 1991. Michael W. McCann, Cappello & Foley, Santa Barbara, Cal., for plaintiffs-appellants. Warren A. Schneider, Asst. Atty. in Charge, U.S. Dept. of Justice, San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Southern District of California. Before HUG, BEEZER and NOONAN, Circuit Judges. HUG, Circuit Judge: 1 Cynthia Reber and her daughter (the "Rebers") brought a wrongful death action against the United States. The Rebers alleged that either an overhead military shell or an unexploded military ordnance on the sea floor caused the destruction of the Cindy Fay, a fishing vessel, thereby causing the death of Boyd Reber. The United States answered the Rebers' allegations, denying any responsibility for Reber's death. After a bench trial, the district court entered judgment for the United States, holding that the Rebers…

Cynthia Reber and her daughter (the “Rebers”) brought a wrongful death action against the United States. The Rebers alleged that either an overhead military shell or an unexploded military ordnance on the sea floor caused the destruction of the Cindy Fay, a fishing vessel, thereby causing the death of Boyd Reber. The United States answered the Rebers’ allegations, denying any responsibility for Reber's death. After a bench trial, the district court entered judgment for the United States, holding that the Rebers failed to prove by a preponderance of the evidence that the destruction of the Cindy Fay was caused by an underwater explosion or an overhead shell.

FACTS

Boyd Reber was an experienced commercial fisherman who fished the waters off San Clemente Island. On February 21, 1986, Reber and Frank Germano, his sole crewman, departed San Pedro, California on board the Cindy Fay bound for a commercial fishing trip to San Clemente Island. San Clemente Island is a United States *963 Naval Reservation where missile testing, artillery practice, and shore bombardment exercises have been conducted for more than 40 years. The areas in which these activities are conducted are subject to…

dissenting:

Cynthia Sue (“Cindy”) Reber, the wife of Boyd Philip Reber, and Courtney Brianne Reber, his daughter, through her mother as guardian ad litem, brought this action against the United States. They sued under the Public Vessels Act, 46 U.S.C. § 781 et seq., charging that ships of the United States Navy had negligently caused Boyd Reber’s death. A man who fished for his living, Boyd Reber had been killed at sea. His wife and daughter contended that he had been killed by live ordnance of the Navy. In their view he, his crewman Frank Germano, and his boat the Cindy Fay had been blown up by a naval bomb.

The judgment of the district court must be upheld, although we would have weighed the evidence differently, if the error is not clear. Anderson v. City of Bessemer City, 470 U.S. 564, 573 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985). If there are “two permissible views of the evidence,” the factfinder’s choice cannot be clearly erroneous. Id. at 574 , 105 S.Ct. at 1511 . If the district court’s view is “plausible in light of the record viewed in its entirety,” and not contradicted by extrinsic evidence, we may not reverse. Id.

Measured by this generous standard, the…