Pedro Pinaula v. Banga Baidya

MEMORANDUM

The district court found that comparative negligence was shared equally between plaintiff, Pedro Pinaula, and defendant, Banga Baidya. It estimated that Pinaula had been injured for about six months and awarded damages accordingly. Pinaula appeals the finding of comparative negligence and the finding that he was injured for six months. We reverse and remand for further proceedings.

1. The district court made an error of law in finding that Pinaula was negligent. Courts sitting in admiralty “look[ ] to the common law in considering maritime torts.” Royal Ins. Co. of Am. v. Sw. Marine, 194 F.3d 1009, 1015 (9th Cir.1999) (internal quotations and citations omitted). The common law requires a fact-finder to consider “the customs of the community, or of others under like circumstances,” as a factor when determining whether conduct is negligent. Restatement (Second) of Torts § 295A (1965); see also 7 N. Mar. I.Code § 3401 (2011) (adopting “the rules of the common law, as expressed in the restatements of the law” in the absence of contrary local law). Here, the district court failed to consider evidence showing that the use of M-boats is customary among fishermen in the…