Petition for Writ of Certiorari — Reber v. United States

IN THE SUPREME COURT

OF THE

UNITED STATES

October Term, 1992

CYNTHIA SUE REBER and COURTNEY

BRIANNE REBER, By and Through

Cynthia Sue Reber, Guardian Ad Litem,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

A. Barry Cappello, Counsel of Record

Frances E. Komoroske

CAPPELLO, FOLEY & BEZEK

Attorneys At Law

831 State Street

Santa Barbara, California 93101

Telephone: (805) 564-2444

Attorneys for Petitioners

Cynthia Sue Reber and

Courtney Brianne Reber

QUESTION PRESENTED

Is the doctrine of res ipsa loquitur still viable in maritime

disaster cases?

ii

TABLE OF CONTENTS

Page

QUESTION PREEGEMEED 2. cc ccc ete e san i

TABLE OF AUTIRORII ES cc cee eee wean ii

OPINION BELOW .................00. “8

a et ee er re ey ere ee 2

STATUTORY PROVISION INVOLVED ....... 2

DEATEMEEING CO} TRMGAIEE <6 cca de ce anes 2

REASONS FOR GRANTING THE WRIT ....... 5

1. The Lower Court’s Decision Clearly Conflicts

With The Decisions Of This And Other Courts

Regarding Res Ipsa Loquitur. ........... 5

2. The Decision Was Wrong And Resulted In A

Sue TUDOR sk ek ek 6D kk 7

3. There Is A Need For Uniformity In The Applica-

tion Of Res Ipsa Loquitur To Victims Of Maritime

bo . eee ee ee ee ee eee 7

CON LAR =... «+ bea eee es 8

iii

TABLE OF AUTHORITIES

Page

CASES:

Goodwin v. United States

(E.D.N.C. 1956) 141 wep. 445 wk kk 6, 7

Johnson v. United States

kL 6,7

Leathem Smith-Putnam Navigation Co. v. Osby

(7th Cir. 1935) 79 F.2d 280,

cert. denied (1935) 296 U.S.653 ........... 7

The Rambler

(2nd Cir. 1923) 290F.791................

Reid v. Fargo

(1916) 241U.S.544 .........0.0....... 7

Skeels v. United States

(W.D.La. 1947) 72 he yy 6, 7

STATUTES:

28 United States Code section 1254 ............ 2

46 United States Code section 741, et eer ee 2

46 United States Code section 781, et a Vee eee 2

RULE:

Rules of Supreme Court of the United States,

eee a ec sk ke ee cece 2

iv

LIST OF APPENDICES

Opinion of The Ninth Circuit as Amended ... . App. A

Order of the Ninth Circuit Denying Plaintiffs’

Petition for Rehearing and Suggestion for

Rehearing EnBanc ................., App. B

No.

IN THE SUPREME COURT

OF THE

UNITED STATES

October Term, 1992

CYNTHIA SUE REBER and COURTNEY

BRIANNE REBER, By and Through

Cynthia Sue Reber, Guardian Ad Litem,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioners Cynthia Sue Reber and Courtney Brianne Re-

ber, by and through Cynthia Reber, Guardian Ad Litem, pray

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Ninth

Circuit, filed August 13, 1991 and amended December 13,

1991, on which rehearing was denied on October 28, 1991.

2

OPINION BELOW

The published opinion of the United States Court of

Appeals for the Ninth Circuit, as modified on December 13,

1991, appears in Appendix A. The order of the Ninth Circuit

denying the petition for rehearing and rejecting the suggestion

for rehearing en banc appears in Appendix B.

JURISDICTION

Jurisdiction of the District Court of the Southern District

of California was based on 46 U.S.C. section 741, et seq. (Suits

in Admiralty Act), and 46 U.S.C. section 781, et seq. (Public

Vessels Act), as well as the parties’ stipulation to the maritime

jurisdiction of the court.The judgment of the Court of Appeals

was Originally entered on August 13, 1991 and amended on

December 13, 1991. A timely petition for rehearing and sug-

gestion for rehearing en banc was denied by the Court of

Appeals on October 28, 1991. This petition for certiorari was

filed within ninety days of that date. Jurisdiction of this Court

is invoked under 28 U.S.C. section 1254(1) and Rule of the

Supreme Court of the United States 10.1(a), and (b).

STATUTORY PROVISION INVOLVED

None.

STATEMENT OF THE CASE

This case involves the mysterious death at sea of a fisher-

man, the husband and father, respectively, of the two petition-

ers, who sued the United States for negligence. In trying to

solve the mystery of what killed the fisherman and his crewmate

and destroyed their boat, the Cindy Fay, a number of hypothe-

ses were advanced, ranging from Martians and pirates to on-

board fuel explosions. However, by the time of trial, the parties

had narrowed the possible causes to only two.

3

There were no eyewitnesses to the accident, and both

sides relied extensively on expert testimony. Petitioners’ expert

presented a detailed scientific and engineering analysis of the

evidence. That analysis demonstrated that a subsurface explo-

sion caused by unexploded military ordnance caught in the

Cindy Fay’s net, or a shell fired during military exercises, was

the only plausible explanation for the incident.

The government’s expert witness agreed that this subsur-

face explosion theory was credible, plausible, and consistent

with the bulk of the evidence. However, relying on four narrow

evidentiary premises, the government's witness opined that the

more plausible explanation of what destroyed the Cindy Fay,

and the explanation most consistent with all the evidence, was

that a wave at least 27-feet high had smashed into the boat and

destroyed her.

Petitioners’ cross-examination of the government’s wit-

ness systematically eliminated the four premises on which his

opinion was based. That expert also admitted that he did not

really have an opinion about what caused the accident, and that

if his wave theory were ruled out, then the only credible expla-

nation for the accident was an underwater expiosion.

In rebuttal petitioners submitted the testimony of two

more expert witnesses. The first expert, a world-renowned

authority on waves from Scripps Institute of Oceanography,

irrefutably demonstrated that it was physically impossible for

a 27-foot wave to have been in the vicinity of the Cindy Fay

when she was destroyed. The second expert, the marine engi-

neer who built the Cindy Fay, demonstrated that even if there

had been such a huge wave, that wave could not have caused

the type and extent of damage the Cindy Fay had suffered, as

indicated by the debris that had been recovered at the site.

In the face of this overwhelming evidence, Judge J. Law-

rence Irving of the District Court inexplicably found in favor of

the government. In doing so, the District Court totally disre-

4

garded: (1) The fatal admissions of the government’s expert on

cross-examination, and (2) petitioners’ entire rebuttal case.

These errors were compounded by failing to address whether

petitioners’ primary theory of recovery, res ipsa loquitur, was

even applicable. No discussion whatsoever of these three key

points appeared anywhere in the District Court’s findings of

fact and conclusions of law.

That decision was upheld in the published opinion of the

Ninth Circuit, which also totally ignored petitioners’ rebuttal

case and the admissions of the government’s expert. The Ninth

Circuit also held that it was unnecessary for the District Court

to make findings on res ipsa because petitioners had failed to

prove the element of causation, and therefore were not entitled

to rely on the doctrine. This was erroneous because this Court

and the Ninth Circuit have both held that res ipsa may be used

to prove causation in cases such as this.

In a strong and well-reasoned dissent, Judge Noonan ad-

dressed the many significant inconsistencies in both the District

Court’s and the Ninth Circuit’s decisions. Judge Noonan felt so

strongly about the injustice that would result to petitioners if

this case were not reheard that he amended the opinion in

December, 1991 to add:

“As it has been impossible for Cynthia Sue Re-

ber and her child through a judicial proceeding

to obtain compensation for the negligence of the

Navy, I have no doubt that Congress will take on

the responsibility and make good for the wrong

committed by agents of the federal govern-

ment.” (See, App. A, p. 21a.)

Petitioners filed a petition for rehearing and suggestion for

rehearing en banc, which was denied. This petition followed.

5

REASONS FOR GRANTING THE WRIT

1. The Lower Court’s Decision Clearly Conflicts With The

Decisions Of This And Other Courts Regarding Res

Ipsa Loquitur.

Res ipsa is a legal doctrine which allows victims of acci-

dents caused by unknown or unknowable factors to recover for

their injury. The courts of this country have routinely applied

it in cases such as this, where the plaintiff cannot irrefutably

prove that one particular act caused that injury. For example,

res ipsa was applied in Skeels v. United States (W.D.La. 1947)

72 F.Supp. 372, where a fisherman was killed by an object that

inexplicably fell from the sky during military target practice,

and in Goodwin v. United States (E.D.N.C. 1956) 141 FSupp.

445, where a fishing boat was sunk by an unidentified object six

miles from where the government was conducting practice

bombing missions.

This Court reached a similar result in Johnson v. United

States (1948) 333 U.S. 46, when it applied res ipsa in determin-

ing the cause for an accident in which a seaman was injured at

sea. Similarly, in Reid v. Fargo (1916) 241 U.S. 544, this Court

held that where there are two possible causes for an accident,

res ipsa can be used to prove the one supported by credible

evidence and to reject the cause that is supported by specula-

tion and imagination.

Because courts may not consider either Speculative causes

or causes outside the record, and because the government’s

expert admitted there were only two possible causes of the

Cindy Fay’s demise, the District Court was limited to those two

causes. When petitioners effectively eliminated all of the prem-

ises on which the government’s theory was based and the

government's expert witness admitted that the evidence sup-

ported petitioners’ theory, that left only one cause. It was

6

therefore erroneous for the District Court to ignore res ipsa

and to reject that one cause; it was equally erroneous for the

Ninth Circuit to uphold that decision.

2. The Decision Was Wrong And Resulted In A Substan-

tial Injustice.

Petitioners find themselves in the proverbial Catch-22

position. Because of the nature of the accident and the lack of

witnesses, they could not prove all the elements of negligence

beyond a shadow of a doubt: they therefore relied on res ipsa

since innumerable federal decisions have held they were enti-

tled to do so. (See, e.g., Johnson v. United States, 333 U.S. 46;

Reid v. Fargo, 241 U.S. 541; Leathem Smith-Putnam Navigation

Co. v. Osby (7th Cir. 1935) 79 F.2d 280, cert. denied (1935) 296

U.S. 653; The Rambler (2nd Cir. 1923) 290 F. 791, 792: Goodwin

v. United States, 141 F.Supp. 445; Skeels v. United States, 72

F.Supp. 372.) However, the District Court did not even discuss

res ipsa; it simply held that petitioners had failed to prove

causation, whi istri

The result is that petitioners sustained their burden of

proof, yet are now left remediless. This is petitioners’ last

chance to obtain the justice to which they are entitled, short of

petitioning Congress for relief, as the dissenting opinion of the

Ninth Circuit suggested they do.

3. There Is A Need For Uniformity In The Application Of

Res Ipsa Loquitur To Victims Of Maritime Disasters.

Maritime disasters frequently involve the unexplained dis-

appearance of a ship or the crash of a plane in which the exact

cause of the disaster is unknown. Victims of those disasters

have long been entitled to recover under facts and evidence

similar to those here.

If that is no longer going to be the law of the land, then this

Court should issue an opinion clarifying that point, thereby

7

saving the survivors of those disasters the agony, expense, and

time of pursuing claims under theories that are no longer

viable. Not only will those potential litigants benefit, so will the

courts, which will be faced with fewer of these types of lawsuits

once it is clear that plaintiffs can never prevail in situations such

as this and that the cases which Say they can are wrong

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Ninth Circuit Court of

Appeals.

Respectfully submitted,

A. BARRY CAPPELLO

FRANCES E. KOMOROSKE

Attorneys for Petitioners

(1\1664\A Pet-Cart5 10)

No.

IN THE SUPREME COURT

OF THE

UNITED STATES

October Term, 1992

CYNTHIA SUE REBER and COURTNEY

BRIANNE REBER,By and Through

Cynthia Sue Reber, Guardian Ad Litem,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

CERTIFICATION OF SERVICE

I hereby certify that on this 27th day of January, 1992,

three copies of the Petition for Writ of Certiorari were mailed,

first-class postage prepaid, to Warren A. Schneider, Assistant

Attorney in Charge, WCO Torts Branch, Civil Division, United

States Department of J ustice, 15036 Federal Building, P.O. Box

36028, 450 Golden Gate Avenue, San Francisco, California

94102-3463, counsel for Respondent; and to the Solicitor Gen-

eral. Department of Justice, Washington, D.C. 20530. I further

certify that all parties required to be served have been served.

FRANCES E. KOMOROSKE

831 State Street |

Santa Barbara, California 93101

Altomeys for Petitioners

Cynthia Sue Reber and

Courtney Brianne Reber

la

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Cynthia Sue Reber; Courtney

Brianne Reber, by and through No. 89-55390

Cynthia Sue Reber, Guardian Ad

Litem, D.C.No.

Plaintiff-Appellants, acacia

v. ORDER AND

United States of America, AMENDED

OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of California

J. Lawrence Irving, District Judge, Presiding

Argued and Submitted

June 5, 1990—Pasadena, California

Filed August 13, 1991

Amended December 13, 1991

Before: Procter Hug, Jr., Robert R. Beezer and

John T. Noonan, Jr., Circuit J udges.

Opinion by Judge Hug; Dissent by Judge Noonan

SUMMARY

Torts/Negligence

The court of appeals affirmed a district court judgment,

holding that res ipsa loquitur doctrine had no application

2a

where credible evidence established that injury might not have

been the result of an act of the defendant.

Boyd Reber died as a result of a mishap while he was

fishing on a boat near an area where the U.S. Navy had long

routinely conducted artillery and bombardment exercises. No

witnesses observed what happened. Appellants, Reber’s sur-

viving wife and child, brought a wrongful death against appel-

lee, the United States, contending that Reber’s death must

have been the result of either an overhead military shell or an

unexploded shell on the ocean floor that exploded when Reber

dragged his fishing net against it. A bench trial was held, and

both sides presented expert witnesses. The court found for the

government, relying on evidence refuting the theory of an

underwater explosion, including evidence regarding the type of

damage sustained by the boat, the type of injuries sustained by

the two person on the boat, and the location of loose objects

that fell into the water. Reber’s survivors a p pealed, contending

that the district court did not give appropriate consideration to

the doctrine of res ipsa loquitur and that an ordinance explo-

sion was the only reasonable explanation for the destruction of

Reber’s fishing boat.

[1] The district judge did not specifically mention res ipsa

loquitur, but he considered circumstantial evidence the Rebers

offered and the inference that an underwater explosion caused

the accident. [2] Tracing through the elements of res ipsa

loquitur would not have placed the case in a different posture.

[3] The court’s conclusion is a plausible view of the evidence

and therefore is not clearly erroneous.

[4] To prevail, the Rebers had the burden of proving the

military was negligent and that this negligence caused Reber’s

death. Based on the record, it cannot be said that the district

court’s finding is clearly erroneous.

Judge Noonan dissented from the majority’s conclusion

that the finding as to causation is not clearly erroneous. He

3a

reviewed the evidence and concluded that the majority’s ac-

count was not plausible. He also asserted that the district court

failed in its duty to weigh all the evidence.

COUNSEL

Michael W. McCann, Cappello & Foley, Santa Barbara, Cali-

fornia, for the plaintiffs-appellants.

Warren A. Schneider, Assistant Attorney in Charge, United

States Department of J ustice, San Francisco, California, for

the defendant-appellee.

ORDER

The dissent is amended at slip opinion page 11098 by

inserting after the final paragraph the following:

As it has been impossible for Cynthia Sue Reber and

her child through a judicial proceeding to obtain

compensation for the negligence of the Navy, I have

no doubt that Congress will take on the responsibility

and make good for the wrong committed by agents of

the federal government.

OPINION

HUG, Circuit Judge:

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

4a

Reber. The United States answered the Rebers’ allegations,

denying any responsibility for Reber’s death. After a bench

trial, the district court entered J udgment 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, de-

parted 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 Naval Reservation where

missile testing, artillery practice, and shore bombardment ex-

ercises have been conducted for more than 40 years. The areas

in which these activities are conducted are subject to various

restrictions and mariners are generally notified when and

where the military activities will occur.

Reber had an arrangement with his wife, Cindy, where he

would call her by radio at least every 72 hours while he was at

sea. ‘On February 23 at 7:00 p.m., Reber called Cindy to report

that all was going well. He also informed Cindy that he would

be fishing alone on the west side of the island and may not be

able to call again within the 72 hours. This was the last contact

Cindy had with Reber.

Reber’s body, along with some wreckage, was found off

Mail Point, on the western side of San Clemente, by Paul

Donohoe, another fisherman, shortly after 8:00 a.m. on March

2, 1986. Reber was not wearing a life preserver, survival suit, or

a slicker when found. The following day, Frank Germano’s

body was sighted on shore south of Mail Point. Germano did

not have either a life preserver or a slicker on. There was also

eine

Sa

a significant amount of vessel wreckage and fishing gear in the

area.

Both Reber and Germano were taken to the San Diego

Coroner’s office. Dr. John Eisele, a pathologist, performed

autopsies on both decedents. Although Reber’s autopsy re-

vealed a fractured nose, broken bones above his eyes, and

severe lacerations in his forehead, the cause of death was listed

as saltwater drowning, which Eisele estimated had occurred

less than a week prior to March 2. Likewise, Germano’s

autopsy revealed severe lacerations across his forehead, a

three-inch laceration in his chin, multiple rib fractures, and

internal damage on the left side of his torso, indicating a blunt

impact to the left side of his body. There were also lacerations

on his left lung and liver, which were listed as the cause of death.

Between February 24 and 27, 1986, the Navy conducted

three bombardment exercises at San Clemente Island. At trial,

the Rebers presented extensive evidence relating to the Navy’s

operations in the water off San Clemente Island during the

period of time surrounding the discovery of Boyd Reber’s body.

The Rebers contend that either a bomb or similar type of

explosive on the ocean floor was detonated during the net

retrieval operation of the Cindy Fay or that a five-inch shell

from a destroyer engaged in shore bombardment exercises

overshot the target area and landed in the water and exploded

directly under or in very close proximity to the Cindy Fay.

Both parties introduced a great deal of expert testimony

at trial to support their respective theories of what caused the

destruction of the Cindy Fay and the resulting deaths. The

Rebers’ experts attempted to develop the case that there had

been an underwater explosion. Their experts included Joseph

Hrzin, an engineer with some experience in calculating the

force of explosions, and Mr. Craig Ploss, who has a Bachelor

of Arts degree in political science and experience and training

in underwater explosives. The Government’s expert was Dr.

Robert D. Short, who has a Bachelor’s degree in Civil Engi-

6a

neering and a Doctor of Engineering from the University of

California at Berkeley in Naval Architecture and Engineering

Mechanics.

Through Dr. Short’s testimony, the Government pre-

sented extensive and detailed evidence refuting the Rebers’

theory of an underwater explosion. This testimony included

evidence regarding the type of damage sustained by the Cindy

Fay, the type of injuries sustained by the decedents, and the

location of loose objects from the vessel. The district court,

after reviewing Dr. Short’s experience record, concluded that

he was “quite an impressive expert with respect to underwater

explosions.”

After evaluating all the evidence presented through ex-

pert testimony, the district court found that the Rebers’ experts

failed to prove by a preponderance of the evidence that an

underwater explosion caused the loss of the Cindy Fay.

DISCUSSION

I.

We review findings of causation, or lack thereof, for clear

error. Churchill v. The F/V Fjord, 892 F.2d 763, 0 (9th Cir.

1988), cert. denied, 110 S.Ct. 3273 (1990).

Here, conflicting testimony existed from the Rebers’ and

the Government’s experts as to the cause of the Cindy Fay’s

destruction. The Rebers’ expert claimed that an underwater

explosion caused the loss. In contrast, the Government expert

noted that the widespread distribution of the wreckage mili-

tated against an underwater explosion, as did the equal bending

of the propeller blades and the damage done to vertical posts.

Therefore, the Government expert opined that an underwater

explosion was not the cause of the destruction of the Cindy Fay.

Ta

The district court listened to numerous witnesses and took

into account the investigative report, which noted the lack of

powder burns of any sort on the wreckage. The court based its

conclusion on the total sum of evidence and testimony and

found that the Rebers failed to show by a preponderance of the

evidence that an underwater explosion was the cause of the

loss.

At trial, the Rebers relied on the doctrine of res ipsa

loquitur and they contend on appeal that the district court did

not give appropriate consideration to that doctrine. Res ipsa

loquitur acts as a form of circumstantial evidence that permits

an inference of negligence to be drawn from a set of proven

facts. Ashland v, Ling-Temco-Vought, Inc., 711 F.2d 1431, 1437

(9th Cir. 1983)." It is important to note that res ipsa loquitur

does not create a presumption that a defendant’s negligence

caused the injury, rather it is only an inference that the fact

finder may accept or reject in considering the whole of the

evidence. Id. at 1441. Usually, the importance of the doctrine

is that when the elements necessary to invoke the doctrine have

been proved, that is enough to avoid a directed verdict or a

summary judgment—it becomes a question of fact for the fact

finder.

(1) Here, the district judge in this bench trial did not

specifically mention the doctrine of res ipsa loquitur, but he did

consider the circumstantial evidence presented by the Rebers

and the inference that an underwater explosion caused the

accident. He simply did not find it persuasive enough to carry

the plaintiff’s burden of proof.

Iris generally stated that to invoke the doctrine of res ipsa loquitur the

following three elements must be established: (1) an injury-producing

event of a kind that ordinarily does not occur in the absence of someone’s

negligence; (2) the event must be caused by an agency or the instrumentality

within the exclusive control of the defendant; and (3) the event must not

have been due to any voluntary action or contribution on the part of the

plaintiff.

8a

[2] The district judge weighed the circumstantial evidence

and the inferences to be drawn therefrom in light of the testi-

mony of the experts. Tracing through the elements of res ipsa

loquitur would have placed the case in no different posture. The

district judge would still be left to weigh the circumstantial

evidence along with the testimony of the experts and other

evidence produced at the trial.

[3] The court’s conclusion is a plausible view of the evi-

dence; we cannot find that the district court was clearly erro-

neous. See Anderson v. City of Bessemer City, 470 US. 564,

573-74 (1985) (“If the district court’s account of the evidence

is plausible in light of the record viewed in its entirety, the court

of appeals may not reverse it even though convinced that had

it been sitting as the trier of fact, it would have weighed the

evidence differently.”).

II.

The Rebers contend that the district court must be re-

versed because a military ordnance explosion is the only rea-

sonable explanation for the destruction of the Cindy Fay, even

if they are unable to prove by a preponderance of the evidence

that such an explosion occurred. The Rebers have the burden

of proving that the military’s negligence was the cause of Re-

ber’s death. See Northern Fishing & Thading Co. v. Grabowski,

477 F.2d 1267, 1271 (9th Cir.) (claimant must establish that the

defendant was negligent and that the negligence was the proxi-

mate cause of the loss), cert. denied, 414 U.S. 1079 (1973). The

burden is not on the Government to prove what caused the

death. Nor is the burden on the Government to prove a nega-

tive, i.e., that they did not cause the death.

[4] The Rebers, to prevail, had to establish that the mili-

tary was negligent (in overshooting a shell or in leaving an

unexploded ordnance on the sea bottom), and that this military

negligence caused the death of Reber. The district judge, who

heard the witnesses and viewed the evidence, found the Rebers

:

9a

did not meet that burden. At the appellate stage, based on a

cold record, we cannot say that finding was clearly erroneous.

III.

The Rebers also contend that the district court’s oral

opinion did not constitute sufficient compliance with

Fed.R.Civ.P. 52(a). Rule 52(a), however, states that: “It will be

sufficient if the findings of fact and conclusions of law are stated

orally and recorded in open court... ." See also Vance v Amen-

can Hawaii Cruises, Inc., 789 F2d 790, 792 (9th Cir. 1986)

(findings satisfy the function of Rule 52 if they provide an ample

basis for appellate review).

Here, the basis for the district court’s factual findings was

sufficiently stated in the oral opinion. In short, the court indi-

cated that it placed its reliance on the Government’s expert

testimony that an underwater explosion or an overhead shell

did not cause the loss. Therefore, we find that the district court

complied with Rule 52(a).

AFFIRMED.

NOONAN, Circuit Judge, 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, 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

10a

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, al-

though we would have weighed the evidence differently, if the

error is not clear. Anderson v. City of Bessemer City, 470 U.S.

564, 573 (1985). If there are “two permissible views of the

evidence,” the factfinder’s choice cannot be clearly erroneous.

Id. If the district court’s view is “plausible in light of the record

viewed in its entirety,” and not contradicted by extrinsic evi-

dence, we may not reverse. /d.

Measured by this generous standard, the district court’s

finding as to causation is clearly erroneous. Its view of the

evidence is not uncontradicted by extrinsic evidence. In the

light of the record in its entirety its account is not plausible.

The Last Thip of the Cindy Fay. Boyd Reber, 38 years old,

had been a commercial fisherman for twenty years. He had a

reputation for competence and for care as to safety. On Feb-

ruary 21, 1986 he sailed from San Pedro, California in the Cindy

Fay.

The Cindy Fay was his boat, custom built in 1979 by Knight

and Carver for him. Her hull was of molded fiberglass of good

design and heavy construction. Her equipment included a six-

man inflatable life raft, three adult life preservers, three sur-

vival suits, a flare kit and an Emergency Position Indicating

Radio Beacon (EPIRB). The safety equipment was in operat-

ing condition. The Cindy Fay was designed for gillnetting, a

form of fishing in which nets are lowered and hauled in with

their catch the next day. Her net was “one-thousand fathom”

with a mesh of 92’ by 20". Five months before the disaster the

boat underwent a survey by American Marine Surveyors Inc.

The boat was pronounced to be well-maintained and well-

suited for her intended use.

Reber, with 21 year old Germano as his assistant, was

bound for San Clemente Island. Its waters were attractive to

lla

fishermen. He had fished there since he had begun to fish. At

the same time there was danger there. For forty years the Navy

had conducted training exercises in bombardment, shelling

portions of the island. The public was warned not to enter areas

where the Navy was conducting bombardments. The whole

island and its waters were not, however, off bounds to civilians.

Unexploded bombs existed in the waters that had not been

recovered or identified by warnings.

Boyd Reber had an agreement with his wife to call her

every two or three days to assure her of his safety. On Sunday

evening, February 23, 1985 he called her to Say that all was

going well and that he and Frank were even then cleaning fish

they had hauled in. He was never heard from again.

The Wreck of the Cindy Fay. On March 2, 1986, 1,300 yards

south of Mail Point on San Clemente Island, in a cove lined by

cliffs, about 500 yards offshore entangled in kelp, Reber’s

lifeless body was found. He was dressed in a sweatshirt and

Levis and wore no life preserver. The time of his death was

estimated by the coroner to be between February 23 and

February 26 and was fixed by the Coast Guard as “most prob-

ably” 11:30 a.m., February 25, 1986. The lack of any communi-

cation with his wife since February 23 converged with this

estimate. The cause of death was found by the coroner to be

drowning. Reber also had a broken nose and injuries from

blunt impacts on his head and torso.

Reber’s crewman, Germano, also died in the disaster. His

body, clothed in jeans and T-shirt, was found among wreckage

on the shore. The cause of his death was lacerations of the lung

and liver due to blunt impacts upon the torso and head.

Portions of the Cindy Fay were found on shore, portions

at sea. On the shore of the cove was the main diese] engine with

its tailshift and propeller still attached; the anchor and anchor

chain; parts of the hull; the EPIRB: the gillnet spool with part

of the net still filled with fish, and various other items. In deep

12a

water, 300 to 400 yards off the coast, on the ocean floor under

35 feet of water, over two weeks after the disaster, divers found

a variety of heavy metal objects that had been on the stern of

the boat—the stern roller; the stern transom; the radar reflec-

tor mounted on the stern; the two Support pins of a roller; and

the pocket for a net part. Also found at sea was half of the Cindy

Fay’s net, also containing fish and attached to the net anchor.

One item from the forward part of the boat, the stabilizer, was

also recovered in this area.

In the light of this evidence it was not disputed by the

parties that the wreck of the Cindy Fay must have occurred in

deep water, not on the rocks. No other explanation would

account for the objects found in water far from shore. It was

equally undisputed that once damaged the Cindy Fay would

have been washed up On the rocks and pounded by surf. What

was at issue was what caused the wreck.

The Plaintiffs’ Case. The plaintiffs contended that the

Cindy Fay must have been wrecked cither by a wave or by i

human activity; that they could exclude a wave: and that it was

more likely than not that the human activity was negligent naval

activity resulting in an underwater explosion.

It was not contested that in 35 feet of water where the

wreck had occurred a wave that could have broken on the Ci

Fay would have had to have been at least 27 feet high. There

was undisputed evidence that weather conditions in the rele-

vant days of February would not have allowed a wave 27 feet

high to form. The Navy’s weather logs indicated ripple waves,

swells of 5 to 6 feet, winds of 10 to 16 knots. The Coast Guard

reported the sea calm. Timothy Barnett, an oceanographer and

expert on waves, testified that it would have been physically

impossible for a 27 foot wave to form in such seas with such

winds.

The exclusion of a wave as cause of the disaster was

buttressed by the testimony of John Knight, the builder of the

sone |

nian ene ne

l3a

Cindy Fay. He testified that the boat could not have been

demolished even by a 27 foot wave: that the boat was built to

sustain pressures greater than those encountered in Southern

California waters; and that he had never heard of a boat

suffering from wave action alone the structural damage sus-

tained by the Cindy Fay.

Final confirmation of this part of the plaintiffs’ case was

the casual dress of Reber and Germano. They were not dressed

for stormy weather. They had seen no need to take safety

precautions.

With surf excluded because the disaster had occurred in

deep water and with a large wave shown to have been at least

unlikely, the plaintiffs developed the case that there had been

an underwater explosion. There was uncontested evidence that

the Navy had been conducting bombardments with targets on

the island for forty years. That such bombardments would

occasionally leave unexploded shells was a matter of common

knowledge. That a fishing net catching an unexploded piece of

ordnance could set off an explosion with dire consequences to

the boat and skipper had been established in the Atlantic

Ocean by the fate of the scalloper Snoopy, whose net caught a

torpedo that exploded killing eight persons on the vessel. Peti-

tion of Trowler Snoopy, Inc., 268 F. Supp 951 (D. Me. 1967).

That the explosion had not been in the air was shown by

the absence of burns on the recovered wreckage and the

absence of shrapnel that an explosion in the air would have

generated. The plaintiffs’ expert, Joseph Hrzina, was an engi-

neer with extensive experience in calculating the force of ex-

plosions. His testimony was that only an underwater explosion

would have produced the effects observed. In support of this

testimony his detailed analysis was admitted as an exhibit in

evidence. This analysis showed the forces at work if a 500

pound bomb had been detonated in 35 feet of water at a net

angle of 45 degrees about 42 feet astern of the Cindy Fay.

l4a

The net angle was chosen as the angle at which a gillnet

comes in when it is retrieved. The bomb size was that of a

“small-bomb,” similar to one that some evidence indicated had

been retrieved by a fisherman’s net off San Clemente Island.

The location of the bomb aft of the stern was based on the fact

that far greater damage was done the stern than the forward

part of the boat. The analysis took the position that “the stern

was literally blown off.”

Hrzina’s analysis of the physical pressures at work re-

ceived corroboration from the testimony of two experienced

gillnet fisherman, Tim Houshar and David Tibbetts. Houshar

testified that when a wave broke over the stern of his boat, the

gillnet would “just stretch” and not break. He added, “[T]hey

hang in there, they’re built to do it.” Tibbetts testified that “on

many Occasions” a wave had broken over the stern of his boat

and the net had just stretched “a little bit”. Neither fisherman

had ever heard of a wave severing the net. In contrast, the net

of the Cindy Fay had been severed and one part was on the

shore, the other in the deep water.

Hrzina’s testimony and analysis strongly supported the

view that an unexploded bomb Caught in the net was the source

of the injury. Nonetheless, a good part of the plaintiffs case was

devoted to an alternative effort to show that live bombardment

exercises on February 25, 1986 had led to overshooting the

target and the consequent fall of a bomb in the water near the

Cindy Fay. The plaintiffs expert, Craig Ploss, supported this

approach. The government effectively rebutted the evidence

of overshooting; Hrzina’s analysis undermined Ploss; and the

district court found this theory only remotely possible. It had a

dramatic appeal but was not proved and is not worth stating in

detail here. The Rebers’ case turned on whether Hrzina’ s

testimony and analysis were credible.

The Defendant’s Case. The United States relied ona single

witness, Robert D. Short. Short had worked for 26 years for the

15a

United States Navy. He was an engineer with special expertise

in underwater explosions and in the protection of ships from

the effects of such explosions. The district court found him to

be an impressive witness.

Short testified at length to the consequences of an under-

water explosion from a bomb of the character likely to have

been in the area upon a boat like the Cindy Fay. He explained

the extraordinarily short life above surface of the force of such

an explosion and the vertical movement of the boat that the

explosion would produce. He agreed that it was possible that

a bomb had caused the wreck of the Cindy Fay as described by

the plaintiffs’ expert, Hrzina. But he listed four “discrepancies”

between the evidence and this possibility.

The first was the lack of injuries to the lower portions of

the bodies of Reber and Germano. Having heard the coroner’s

testimony that he did not look for injuries there, Short withdrew

his reliance on this point.

The second was the degree of bending in the net pins. In

Short’s opinion an underwater explosion of the kind described

would have not have had the force to produce such bends but

a 27 foot wave would have. On crOss-examination, however, he

admitted that his opinion was based on three assumptions,

none of which were verified: (1) that the roller cage was on the

pins; (2) that laboratory tests had correctly assessed the strain

necessary to produce the observed bends; (3) that a 27 foot

wave had struck the Cindy Fay. In fact, no one knew if the roller

cage was on the pins, the testimony being that the cage was

sometimes removed; (2) there was uncertainty as to how the

laboratory tests had been performed and what they had ascer-

tained; and (3) the Possibility of a 27 foot wave was excluded

by the evidence.

The third “discrepancy” was the bending in the propeller

blades. Again Short doubted that the described explosion could

have produced the bends. At the same time Short had no

16a

explanation of how the propeller damage could have occurred:

“I cannot relate the damage to the propeller to any of the

phenomena”. The propeller damage had happened some time,

somehow. That it did not occur because of an underwater

explosion had no probative force to show that such an explo-

sion did not take place.

Finally, Short pointed to the distribution of the parts of the

boat found in deep water. The maximum distance between the

objects recovered was 530 feet. In Short’s opinion an underwa-

ter explosion would not have distributed the objects so widely.

The vertical impact would have tossed objects in the air and

they would have either fallen on the boat or near the boat; there

would not have been a wide scattering. On cross—e€xamination,

however, Short conceded that objects that fell back on the

damaged boat could have slid from its deck as it was borne by

waves after the explosion. There was no certainty that the

location in the ocean of the objects was fixed immediately after

the disaster. Kelp covered a portion of the bottom: Reber’s

body was caught in it. Other objects from the boat could have

been similarly caught and moved with the movement of the

kelp. In short, the pattern of dispersal was far from dispositive

as to the cause of dispersal.

The District Court’s Findings of Fact. Ruling orally from the

bench, the district court found that the Parties agreed that the

loss of the Cindy Fay was not caused by an explosion in the air

cither aboard the Cindy Fay or outside it. The court found the

possibility of a shell from the naval bombardment exercises to

be “extremely remote” and unproven. The court discussed the

likelihood of an unexploded bomb being in the water near the

Cindy Fay but made no finding. The court turned to considera-

tion of the three experts who testified on underwater explo-

sions. It found that the Rebers’ two experts “did not prove by a

preponderance of the evidence that an underwater explosion

caused the loss of the Cindy Fay,” while “Dr. Short convinced

the court that an underwater explosion did not cause the loss

ee |

17a

of the Cindy Fay for the several reasons he expressed.” The

district court listed these reasons as (1) the damage to the pins;

(2) the lack of injury to the decedents’ lower extremities; and

(3) the dispersal of the offshore objects.

The court found none of the experts helpful or convincing

on the impact of waves. As to whether waves could have

reached 27 feet, the court noted Barnett’s testimony that the

maximum possible wave was 13.7 feet, but the court did not

find this statement to be evidence of a fact. The court also

noted, without making a finding, Paul Donahue’s testimony

that the surf had been “enormous” the weeks of the accident.

The court declined to decide whether waves or surf had caused

the disaster. The court concluded that the plaintiffs had only

shown a possibility of causation by underwater explosion and,

“as we all know, a possibility is not proof by a preponderance

of the evidence.”

ANALYSIS

The Rebers offered uncontradicted evidence that the

weather was such during the week of the wreck that a 27 foot

wave would not have occurred, and they offered the uncontra-

dicted evidence of the builder of the Cindy Fay that even a wave

as high as 27 feet would not have caused the Cindy Fay to

capsize or split into pieces. The district court failed to take into

account this testimony. In so failing, the court failed in its duty

to weigh all the evidence and was in clear error.

Without making a finding based upon it, the district court

appeared to give credence to Donahue’s testimony on the

dangerousness of the surf. The district court could not rely on

this testimony without making a finding. Even if the district

court had made a finding, the court would have had to have

explained why the dangerousness of the surf was relevant when

uncontradicted evidence indicated that the Cindy Fay had been

wrecked in deep water. The court’s half-use of Donahue’s

testimony was in clear error.

18a

The court’s reliance on Short to find that an underwater

explosion did not cause the wreck was equally erroneous. The

court relied on evidence as to the bodies of Reber and Ger-

mano which Short expressly rejected as a basis for his opinion.

The court relied on the dispersal of the objects without acknow-

ledging that Short himself had only testified that the initial

explosion would not have caused such dispersal while admitting

that later events could have caused the spread. The court relied

on Short’s testimony on the net pins without acknowledging

that the opinion was based on unverified assumptions. In ac-

cepting Short’s testimony as excluding an underwater explo-

sion, the court went far beyond Short’s own stated opinion

which left the possibility of such an explosion open. The court’s

reliance on Short’s reasons and the court’s mischaracterization

of Short’s actual opinion were clear error.

The court’s oral findings express the conclusion that the

plaintiffs’ experts did not establish that the cause was an under-

water explosion. This conclusion is a conclusion of law. It

cannot be sustained without findings of fact to support it. There

are no such findings. The court engaged in a desultory review

of the qualifications of the plaintiffs’ two experts on the explo-

sions. While it is possible to see why the court did not have

confidence in Ploss, the basis for its scepticism towards Hrzina

is unexplained. Hrzina, an authority on aerodynamics, had

offered an elaborate analysis of the forces in play after an

explosion. Weighing of all the evidence required the court to

consider this testimony. The court’s perfunctory conclusion,

without support in findings of fact as to Hrzina’s expertise or

as to his analysis, was error. The district court also failed to

examine and evaluate the testimony of Houshar and of Tib-

betts on the elastic characteristic of gillnets and so overlooked

the significance of the severance of the gillnet of the Cindy Fay.

Again, the court’s failure to weigh all the evidence was clear

error. Finally, in clear error, the court failed to examine and

19a

evaluate the evidence that the dress of the two dead fishermen

showed no expectation of stormy weather.

The court took the position that it did not have to deter-

mine the cause of the wreck. Abstractly stated, the court’s

position is, of course, irrefutable. A plaintiff must prove his

case. Here, causation was part of the plaintiffs’ case, which they

had to prove. It was their job to show that an underwater

explosion by an unexploded bomb was more likely than not.

The plaintiffs did show by clear and convincing evidence

that the Cindy Fay was wrecked in deep water, not surf, and that

the weather was such that a large wave capable of breaking

over the boat and wrecking it was highly improbable. Anyone

who reviewed the evidence would have to conclude that it was

more likely than not that the Cindy Fay had not been destroyed

by a big wave.

What was left? On old maps of the world there used to be

a terra incognito sometimes marked, “There be monsters here.”

If we still believed in sea monsters, we could ascribe the wreck

of the Cindy Fay to these beasts. But we don’t and we can’t.

Similarly we cannot suppose that Martians or pirates de-

scended upon the boat, taking nothing but breaking it apart.

The possibility that the Cindy Fay was wrecked by an

unexploded Navy bomb is the only possibility that remains.

Once it is the only possibility that remains, it becomes more

likely than not that it is what happened. We know the wreck

occurred. We know that every other explanation does not hold

up. The possibility converts itself into a probability.

Mindful as we must be of the deference owed the trier of

fact, we are not here substituting one weighing of the evidence

for another weighing of the evidence. The trial court made no

findings of fact as to Knight, the builder’s, evidence, or as to

Hrzina’s analysis, or as to the testimony of the two fishermen,

20a

Houshar and Tibbetts, or as to the dress of the deceased. I must

conclude that it did not weigh this evidence.

The trial court relied on a part of Short’s reasoning that

Short had withdrawn and a part of Short’s reasoning that was

based on unproven assumptions, and the court overstated

Short’s conclusion, all in manifest error. The court failed to

consider the evidence showing that the boat was outside the

surf and the evidence showing that the wind and waves were

quiet. The failure to consider this “extrinsic evidence” made

erroneous the court’s refusal to recognize that only one expla-

nation of the wreck was likely.

We do not and cannot satisfy our minds beyond a reason-

able doubt as to what happened to the Cindy Fay. Such certainty

is not sought in a civil trial, which deals only with probabilities.

When a fact has been shown “to be more likely to be true than

not,” it has been proved for purposes of the trial. Anderson v

City of Bessemer City, 470 U'S. at 580. Agnosticism is inappro-

priate. The defendant cannot take refuge in the only other

possibility offered that evidence has shown to be highly improb-

able.

Death is always a mystery, even when it comes to the very

old or the very sick. When it strikes down a man in his prime,

it is especially mysterious. Why Boyd Reber, 38, a fisherman of

long experience, should have been struck so quickly and so

terribly will always remain a mystery. But the mystery of who

lives and who dies is not the mystery of the loss of the Cindy

Fay. Not beyond a shadow of a doubt but as considerably more

likely than not, the cause of her loss may be determinable. The

job must be done by the trial court. It is not the task of this court

to weigh the evidence. But we must reverse the trier of fact

when the evidence has not been weighed and when the evi-

dence as a whole leaves us with the definite and firm impression

that the conclusion of the trial court was in error. I dissent from

the opinion of this court.

2la

As it has been impossible for Cynthia Sue Reber and her

child through a judicial proceeding to obtain compensation for

the negligence of the Navy, J have no doubt that Congress will

take on the responsibility and make good for the wrong com-

mitted by agents of the federal government.

lb

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CYNTHIA SUE REBER; COURTNEY Filed

BRIANNE REBER, By and Through Oct. 28, 1991

Cynthia Sue Reber, Guardian Ad Litem — Sundin

Plaintiffs-Appellants, No. 89-55390

. D.C. No.

UNITED STATES OF AMERICA CV-86-1676

ORDER

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of California

Before: HUG, BEEZER, and NOONAN, Circuit J udges.

Judges Hug and Beezer have voted to deny the petition

for rehearing and to reject the suggestion for rehearing en banc

filed by appellants on August 29, 1991. J udge Noonan has voted

to grant the petition for rehearing and to accept the suggestion

for rehearing en banc.

The full court has been advised of the Suggestion for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 3S.

The petition for rehearing is denied and the suggestion for

rehearing en banc is rejected.

— 9

PROOF OF SERVICE BY MAIL

State of Caifornia )

)

)

County of Santa Barbara

I, the undersigned, say: I am and was at all times herein

mentioned, a citizen of the United States and a resident of the

County of Santa Barbara, I am over the age of eighteen (18)

years, I am not a party to the within action or proceeding; I am

a member of the Bar of this Court; my business address is 831

State Street, Santa Barbara, California 93101. On January 27,

1992, I served the within Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit, in said

action or proceeding, by depositing true copies thereof, en-

closed in a sealed envelope with first-class postage thereon fully

prepaid, in the United States mail at Santa Barbara, California,

addressed as follows:

Clerk, United States Supreme Court

One First Street, N.W.

Washington, D.C. 20543

(Onginal and forty copies)

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 514-2000

(Three copies)

Warren A. Schneider

Assistant Attorney in Charge

WCO Torts Branch, Civil Division

United States Department of Justice

15036 Federal Building

Post Office Box 36028

450 Golden Gate Avenue

San Francisco, California 94102-3463

(415) 556-3141

(Three copies)

I declare under penalty of perjury that the foregoing is true

and correct. Executed on January 27, 1992, at Santa Barbara,

California.

Frances E. Komoroske

(Original Signed)