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October 13, 1998

XANADU MARITIME TRUST and PHIL GRAF, Petitioners in Limitation,

The opinion of the court was delivered by: SCHWARZER


 This is a Petition in Limitation brought by petitioners XANADU Maritime Trust and Phil Graf against claimant Herbert Meyer, plaintiff in the underlying personal injury action. The parties stipulated to have liability adjudicated in this action. The case went to trial before the court on September 28 and concluded on October 2, 1998. Following the presentation of evidence, closing arguments by counsel were heard by the court. These are the court's findings of fact and conclusions of law.


 The court has heretofore granted Barient's motion for judgment as a matter of law pursuant to Rule 52(c), made at the close of claimant's case. Meyer claims that the Barient 28 winch installed on XANADU was defectively designed. He contends that the design defect permitted the winch to be assembled with one or both of its ratchet gears inverted, and that in that condition, which could not be detected from the winch's external appearance, the pawls may not engage the ratchet properly, permitting the ratchet to slip and the winch to fail unexpectedly.

 There is no evidence that at the time of the accident on July 31, 1993, one or both of the gears in XANADU's primary portside winch was inverted. The only evidence in the case is that the winch functioned without problem all of that day while the vessel was underway and it was in use, and for all the time the vessel was owned by petitioner Graf. There is no evidence that the winch had ever failed or had ever been improperly assembled. When the winch was disassembled in 1995, the gears were found to have been properly installed.

 Because the court concludes that claimant has failed to prove the existence of a defect in the winch on the day of the accident or, for that matter, of a malfunction of the winch, Barient is entitled to judgment.

 The court would be remiss, however, were it not to note the misconduct of the witness Robert Keefe and the unprofessional conduct of claimant's counsel, Frank Hugg. Through the witness Keefe, a former Barient executive, Hugg sought to prove that when one of the ratchet gears in the winch is inverted during installation, the winch appears to be functioning normally but can fail at any time because the pawls will not seat properly in the pockets of the ratchets. Keefe testified that he had tested the winch and determined that when one of the gears is inverted, the winch appeared to be functioning normally but could at any time fail under load without warning. On cross-examination, he affirmed that in his tests, aside from intentionally inverting the ratchet gear for testing purposes, he had assembled the winch in the way he normally would if he were going to use it.

 Barient produced expert witness Brad Wong who demonstrated that when the winch is properly assembled but with one of the gears inverted, it would bind and could not be operated at all. Hugg then produced Keefe on rebuttal who assembled a winch to demonstrate that it would not bind and could be operated with an inverted gear. However, Keefe failed to tighten the bolts as they would be tightened in normal and proper assembly pursuant to the manufacturer's directions. This left a gap between the housing and the gears, enabling them to rotate. Keefe concealed this fact until confronted by opposing counsel.

 When later asked by the court to explain, counsel admitted that he had been nervous before trial about presenting this testimony at all and had no explanation for how he could have offered Keefe's testimony on rebuttal when he suspected *fn1" that it was false and would mislead the court about a material fact. The misrepresentation to the court of a crucial fact obviously known to Keefe with many years of experience with Barient winches is a violation of his oath to tell "the whole truth." And it is a grave breach of professional ethics on Hugg's part to present expert testimony knowing or suspecting it to be false and misleading in the absence of full disclosure of the manner in which the test was conducted. *fn2"


 Claimant Meyer claims to be a seaman entitled to recover under the Jones Act. Because the court concludes that petitioners were not negligent, even in the slightest degree, it is not necessary to belabor this point. Suffice it to say that prior to the accident claimant spent only a small fraction of his time sailing XANADU and performing related shoreside maintenance activity. Over the two-year period leading up to the accident, he had been out on XANADU not more than half a dozen times. He was one of a number of persons on whom Graf called to crew the vessel. Claimant had no standing arrangement or commitment to crew. Under Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 132 L. Ed. 2d 314, 115 S. Ct. 2172 (1995), to be a seaman, a person must have a connection to the vessel that is "substantial in terms of both its duration and nature," i.e., more than transitory and sporadic. The rationale is that the benefits of the Jones Act are extended only to persons who in their work are regularly exposed to the perils of the sea. See id. Meyer's connection to XANADU did not reach that level. That Graf may have promised to include him in a trans-Pacific voyage sometime in the future does not alter that fact. The Ninth Circuit's decision in Boy Scouts of America v. Graham, 86 F.3d 861 (9th Cir. 1996), does not help claimant. The issue here is not whether Meyer's duties contributed to the accomplishment of XANADU's mission-a fact that may be conceded. Rather the question is whether his connection to her was sufficient under the Chandris standard. With respect to that issue, Graham held only that whether the requisite connection to the vessel existed is one of fact. See id. at 866. Because claimant's connection to XANADU was not substantial in terms of its duration or nature, claimant is not a seaman. Accordingly, the court concludes that the relevant standard is reasonable care under the circumstances, as stated in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630-32, 3 L. Ed. 2d 550, 79 S. Ct. 406 (1959) (holding that a shipowner owes a social guest the duty of exercising reasonable care under the circumstances).


 On July 31, 1993, claimant was severely injured on board the fifty-foot yawl XANADU while engaged in easing the sheet to the genoa foresail that XANADU was then flying. The accident occurred at about 4:00 p.m. while XANADU was several hundred yards offshore approaching San Francisco's Pier 39. No one observed the entire accident other than claimant, and his ability to observe it fully was impaired by the traumatic event itself.

 According to claimant, he had removed the genoa sheet from the portside cleat with his left hand, holding it with his right hand preparatory to easing the sheet. He then grasped the sheet with both hands, standing in the cockpit with the right foot on the cockpit deck and the left foot or knee on the bench. He leaned back against a stanchion, holding the sheet tightly in both hands. The winch had four or five wraps of sheet on it. He then tried to ease the line by cracking it slightly, moving his arms forward to allow it to slip around the winch. The line appeared to be stuck. Next he heard a groan, his arms were yanked and he was pulled toward the winch, hitting his head against the corner of the doghouse. There was no load on the line before it slipped, the only ...

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