SOCIETA PER AZIONI DE NAVIGAZIONE ITALIA v. CITY OF LOS ANGELES (1980)

Societa per Azioni de Navigazione Italia, respondent and cross-appellant herein (“Societa”) was at all relevant times the owner and operator of the merchant vessel, M.V. DA VERRAZANO. On July 30, 1974, Captain Harold Peterson, a port pilot employed by appellant and cross-respondent The City of Los Angeles (“City”) boarded that vessel at the request of Societa's local agent in order to pilot it from the Angels Gate entrance of Los Angeles harbor to a designated berth within.

The conditions were good, i. e., the weather was bright and clear, there were no unusual tides, and no unusual vessel traffic.

When the DA VERRAZANO came abeam of the Los Angeles Pilot Station, it was met by one tugboat, RIVAL, which had been ordered by Italian Line's local agent. The tugboat was made fast to the ship's port bow, in accordance with the pilot's orders, and the ship then proceeded further northward in the main ship channel. In due course, it passed underneath the Vincent Thomas Bridge and into the turning basin in the inner harbor.

At or about the time the vessel passed under the Vincent Thomas Bridge, Captain Peterson ordered “some” left rudder, intending to turn the vessel to the left and into the west basin.

Sometime after commencing this maneuver, Captain Peterson realized the vessel was turning too slowly and he then ordered full left rudder and increased the engine order from slow ahead to half ahead, in the belief that these steps would permit the ship to make the turn.

Shortly after issuing these orders, Captain Peterson realized that the ship would not make the turn and he then ordered full astern, while instructing the tug to back with full power. He likewise ordered to let go the vessel's port anchor.

In spite of these attempts at correction, the bow of the ship came into contact with the dock at Berth 150, causing damage to it and to other equipment on or beneath it.

The dock was owned by City. The equipment on or beneath it was owned by Union Oil Company of California, which is not a party to this appeal.

In March of 1975, Societa filed its complaint for damages and for declaratory relief to determine the validity of certain portions of City's regulation known as Los Angeles Tariff No. 3¹ which provides:

“It is understood and agreed, and is the essence of the contract under which pilotage services are proffered and rendered, and are requested and accepted by the vessel, her owners, master, operators, charterers or agents, that the services of the pilot are requested and accepted on the express understanding that such pilotage services are given, done, or performed solely in the pilot's capacity as the servant of the vessel and of her owners, master, operators, charterers or agents, and not otherwise, and the owners, master, operators, charterers and agents of the vessel expressly covenant and agree * * * not to assert any personal liability against the pilot or the City of Los Angeles * * * arising out of or connected with, directly or indirectly, any damage, loss or expense sustained by the vessel, her master, owners, charterers, operators, agents or crew, or by any third parties, even though resulting from acts, omissions or negligence of the pilot; and provided, further, that to the extent only to which liability is legally imposed against the vessel * * * such vessel and her owners, master, operators, charterers and agents further covenant and agree to indemnify and hold harmless the municipal pilot, (and) the City of Los Angeles, * * * in respect to any liability arising out of claims, suits or actions against the municipal pilot, (or) the City of Los Angeles * * * by third parties, resulting from acts, omissions or negligence of the municipal pilot, excepting, however, such personal liability and rights over as may arise by reason of the wilful misconduct or gross negligence of the pilot.”

As a preliminary matter prior to trial, agreeably with Code of Civil Procedure section 437c,² Societa filed its motion for summary adjudication of certain issues in the case which resulted in the trial court's order that:

“1. Congress has delegated to the States the right to control and regulate pilotage within their borders;

“2. Under California law, pilots are liable for their own negligence, and the employers of pilots are liable for the negligence of their employees;

“3. The California Legislature has declared that all municipalities and their employees shall be liable to the same extent as private individuals and the liability of municipalities is a matter of statewide concern;

“4. A municipality is without authority to adopt a local ordinance contravening State law or in any way reducing rights given by the State Legislature;

“5. Port of Los Angeles Tariff No. 3, s 205(e), is inconsistent with the California Tort Claims Act;

“6. Said tariff is void under State law, which is controlling.

“The contents of this order shall be incorporated into any final judgment subsequently entered in this action. The action shall now proceed to trial in the usual manner for an adjudication as to the liabilities of the parties for the damage alleged and, if pertinent, for a determination of the extent of such damages. The City of Los Angeles, in these further proceedings, may not rely in any way upon the tariff above-mentioned.”

Following trial without a jury, the trial court further concluded, in part, that:

“2. (Societa) is liable for the negligence of its employees who were crew members of the M.V. DA VERRAZANO and the City of Los Angeles is liable for the negligence of its employee, Capt. Harold Peterson, all of which employees were acting within the course and scope of their employment at all times relevant hereto.

“3. (Societa) and the City of Los Angeles were both negligent and their negligence proximately contributed to this marine casualty.

“4. The City of Los Angeles is 75% to blame for this casualty and Italian Line is 25% to blame for this casualty.

“5. Union Oil Company of California's damages are $50,000 * * *.

“6. The City of Los Angeles is entitled to total damages in the amount of $32,616.55.

“7. The City of Los Angeles shall bear responsibility for 75% of the total damages and (Societa) shall bear the responsibility for 25% of the total damages.”

The judgment based on these conclusions, together with those summarily adjudicated, occasioned this appeal. We conclude the trial court erred in assessing liability against City and reverse the judgment accordingly.

Our determination in this respect is based upon the uncontradicted testimony in the record which establishes that Captain Peterson was the borrowed servant of the vessel, even though employed by City in its general service as a port pilot, and accordingly that, whether the matter is one governed by state or federal law, the doctrine of respondeat superior cannot be applied so as to hold City responsible for Captain Peterson's negligence.

Thus, even without reference to City's Tariff No. 3, but in view of the fact Captain Peterson's services were voluntarily retained³ at Societa's request, it seems clear to us the relationship established was one wherein he was employed in the particular work of Societa, subject to its control and not that of City.

So, when Captain Peterson was being examined by counsel for Societa, the following was elicited:

“Q Let me ask you about a few things that the master (ship's captain) does over which you have no control.

Now, for example, the master has a duty and custom and practice to see that a look-out is posted.

Does he not?

“A Yes.

“Q And that is something over which you, as a pilot, have no control?

“A That's right.

“Q You can't give orders to crew members?

“A No.

“Q Incidentally, can the captain give you orders?

“A I guess so. Sure.

“Q BY MR. MacLAUGHLIN: Let's assume that you give an order and the captain doesn't agree with it.

He has the right, if he wishes, to countermand your order.

Does he not?

“A Yes.

“Q In other words, he can tell his crew to disregard your order?

“A Yes.

“Q Okay.

Now, does he have the right to come back to you and say, ‘Capt. Peterson, I'm ordering you to go full left rudder right now, and I want you to give that order’?

“A (No response recorded.)

“Q In custom and practice, does the master of a ship have the right to order a pilot around in this manner?

“A Yes.”

Similarly, one Captain Joseph Brady, a port pilot formerly employed by City, testified:

“Q When you are on board a vessel, if in fact the captain comes up to you and countermands your order, do you do what he tells you.

“A Yes, I would, if he countermanded it and I didn't think it endangered the ship.

I'd like to point out here that it's a business. Piloting is a business, as you're well aware. And we try to get along with people. We're not out there to fight with them.

So if it's something that rational or it's his-

If it won't harm the ship or it's his choice, I certainly would go along with it, as long as it's not damaging the ship.

“Q And if he told you to do something that was dangerous, would you stop and talk about it?

“A Yeah. I would not do it and I'd stop the ship and we'd get an understanding then.

“Q But if the captain of that vessel does not like something you're doing, he has the right at any time to say, ‘Capt. Brady, I don't want you to do that. Let's stop and talk about it’?

“A Yes, sir.

“Q And you would expect him to do that if he was unhappy with what you were doing.

Is that correct?

“A Yes, sir. I would expect that, and I'm sure he would.

“Q And typically, when you are giving your orders on a vessel, are those relayed through the captain of the vessel?

“A Normally, the captain, or within about 25% of the cases the chief mate or deck officer. And then the captain stands by and supervises and listens.”

No evidence was introduced which would support a conclusion that Captain Peterson, while in the general employ of City, was subject to its immediate direction in the discharge of his particular duties. Under such circumstances it follows he was the borrowed servant of Societa.

That the concept of borrowed servant is one recognized under both state and federal law seems clear. (See Billig v. Southern Pacific Co. (1922) 189 Cal. 477, 209 P. 241; City of Los Angeles v. Standard Transp. Co. (9th Cir. 1929) 32 F.2d 988.)

Thus in City of Los Angeles v. Standard Transp. Co., supra, (9th Cir. 1929) 32 F.2d 988, it was set out that:

“In the present case it was the duty of the master to see that there was a sufficient watch on deck, that the men were attentive to their duties, and that signals were properly heard and given. If the master had discharged that duty, it would have been apparent to him that the course pursued by the Seekonk in crossing the course of the Lebec was a dangerous one under the circumstances and that a collision was imminent unless his vessel changed her course or came to a stop. But notwithstanding the knowledge the master had and the knowledge imputed to him, he did nothing whatever to forestall the disaster, and was clearly negligent in that regard.

“In view of this conclusion it is perhaps unnecessary to consider whether the city was liable in any event for the acts of the pilot, who was voluntarily employed by the master of the Seekonk; but it seems plain to us that it was not. The pilot was placed in charge of the Seekonk by the master and not by the law, and the rights and obligations of the parties must be determined by reference to the relation thus established. In the varied affairs of life it is not always easy to determine where responsibility rests for the act of a servant in the general service of one master but employed in the particular work of another. But the test almost invariably applied is: Whose was the work, and whose the power of control? Guy v. Donald, 203 U.S. 399, 27 S.Ct. 63, 51 L.Ed. 245; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480. While here, the pilot was in the general employ of the city, the work in which he was immediately engaged was the work of the ship or master, and the only control to which he was subject was the control of the master. The city was powerless to direct him in the discharge of his duties and was not present to discharge him from the particular service in case of negligence or incompetence. Under such circumstances we think the cases practically all agree that there was no liability on the part of the city, except perhaps for the employment of a pilot of known incompetence; and no such question is presented here.” (Id., at p. 990.)

And in Billig v. Southern Pacific Co., supra, 189 Cal. 477, 209 P. 241, our Supreme Court observed:

“Of course, one may be in the general service of one employer and, nevertheless, with respect to particular work may be transferred to the service of another, so as to become by agreement, or by force of circumstances, the servant of the latter with all the legal consequences of the new relation. It (sic) such a situation, however, it is obvious that it is necessary to ascertain who was the master at the very time of the negligent act complained of. This is so for the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the very time and in respect to the very thing out of which the injury arose.” (Id., at pp. 482-483, 209 P. 241.) (See also Deorosan v. Haslett Warehouse Co. (1958) 165 Cal.App.2d 599, 604, 332 P.2d 422; United States v. SS President Van Buren, supra; (9th Cir. 1973) 490 F.2d 504; 1 Witkin (8th ed. 1973) Agency and Employment, ss 158, 159.)

The judgment is reversed and the cause remanded for entry of judgment in favor of City and against Societa.

FOOTNOTES

1.  The entire tariff is itself a portion of Los Angeles Municipal Code Ordinance No. 138,969, adopted June 26, 1969.

2.  In pertinent part the statute provides:“If it appears that the proof supports the granting of such motion as to some but not all the issues involved in the action, or that one or more of the issues raised by a claim is admitted, or that one or more of the issues raised by a defense is conceded, the court shall, by order, specify that such issues are without substantial controversy. At the trial of the action the issue so specified shall be deemed established and the action shall proceed as to the issues remaining. * * *”

3.  From other parts of City's tariff not held invalid by the trial court it is clear that pilotage services, which are offered at a fee determined by the length of the ship, are not a prerequisite to the vessel's entering the port; it may do so without a City pilot, provided only that it pays three-fourths of that fee. The latter fact, however, does not make pilotage compulsory. (United States v. President Van Buren (9th Cir. 1973) 490 F.2d 504, 506-507; cf. City of Long Beach v. American President Lines, Ltd. (9th Cir. 1955) 223 F.2d 853, 856.)

ROTH, Presiding Justice.

COMPTON and BEACH, JJ., concur.