Fernando Jacobo v. United States of America, and Triad Marine & Industrial Cleaning Corporation Industrial Indemnity, Plaintiff-Intervenor-Appellant

853 F.2d 640, 1988 WL 78677

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 1, 1988
• Docket: 87-6395, 87-6414
• Status: Published

Opinions

PER CURIAM:

The district court granted summary judgment for the defendants in this admiralty case. We review de novo. Solano v. Beilby, 761 F.2d 1369, 1372 (9th Cir.1985).

Facts

Employed as a tank cleaner for Triad Marine & Industrial Cleaning Corporation (Triad), Fernando Jacobo was injured when he entered a storage tank aboard the U.S.S. Norton Sound in order to adjust the placement of a pump. Approximately five minutes after entering the tank, Jacobo collapsed. He was rescued and removed from the tank by Navy personnel. Subsequent testing of the tank revealed a toxic level of hydrogen sulfide.

Jacobo claims the United States was negligent in not providing him with a safe place to work. Plaintiffs-in-intervention are seeking indemnity for monies paid to Jacobo.

Because this claim sounds in admiralty, id. at 1371, federal, rather than California, law applies. Id. at 1373; see also Nelson v. United States, 639 F.2d 469 (9th Cir.1980).

Issues

1. Jacobo claims that the Navy was negligent per se because it violated the Naval Ships Technical Manual Chapter 74, Volume 3, Sec. 18.7, which places a duty on the commanding officer of a vessel to assure that others (including contractors) conduct their operations according to applicable standards and laws. But the manual is not a regulation and does not have the force of law. Schweiker v. Hansen, 450 U.S. 785, 789, 101 S.Ct. 1468, 1471, 67 L.Ed.2d 685 (1981); Thompson v. United States, 592 F.2d 1104, 1110 (9th Cir.1979). Thus, the alleged failure of the commanding officer of the USS Norton Sound to comply with the naval manual would not provide a basis for negligence per se.

Nor does the contract’s reference to the manual form a basis for holding the Navy liable. The contract requirement that “[a]ll work to be accomplished hereunder shall be in accordance with the following specifications and/or references as applicable,” Supplemental Excerpt of Record at 26, only imposes a standard to which the contractor must adhere. It does not incorporate the manual wholesale into the contract, and does not contractually obligate the Navy to comply with the manual.

2. Jacobo also alleges that the United States was negligent, relying on Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). Under Scindia, the United States had a duty to warn Jacobo of any dangers of which it knew or should have known. Id. at 167, 101 S.Ct. at 1622. Plaintiffs have presented no affidavits or other evidence tending to show that the Navy knew or should have known of the hydrogen sulfide. Moreover, the Navy labeled the tank contaminated, placing Triad on notice that there might have been dangerous conditions in the tank; the contract assigned Triad the responsibility to test for such fumes.

Nothing in the record indicates that the Navy’s knowledge of the potential danger was greater than that of Triad or Jacobo. Further, the evidence is uncontested that Jacobo’s entry into the tank was unplanned and spontaneous; it was made contrary to the orders of Jacobo’s supervisor, Morales. The Navy had neither a reasonable opportunity to warn Jacobo of any hazards, nor a duty to do so.

AFFIRMED.