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Jensen and Lindholm v. Goresen, F/V Poseidon (10/7/94), 881 P 2d 1119
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
JAMES L. JENSEN and EVERETT )
J. LINDHOLM, ) Supreme Court No. S-5095/5115
Appellants and ) Superior Court No.
Cross-Appellees, ) 3AN-89-10082 CI
v. ) O P I N I O N
MARTIN GORESEN, owner of F/V ) [No. 4130 - October 7, 1994]
Appellee and )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Joan M. Katz, Judge.
Appearances: Patrick J. McKay, Law
Offices of Patrick J. McKay, Anchorage, for
Appellants/Cross-Appellees. James W. Hill,
Jr., Wade & De Young, Anchorage, for
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices.
This appeal arises out of a collision between the F/V
Rhema and the F/V Poseidon in Cedar Bay, Prince William Sound.
Goresen, the skipper of the F/V Poseidon, was injured shortly
after the collision. The F/V Rhema, skippered by Lindholm and
owned by Jensen, captured a school of sac-roe herring the F/V
Poseidon was attempting to enclose in its seine. After trial by
jury, Lindholm and Jensen were found liable for Goresen's
injuries and the value of the herring catch which the F/V
Jensen and Lindholm raise four issues in this appeal:
(1) whether the superior court should have allowed the
introduction into evidence of the criminal convictions of
Lindholm and a potential witness for conspiracy to violate the
Lacey Act; (2) whether the superior court correctly instructed
the jury as to the elements of conversion; (3) whether the
superior court erred in establishing a constructive trust for the
crew members out of the damages awarded to Goresen for the lost
herring catch; and (4) whether the superior court erred in
denying a motion for a new trial based on a conversation which
took place between Jensen and Goresen after the jury commenced
In his cross-appeal, Goresen argues that the jury's
determination that he was thirty-five percent comparatively
negligent is flawed because the superior court erred by failing
to instruct the jury (1) that the F/V Poseidon was a "vessel
engaged in fishing"and the F/V Rhema was not, and (2) that the
F/V Poseidon had the exclusive right to fish at the site in
I. FACTS AND PROCEEDINGS
On April 21, 1988, Goresen was skippering the F/V
Poseidon and had let out 880 feet of seine. Goresen was "holding
open" this seine for fifteen minutes waiting for word from his
spotter pilot, Anthony Dobert, to advise him when to close the
seine. There is a conflict in the testimony as to whether the
F/V Poseidon was moving at the time the collision with the F/V
Rhema occurred, as well as a dispute as to whether the seine was
still moving off the F/V Poseidon at the time of the collision.
While the F/V Poseidon was holding open its seine, the
F/V Rhema approached and lowered its skiff in the area of the F/V
Poseidon's skiff.1 The F/V Rhema then let its seine out inside
the incomplete circle of the F/V Poseidon's seine. While in the
process of laying out its seine the F/V Rhema struck the bow of
the F/V Poseidon, causing Goresen to sustain various personal
injuries. After the collision the F/V Poseidon hauled its seine
back on board without catching the school of herring that Goresen
was attempting to encircle. The F/V Rhema caught the school of
herring, which weighed 58.9 tons and had a value of $816 per ton.
Goresen then filed suit against Jensen and Lindholm
seeking punitive damages and damages for conversion of the
herring, personal injuries sustained as a result of the
collision, and damages to the F/V Poseidon. At trial the jury
awarded $17,392 on the conversion claim. As to the personal
injury claim, the jury concluded that Goresen had suffered
damages in the amount of $60,000 and that he was thirty-five
percent responsible for his injuries. Therefore Goresen's award
for personal injuries was reduced to $39,000.
Goresen subsequently submitted a proposed judgment
awarding him $17,392 for the lost herring, with a provision for a
constructive trust for the crew's portion. The superior court
entered an order providing for a constructive trust. Thereafter
the superior court denied Jensen and Lindholm's motion for a new
trial. This appeal followed.
A. The Superior Court Did Not Err When It Admitted
Lindholm's Conviction for Impeachment Purposes2
The superior court allowed Goresen to introduce
evidence that Lindholm had been convicted of conspiracy to
violate the Lacey Act Amendments of 1981, 16 U.S.C.
3372(a)(2)(A) and 3373(d)(1)(A), by knowingly transporting in
interstate commerce fish caught in violation of Alaska's fishing
laws.3 While acknowledging the risk of unfair prejudice which
introduction of the evidence might produce, the superior court
determined that risk was outweighed because the evidence of these
convictions was "highly probative of [Lindholm's] credibility."
The court offered to inform the jury only of the fact that
Lindholm had "been convicted of a crime involving dishonesty,"in
order to minimize the prejudice resulting from the similarity
between the convictions and the conduct which formed the basis of
Jensen's liability in the instant case.4 Jensen and Lindholm,
however, requested that the specifics of Lindholm's conviction be
admitted. The superior court deferred to Jensen and Lindholm and
instructed the jury that its use of this evidence was limited to
evaluating Lindholm's credibility as a witness.5
In making its determination to admit the evidence the
superior court stated:
The court [in City of Fairbanks v.
Johnson, 723 P.2d 79 (Alaska 1986)] . . .
held that a misdemeanor conviction for
concealment of merchandise was a crime of
dishonesty. . . .
The basic issue is really whether
this Lacey Act violation involved
. . . dishonesty. And my conclusion is that
it did, in fact, involve, dishonest [sic]
within the Alaska courts' interpretation of
Alaska Evidence Rule 609 permits the introduction of
prior convictions for purposes of impeaching a witness "if the
crime involved dishonesty or false statement." Jensen and
Lindholm argue that conspiracy to poach fish is not a crime
involving dishonesty. In City of Fairbanks v. Johnson, 723 P.2d
79 (Alaska 1986), we construed Rule 609 to encompass all crimes
that "disclose the kind of dishonesty which would bear upon a
person's tendency to testify truthfully." Id. at 82. For
example, we have held that concealment of merchandise,6 larceny
and embezzlement,7 and robbery,8 are crimes of dishonesty within
the meaning of Evidence Rule 609.
Given the range of theft crimes covered by Rule 609, we
hold that conspiracy to poach fish is a crime involving
dishonesty. We therefore conclude that the superior court did
not abuse its discretion in admitting Lindholm's Lacey Act
conviction for impeachment purposes.
B. The Superior Court Properly Instructed the Jury on
the Elements of Conversion9
Regarding Jensen and Lindholm's conversion of herring
the superior court gave the following instruction:
INSTRUCTION NO. 14
For plaintiff to win on his first
claim for the value of the fish allegedly
taken you must decide that it is more likely
than not true that the following things
1. that the plaintiff had a
possessory interest in the fish in his seine
2. that the defendant, Everett
Lindholm, interfered with the plaintiff's
right to possess the fish;
3. that the defendant intended to
interfere with plaintiff's possession; and
4. that the defendant's act was
the legal cause of the plaintiff's loss of
If you decide it is more likely
than not true that these four things
happened, you have decided the defendant
wrongfully took the fish to which plaintiff
was entitled. You must then decide the
amount the defendant(s) should pay the
plaintiff for his loss. Otherwise, you must
return a verdict for the defendants on this
Jensen and Lindholm's primary complaint regarding this
instruction is that the superior court failed to give the
following proposed instruction:
A person is deemed to have possessed the
fish in question when he has ceased fishing
and is in control of the fish. Under the
circumstances in this case, Plaintiff is
deemed to have ceased fishing when both ends
of the seine are attached to his fishing
Jensen and Lindholm argue that this court should
require the jury to find that Goresen had control of the fish
before concluding that a conversion occurred. Jensen and
Lindholm note that Lindholm's alleged interference with the F/V
Poseidon took place before the F/V Poseidon had completely closed
its seine. Jensen and Lindholm thus argue that, at that point,
the herring had not been caught and that it was premature to find
that the F/V Poseidon was "entitled"to the herring in question.
Goresen counters that a rule creating a possessory
interest only when each fish is inescapably in one's control runs
counter to custom, precedent and reason. Jensen and Lindholm do
not dispute Goresen's assertion, which is supported by the
record, that seine fishermen in Alaska have a custom of never
entering another vessel's circled seine. This, according to
Goresen, creates "an established limit to the competition,"
permitting orderly activity where there would otherwise be
bedlam. In regard to this Alaska custom the superior court
instructed the jury as follows:
In deciding whether Mr. Goresen had a
possessory interest in any fish taken by
defendants, you may consider, among other
things, any evidence presented to you
regarding customs among fishermen.
Given the text of Jury Instruction No. 14, together with the
instruction regarding the custom of seiners in Alaska, we hold
that the superior court did not err in rejecting Jensen and
Lindholm's proposed instruction.
In McKibben v. Mohawk Oil Co., 667 P.2d 1223 (Alaska
1983), we held that "[i]n order to maintain a cause of action for
conversion the plaintiff must establish that he had a certain
possessory interest in the chattel at the time of the wrongful
act." Id. at 1228. "Certain" in this sentence means
"particular"rather than "inevitable." The particular possessory
interest which the jury found to have existed here is one defined
by custom. The custom, in turn, arose out of the need for order
on the fishing grounds. The trial court did not err in refusing
to give the instruction submitted by Jensen and Lindholm.10
C. The Superior Court Did Not Err in Establishing a
Constructive Trust for the Crew of the F/V POSEIDON
Jury Instruction No. 14 permitted the jury to award
Goresen the full value of any herring it found Jensen had
converted. After the jury returned its verdict in favor of
Goresen, the superior court established a constructive trust for
the shares of the crew of the F/V Poseidon and its spotter pilot.
Jensen and Lindholm claim that the superior court erred in
establishing the constructive trust. In our view this issue
involves two questions: (1) whether the crew and spotter pilot
can recover their shares of the value of the converted herring,
and (2) whether they can do so without being parties in this
Courts have allowed fishing vessel crew members to
recover based on their contractual rights. See Miller Indus. v.
Caterpillar Tractor Co., 733 F.2d 813, 820 (11th Cir. 1984)
(holding that crew members could recover through the shipowner-
plaintiff, acting as trustee); Carbone v. Ursich, 209 F.2d 178
(9th Cir. 1953) (awarding crew shares for damages resulting from
a net negligently fouled by another ship); Reefer Queen Co. v.
Marine Construction & Design Co., 440 P.2d 448 (Wash. 1968)
(creating a constructive trust because the crew was "closely
allied with the vessel"and therefore entitled to share in
damages for lost catch due to defective winch). In State v.
Stanley, 506 P.2d 1284, 1293 n.21 (Alaska 1973), we endorsed the
possibility of crew recovery in dictum.
We are not persuaded by the authorities relied upon by
Jensen.11 Guarrasi is the only case cited by Jensen and Lindholm
that is on point. In that case, the court rejected Carbone's
rationale, holding that the crew could not recover for lost
shares or wages resulting from damage to the ship's cargo of
fish. Guarrasi, 271 F. Supp. at 679-80. The court based its
opinion on the tortfeasor's lack of knowledge of the crew's share
agreement, and its reluctance to make such tortfeasors
"villains." Id. at 680.
We find the cases cited by Goresen more persuasive. In
Miller the negligence of an engine manufacturer caused several
weeks of delays. Miller, 733 F.2d at 816. The Eleventh Circuit
allowed the crew to recover, holding that the crew had
established a relationship with the vessel and that, in light of
the finite period of incapacity, damages were not unduly
speculative. Id. at 818-20. In the case at bar the damages are
even less speculative, given that there is only a single catch
that was interfered with and that the jury was able to compute
the value of the catch. And, like Miller, the crew had already
spent time on the ship, and therefore the relationship was not a
purely prospective one at the time of the incident.
Additionally, unlike the court in Guarrasi, we do not
believe that permitting this constructive trust will create a
class of tortfeasor "villains." This is not a case of expanding
the tortfeasor's liability or affording tort victims a double
recovery. For example, Jensen and Lindholm wrongly
assume that the alternative to a constructive trust would be a
reduced award. Goresen had a possessory interest in the fish,
and the superior court established the constructive trust only to
prevent his unjust enrichment. Goresen has contractual
obligations to his crew and spotter pilot that require him to pay
them based upon the catch. Assuming arguendo that the
constructive trust was invalid, Goresen would still be entitled
to the full award. The crew and spotter pilot could then sue
Goresen to recover their share of the catch. Establishing the
constructive trust, therefore, has no effect upon Jensen and
Jensen and Lindholm's final argument concerning this
issue is that it was error to allow the crew and spotter to
recover without subjecting them to the jurisdiction of the
superior court. We hold that the superior court's use of a
constructive trust for the benefit of the crew and spotter pilot
was proper. Both Miller and Reefer Queen endorsed the use of
constructive trusts in favor of non-party crew members. See also
Howard v. Dalio, 815 P.2d 1150, 1152-53 (Mont. 1991) (upholding
lower court's establishment of a constructive trust in favor of
one not party to the action where that person's interests were
adequately protected). Again, we note that Jensen and Lindholm
are not prejudiced by creation of the constructive trust, since
the extent of their liability remains the same.
D. The Superior Court Did Not Err in Denying Jensen's
Motion for a New Trial
After the jury commenced its deliberations, an exchange
took place between Goresen and Jensen. What was said is in
dispute. According to Jensen, Goresen said:
I apologize to you for using your
boat for spite to get back at Joe for
something that happened in Togiak years ago.
You shouldn't even have been involved in
this. Actually, the incident involved Joe's
brother. I'm sorry this is going to cost a
lot of money and you are going to lose this.
Goresen disputes Jensen's version, claiming that he merely said,
"I am sorry that you were involved in this law suit because Joe
Lindholm used your boat out of spite to get even with me for
something that happened in Togiak." Jensen and Lindholm
thereafter moved for a new trial, citing this conversation as
"newly discovered evidence." The superior court denied the
Beyond observing that Goresen denied knowing Lindholm
in a deposition, and the general claim that "the motivation of
the parties was a major issue before the jury," Jensen and
Lindholm's argument in support of his new trial point is devoid
of citations to the record or explanation of the implications of
the conversation. We think Goresen's version appears more likely
for a number of reasons, including the undisputed fact that
Goresen did not know Lindholm was on the F/V Rhema at the time of
Even if Jensen's version is true, Jensen has not met
his heavy burden of demonstrating that this new evidence would
"probably change the result on a new trial." Montgomery Ward,
394 P.2d at 776. He makes a conclusory argument to this effect,
but an "explanation for [Goresen's] anger"would be unlikely to
alter a factfinder's evaluation of what happened and who was at
fault in this context. On the basis of our review of the record
and the parties' arguments, we conclude that these are not
"exceptional circumstances"which require us to overturn the
superior court's decision not to grant a new trial.
E. The Superior Court Properly Instructed the Jury
Concerning the Respective Duties of the Two Vessels
Goresen claims on cross-appeal that the jury should not
have been permitted to find him comparatively negligent, and
thereby reduce his damages. His opening cross-appeal brief
presents the issue as follows:
1. Whether a fishing vessel which
(1) enjoys full maneuverability because its
net or other gear is not extended and under
tension and (2) is traveling to a fishing
site or looking for a promising site to set
its gear out is a "burdened vessel" under
Navigation Rule 18 with the obligation
thereunder to keep out of the way of a
fishing vessel whose maneuverability is
encumbered by an extended seine or other
fishing gear under tension?
Goresen's arguments focus on Jury Instruction No. 23.15
Goresen claims that "Jury Instruction No. 23 is in error because
it requires the Jury to determine upon the evidence whether they
think the F/V Poseidon was so encumbered that it could not
maneuver sufficiently to get out of the Rhema's way." What
Goresen seems to be claiming is that the superior court should
not have given the jury the definition of a "vessel engaged in
fishing"and should not have allowed it to determine whether one
or both of the boats were engaged in fishing. In essence,
Goresen argues that the superior court should have instructed the
jury that, as a matter of law, the F/V Poseidon was engaged in
fishing and the F/V Rhema was not.
First, we conclude that Jury Instruction No. 23
correctly sets out the law, essentially restating Navigation Rule
18 of the International Regulations for Preventing Collisions at
Sea. 42 Fed. Reg. 17,112, 17,114 (1977). Whether one or both of
the vessels was a "vessel engaged in fishing"at the time of the
incident is important in determining the respective duties of the
ships under federal law. With a few exceptions, power-driven
vessels shall "keep out of the way" of vessels engaged in
fishing. Id. "Keep out of the way"means "so far as possible,
take early and substantial action to keep well clear." Id.
"Vessel engaged in fishing"refers to "any vessel fishing with
nets, lines, trawls or other fishing apparatus which restrict
manoeuvrability, but does not include a vessel fishing with
trolling lines or other fishing apparatus which do not restrict
manoeuvrability." Id. at 17,113.
Goresen argues that the F/V Poseidon was engaged in
fishing and the F/V Rhema was not, and therefore the F/V Rhema
owed a duty to "keep out of the way"of the F/V Poseidon. Jensen
responds that "there was testimony from which the jury could find
that both vessels had seine coming off the back of their sterns
at the time of the collision."
Based upon our review of the evidence we think it clear
that at the time of the collision the F/V Poseidon was engaged in
fishing. It had set its net, and was waiting for an instruction
to close from its spotter pilot. Though at the time of the
collision there may have been a small amount of seine going off
the F/V Poseidon, this does not negate the fact that the net was
set and the vessel was engaged in fishing. On the other hand
there is evidence in the record that the F/V Rhema was laying
seine at the time of the collision.16
On this record we conclude that there was evidence from
which the jury could find that both vessels were engaged in
fishing at the time of the collision.17 Under all of the jury
instructions as to the respective duties of vessels to avoid
collisions and based on the record, the jury could properly
assign comparative fault to Goresen.18
F. The Superior Court Did Not Err in Refusing to
Instruct the Jury That the First Fisher on a Site is
Entitled to Exclusive Possession of the Site
Goresen argues that the superior court should have
instructed the jury that the first fisher on a site is entitled
to "exclusive possession"of the site. He cites a line of cases,
beginning with Snug Harbor Packing Co. v. Schmidt, 394 P.2d 397
(Alaska 1964), that establish a "first in time, first in right"
rule for set net sites. This issue is important, Goresen argues,
because the value of the F/V Rhema's catch was worth more than
twice the amount the jury awarded Goresen on his conversion
claim. Yet Goresen never explains the connection between
the instruction he requested and the outcome of the case.
Goresen asks this Court to hold that "a seine fisherman has
possession of the seas within his encircled seine and he has a
possessory interest in the fish he has a reasonable expectation
to catch . . . ."According to Goresen, however, it is undisputed
that the fish whose value he wishes to recover were not within
his encircled seine. The school, according to Goresen, was
"partly inside the Poseidon's seine circle and partly outside."
The jury heard evidence regarding what the F/V Poseidon would
have caught, and made a reasonable determination.
We further note that even under Goresen's proposed
rule, the measure of damages would be the same as in this case --
the catch the rightholder was deprived of. The jury instructions
on this issue were proper. The jury was instructed that, in
order to award damages for an item of loss, it had to find that
"it [was] more likely to be true than not that [Goresen] had such
a loss or is reasonably probable to have such a loss,"and that
Jensen and Lindholm were the legal cause of the loss. The jury
was also told that the loss claimed by Goresen with regard to the
fish was simply "the net value of the fish"wrongfully taken.
We hold that the jury was properly instructed on this
issue and that there is support in the record for its verdict.19
We hold that the superior court did not err in
permitting introduction of evidence regarding Lindholm and the
potential defense witness' Lacey Act convictions for purposes of
impeachment, that the superior court correctly instructed the
jury regarding conversion and the respective duties of the two
vessels, that the superior court did not err in establishing a
constructive trust for Goresen's crew and spotter pilot, that the
superior court did not err in declining to grant Jensen and
Lindholm's motion for a new trial, and that the superior court
did not err in refusing to instruct the jury that the first
fisher on-site is entitled to exclusive possession of that site.
We therefore AFFIRM the judgment entered by the superior court.
1 This skiff was holding one end of the F/V Poseidon's
2 The superior court's determination that a conviction
pertains to a crime involving dishonesty, and is therefore
admissible for impeachment purposes pursuant to Alaska Evidence
Rule 609, is reviewed for abuse of discretion. City of Fairbanks
v. Johnson, 723 P.2d 79, 83 (Alaska 1986).
3 Lindholm also appeals from the superior court's ruling
that the conviction of a potential defense witness, Robert Day,
for the same crime was admissable for impeachment purposes. Day,
however, did not testify at trial.
4 Lindholm pled guilty to conspiracy, based upon an
alleged elaborate scheme involving exportation of herring caught
in Prince William Sound out-of-season, in violation of 5 AAC
27.310(a) and AS 16.05.060.
5 The superior court instructed the jury as follows:
You are instructed that Mr. Lindholm has
been convicted of the crime of conspiracy to
violate the Lacey Act statute, which
prohibits the catch and transportation in
interstate and foreign commerce of illegal
fish, that is fish caught in an area not open
to fishing and/or at a time the season was
not open. You may consider this evidence
only in determining Mr. Lindholm's
credibility. You may not consider this
evidence as having any bearing on the
likelihood that Mr. Lindholm committed any
wrongful act alleged by plaintiff in this
case. It is up to you, the jurors, to
determine what weight, if any, you choose to
give this evidence.
6 City of Fairbanks v. Johnson, 723 P.2d 79, 82 (Alaska
7 Lowell v. State, 574 P.2d 1281, 1284 (Alaska 1978).
8 Alexander v. State, 611 P.2d 469, 476 (Alaska 1980).
9 Jury instructions are reviewed under the independent
judgment standard. Beck v. State, Dep't of Transp. and Pub.
Facilities, 837 P.2d 105, 114 (Alaska 1992).
10 Our holding has made it unnecessary to address
Goresen's argument that his right to the herring is not the only
relevant property right with which Jensen interfered.
11 Jensen relies on Casado v. Schooner Pilgrim, Inc., 171
F. Supp. 78, 80 (D. Mass. 1959), Guarrasi v. Panama Canal Co.,
271 F. Supp. 678, 680 (D.C.Z. 1967), and Henderson v. Arundel
Corp., 262 F. Supp. 152 (D. Md. 1966), aff'd, 384 F.2d 998 (4th
In Casado, the court did not allow a crew to recover
when the defendant's alleged negligence required the vessel to be
dry-docked for five weeks. Casado, 171 F. Supp. at 79. The
court held that the crew's claim could only be based upon the
crew's lay share employment agreement. Id. The court
characterized the crew's interest in catches lost because the
vessel never embarked upon the voyage as a contractual
relationship "of the weakest sort." Id. Based upon its fear of
imposing "open-ended"obligations on the tortfeasor, the court
did not allow the crew to recover. Id. at 80. In the case at
bar, the crew was already working on the F/V Poseidon, which was
engaged in fishing, and thus the contractual relationship was
stronger. Moreover, the obligation that the superior court
imposed upon Jensen and Lindholm vis-a-vis the crew was not "open-
Henderson refused to create a rule allowing crew
recovery for unintentional, negligent interference, but endorsed
recovery under a statute that prohibited intentional
interference. Henderson, 262 F. Supp. at 159-60. In this case,
the jury found for Goresen on the conversion claim, and so it
must have concluded that the interference was intentional.
12 Though they cite to cases that involved crews in other
circumstances, Lindholm and Jensen fail to cite to a single case
in which a court used a shipowner's contractual obligations to
his or her crew to reduce an award for conversion. They cite
Newbery Alaska, Inc. v. Alaska Constructors, Inc., 644 P.2d 224
(Alaska 1982). In that case, Alaska Constructors, Inc. leased a
warehouse from Newbery, and caused a fire that destroyed
virtually all of Newbery's inventory. Id. at 225. The superior
court awarded the full value of the inventory, but Newbery
asserted that the superior court erred by not awarding Newbery
the cost of transporting replacement goods to the warehouse. Id.
We remanded for consideration of several issues, but held that an
award of transportation costs might be appropriate. Id. at 226.
Thus, Newbery does not stand for the proposition that
awards should generally be reduced to reflect contractual
obligations, or that such a principle would apply in the case of
conversion. The only manner in which Newbery potentially
supports the position of Jensen and Lindholm is Newbery's holding
that in negligence cases, plaintiffs should be restored to the
positions they would have been in but for the negligence. Id. at
225. In this case, Lindholm acted intentionally.
13 "Joe"refers to Lindholm.
14 The decision to grant or deny a motion for a new trial
is within the discretion of the trial court. Montgomery Ward v.
Thomas, 394 P.2d 774, 774-75 (Alaska 1964). We will not disturb
the trial court's ruling "except in exceptional circumstances and
to prevent a miscarriage of justice." Id.
15 Jury Instruction No. 23 reads in full as follows:
INSTRUCTION NO. 23
Coast Guard Regulation 18 provides
in relevant part that
(a) a power-driven vessel under way
shall keep out of the way of a vessel
restricted in her ability to maneuver or a
vessel engaged in fishing; and
(b) a vessel engaged in fishing when
underway shall, so far as possible, keep out
of the way of a vessel restricted in her
ability to maneuver.
1. The term "vessel engaged in
fishing"means any vessel fishing with nets,
lines, trolls or other fishing apparatus
which restrict maneuverability.
2. The word "underway"means that
a vessel is not at anchor, or made fast to
the shore, or aground.
3. The term "vessel restricted in
her ability to maneuver" means a vessel
which, from the nature of her work, is
restricted in her ability to maneuver as
required by these regulations and is
therefore, unable to keep out of the way of
4. "Keep out of the way" means
that a boat is required to, so far as
possible, take early and substantial action
to keep well clear of the other boat.
16 Goresen himself also testified that the F/V Rhema was
engaged in fishing at the time the collision occurred.
17 We specifically decline to adopt Goresen's suggestion
that "vessels engaged in fishing"should be limited as a matter
of law to "vessels with nets or lines or trawls out and fully
under tension from the resistance of the ocean against the
movement of full[y] extended gear." Whether the F/V Rhema's
maneuverability while letting out its net was restricted, and it
was therefore a vessel engaged in fishing, was properly a
question of fact for the jury.
18 Most notably, Lindholm testified that the F/V Poseidon
"encroached" upon the F/V Rhema by changing its direction
unexpectedly, turning to the right approximately sixty degrees by
the time of the collision.
19 For the above reasons, we need not address the
propriety of Goresen's proposed "first in time, first in right"