Court reinstates lawsuit by fisherman nearly hit by freighter 

A federal appeals court in San Francisco today reinstated a lawsuit filed against the Danish owners of a freighter by a fisherman whose boat was nearly hit by the ship in heavy fog off Point Reyes in 2007.

The freighter, the Eva Danielsen, passed close to the Marja, a fishing boat owned by Brian Stacy of Morro Bay, without harming him on the afternoon of July 13, 2007.

But the ship went on to collide with another fishing vessel, the 28-foot Buona Madre owned by fisherman Paul Wade, 55, of Capitola, who later drowned. Wade's body was found floating in the water the next day.

Stacy did not witness the cargo ship's collision with the Buona Madre and did not learn until four days later that there had been a crash and that Wade had drowned.

Stacy claimed in a federal lawsuit that he suffered serious emotional distress because he was within a so-called "zone of danger" from the Eva Danielsen, which he alleged was operated negligently and recklessly in the thick fog.

The lawsuit was filed against the Bahamian-flagged ship's owners and operators, Rederiet Otto Danielsen, A.S., and K/S Aries Shipping of Denmark.

The suit also alleged that Stacy's emotional distress, which caused him to miss work and seek medical help, was partially based on an alleged link between the incident concerning his boat and Wade's death.

The crew of the Eva Danielsen had reported to the Coast Guard that they may have hit a smaller boat, and Stacy heard on radio traffic that the boat was believed to have been the Marja.

After Stacy radioed that his boat had not been hit, a search for possible victims was called off and Stacy resumed trolling for salmon. Authorities later said that Wade, who was wearing a life jacket, may have survived for several hours before being overcome by the cold water.

In today's ruling, a panel of the 9th U.S. Circuit Court of Appeals by a 2-1 vote overturned a decision in which U.S. District Judge Claudia Wilken dismissed the lawsuit last year.

Wilken ruled that Stacy could not claim emotional distress because he didn't witness another person being harmed or killed at the same time that he was physically threatened.

But the appeals court majority said that under U.S. Supreme Court doctrine, Stacy did not need to have witnessed harm to another person and could base his claim on the allegation that he was personally in physical danger.

"Stacy alleged that he was within the zone of danger and that he suffered emotional distress from fright caused by the negligent action of the defendants," Circuit Judge John Noonan wrote. "Nothing more was required to assert a cause of action under maritime law."

The panel sent the case back to the trial court for further proceedings and a possible trial.

Stacy and the Danish owners agreed in court papers that although he couldn't see the Eva Danielsen in the fog, it passed so close to his boat that he could hear engine and machinery noises and feel the ship's wake.

Stacy had detected the 291-foot freighter on radar when it was a mile away and radioed the captain, who then changed course to avoid his boat.

The lawsuit alleges the freighter's owners and operators negligently allowed it to proceed at an unsafe speed in fog in a crowded fishing ground without proper lookouts, fog signals and use of radar.

Wade's widow, Lori Wade, also sued the two companies in federal court, but her lawsuit was settled last year.

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