                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PEDRO PANGELINAN PINAULA and                     No. 11-15819
LINDA CRUZ PANGELINAN,
                                                 D.C. No. 1:09-cv-00032
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

BANGA BANDHU BAIDYA and
SEAHORSE INC. SAIPAN,

              Defendants - Appellees.



                 Appeal from the United States District Court
                for the District of the Northern Mariana Islands
             Wm. Fremming Nielsen, Senior District Judge, Presiding

                      Argued and Submitted October 17, 2012
                                Honolulu, Hawaii

Before: REINHARDT, THOMAS, and PAEZ, Circuit Judges.

       The district court found that comparative negligence was shared equally

between plaintiff, Pedro Pinaula, and defendant, Banga Baidya. It estimated that



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Pinaula had been injured for about six months and awarded damages accordingly.

Pinaula appeals the finding of comparative negligence and the finding that he was

injured for six months. We reverse and remand for further proceedings.

      1. The district court made an error of law in finding that Pinaula was

negligent. Courts sitting in admiralty “look[] to the common law in considering

maritime torts.” Royal Ins. Co. of Am. v. Sw. Marine, 194 F.3d 1009, 1015 (9th

Cir. 1999) (internal quotations and citations omitted). The common law requires a

fact-finder to consider “the customs of the community, or of others under like

circumstances,” as a factor when determining whether conduct is negligent.

Restatement (Second) of Torts § 295A (1965); see also 7 N. Mar. I. Code § 3401

(2011) (adopting “the rules of the common law, as expressed in the restatements of

the law” in the absence of contrary local law). Here, the district court failed to

consider evidence showing that the use of M-boats is customary among fishermen

in the Northern Mariana Islands. The court therefore erred in its application of the

relevant law. We therefore reverse the finding that Pinaula was negligent.

      2. The district court also erred in finding that Pinaula was injured for only

six months. The record shows that Pinaula first sought medical attention three

months after the accident and continued to seek medical attention intermittently

from November 2007 until February 2010. The district court’s finding that he was


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injured for only six months was therefore implausible and without support from the

record, making it clearly erroneous under the Hinkson standard. See United States

v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009).

      REVERSED and REMANDED.




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