Armour v. Gradler, Civ. A. No. 75-147 Erie.

• Decision Date: 15 April 1978
• Docket Number: Civ. A. No. 75-147 Erie.
• Citation: 448 F. Supp. 741
• Parties: Susan A. ARMOUR, Individually and as Executrix of the Estate of Roger A. Armour, Deceased, Plaintiff, v. Ruth A. GRADLER, Administratrix, C.T.A. of the Estate of Donald L. Gradler, Deceased, and Ruth A. Gradler, Individually, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

448 F. Supp. 741

Susan A. ARMOUR, Individually and as Executrix of the Estate of Roger A. Armour, Deceased, Plaintiff, v. Ruth A. GRADLER, Administratrix, C.T.A. of the Estate of Donald L. Gradler, Deceased, and Ruth A. Gradler, Individually, Defendant.

Civ. A. No. 75-147 Erie.

United States District Court, W. D. Pennsylvania.

April 10, 1978.

As Amended April 15, 1978.

COPYRIGHT MATERIAL OMITTED

James D. McDonald, Jr., Erie, Pa., for plaintiff.

John M. Wolford, Erie, Pa., for defendant.

OPINION

WEBER, District Judge.

The present action, tried non-jury before this Court, is one for damages for the personal injuries and death of Roger A. Armour brought pursuant to the Pennsylvania Wrongful Death and Survival Acts, 12 P.S. §§ 1601-1603 and 20 P.S. § 3373, and the General Maritime Law. Originally brought in state court, this action was removed by defendant who alleged jurisdiction of the cause as one in admiralty under the General Maritime Law and under the Jones Act, 46 U.S.C. § 688. Defendant also alleged the action removable by virtue of diversity of citizenship. Liability was originally premised under common law negligence, violation of the Pennsylvania Motor Boat Law, 55 P.S. § 483, et seq., and the federal Boat Safety Act, 46 U.S.C. § 1451 et seq., the Jones Act, 46 U.S.C. § 688, and the General Maritime Law. Prior to trial of the action, plaintiff abandoned her claim based on the Jones Act.

On September 9, 1972, at approximately 8 p. m., Donald L. Gradler and Roger A. Armour left the Presque Isle Marina, Erie, Pennsylvania, in Gradler's boat, the KAMAI, a 1967—30 foot Revelcraft Express Cruiser, equipped with ship-to-shore radio. At the time of departure, Gradler was operating the boat with Armour as passenger. Their families had been advised that they were going fishing in Lake Erie and that they would return by midnight. Presque Isle Marina is a sheltered lagoon from which one enters Presque Isle Bay and thereafter into the open waters of Lake Erie.

At 1:35 a. m., September 10, 1972, Mrs. Gradler called the Coast Guard and asked them to check on the whereabouts of her husband. The Station tried calling the KAMAI by radio while a Coast Guard shore patrol was discharged to check and see if the vessel had returned to its moorings. The search continued at all harbor docks and lagoons of the Presque Isle Bay area with negative results. At this time the search expanded with a Coast Guard cutter going out on an easterly patrol from the port of Erie into Lake Erie.

At 7:25 a. m., on September 10, the Coast Guard patrol spotted the KAMAI submerged with just her cabin top visible above water and no one on board. At 12:45 p. m., two dead bodies were found floating within 100 feet of each other, later identified as Armour and Gradler. Both men were properly clad in Coast Guard approved life vests and floating in almost vertical positions. The bodies were a considerable distance from the partially submerged KAMAI. It was later determined that both men suffered from exposure prior to death and died as a result of asphyxiation.

After the KAMAI was found, the Coast Guard cutter towed the partially submerged boat and beached it in the area of the Coast Guard station. Ultimately the boat was dry-docked in the Bayfront area at Erie, Pennsylvania. After recovery the examination by the United States Coast Guard revealed that the KAMAI's one-half inch plywood hull was split and set in on the bottom under the floor boards of the main cabin, eight feet aft of the bow and eighteen inches to the starboard side of the keel. At the time the KAMAI was located by the Coast Guard on Sunday, September 10, 1972, it was found in open water and there was no indication as to what, if any, obstacle may have been encountered.

Plaintiff claims defendant's decedent was negligent under common law principles, in attempting to set out in obviously rough seas in a vessel with substantial hull deficiencies thereby endangering the lives of those on board. Plaintiff claims that this action breaches Gradler's duty of reasonable care owed to those coming aboard the KAMAI. It is clear from the evidence at trial that Gradler was aware of the rough sea conditions existing on Lake Erie since warned several times prior to departure of the conditions by owners of larger craft.

The governing law of this case is found in the federal maritime law. In Kermarec v. Compagnie Generale, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 1959 where plaintiff was injured while visiting a seaman on board a vessel berthed at a pier in New York Harbor, the Supreme Court held that the district court erred in applying New York substantive law where the petitioner was injured aboard a ship upon navigable waters. The Court held the cause to be governed by standards of maritime law even though jurisdiction was originally premised on diversity grounds. See also Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 1953. As in Kermarec, the injuries and death of Armour occurred aboard a vessel upon navigable waters. It was there the conduct of which plaintiff complains took place. Therefore, the legal rights and liabilities arising from that conduct are within the full reach of admiralty jurisdiction and measureable by standards of maritime law. "If this action had been brought in state court, reference to admiralty law would have been necessary to determine the rights and liabilities of the parties." Kermarec, 358 U.S. at p. 628, 79 S.Ct. at p. 408; Branch v. Schumann, 445 F.2d 175 5th Cir. 1971; King v. Alaska Steamship Co., 431 F.2d 994 9th Cir. 1970. The law of admiralty also extends to the cause even though it involves the operation of small private pleasure craft engaged in noncommercial navigation on navigable waters. Kelly v. United States, 531 F.2d 1144 2d Cir. 1976; St. Hilaire Moye v. Henderson, 496 F.2d 973 4th Cir. 1973, cert. denied Henderson v. Moye, 419 U.S. 884, 95 S.Ct. 151, 42 L.Ed.2d 125 1974. Once admiralty jurisdiction established then all the substantive rules and precepts peculiar to the law of the sea become applicable and therefore plaintiff's cause will be determined under principles of maritime negligence rather than common law negligence.

Another basis of liability asserted by the plaintiff is the claim for damages due to Gradler's breach of the warranty of seaworthiness. The admiralty law extends the absolute right of a seaworthy vessel to a member of a ship's company or someone aboard performing the ship's work. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 1946; Kermarec v. Campagnie Generale, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 1959.

In essence, the seaworthiness doctrine requires that things about the vessel, whether the hull, the decks, or the machinery, must be reasonably fit for the purpose for which they are used. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 1963. To establish the "tort" of unseaworthiness it must be shown that the work performed by the person claiming liability under the doctrine was "in the ship's service" and that the warranty of seaworthiness thereby extends to him, Gutierrez, supra, and that the complainant was injured by an item of the ship's equipment not reasonably fit for its intended use. Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303 9th Cir. 1970.

The basis of the Kermarec decision is that the vessel owner owes a duty of due care, not of seaworthiness, to those aboard with the owner's consent who are not in the privileged "seamen" class. In that case, it was also determined that the admiralty law would not differentiate between licensees and invitees.

The "status" or relation which determines whether one is "in the ship's service" can arise only where the individual seeking to invoke liability for unseaworthiness is engaged in ". . . the `type of work' traditionally done by seamen, and were thus related to the ship in the same way as seamen `who had been or who were about to go on a voyage', . . ." United New York and New Jersey Sandy Hook Pilot's Ass'n. v. Halecki, 358 U.S. 613, 617, 79 S.Ct. 517, 519, 3 L.Ed.2d 541 1959.

During the trial of the within action, no evidence was introduced describing the function Armour played pertaining to the voyage of the KAMAI on September 10, 1972. Aside from allegations of the intentional scuttling of the KAMAI, the evidence clearly shows that Armour and Gradler left Presque Isle Marina with the sole intent of fishing in Lake Erie. Mrs. Gradler testified that this was the intent of her husband as expressed to her several times that last morning and afternoon. Mrs. Flickenger, owner of a boat berthed close to Gradler at the Presque Isle Marina, also testified that Gradler had inter alia told her he intended to go out fishing that night. Thus, testimony at trial could not qualify Armour as one employed in the ship's service or performing ship's work.

Our research reveals no case in which a passenger on board a pleasure craft for recreational purposes only and not for hire based an action for damages against the owner of the craft on the seaworthiness doctrine unless "seaman" status was first established. Such a status was established for a member of the voluntary crew of a pleasure yacht where every crew member performed duties in connection with the vessel under the direction of its skipper. In re Read's Petition, 224 F.Supp. 241 S.D.Fla. 1963.

Plaintiff was not aboard the KAMAI to perform the traditional duties assigned to one in the ship's employ. Armour and Gradler intended to go fishing and any assistance rendered by Armour was voluntary and not under orders in the sense of a traditional master/crew arrangement. No evidence was presented that the craft required two people for safe operation, nor that a substantial part of Armour's role on the boat was to aid in navigation of the craft. The only evidence produced at trial with respect to the actual operation of the KAMAI...