COMPLAINT OF MARTELL
| Decision Date | 20 July 1990 |
| Docket Number | No. 88-1704-CIV,88-1735-CIV and 88-6714-CIV.,88-1704-CIV |
| Citation | 742 F. Supp. 1147 |
| Parties | In the Matter of the Complaint of Silvio MARTELL and Donald Proietto for Exoneration from or Limitation of Liability as to the Owners of the M/V "LA DOLCE VITA". In the Matter of the Complaint of ROSCIOLI YACHTING CENTER, INC. and Guy Gannett Publishing Co. for Exoneration from or Limitation of Liability as the Owners Pro Hac Vice and Bareboat Charterers of the M/V DONZI Z 33 CROSSBOW VIN # FL8877EK. In the Matter of the Complaint of DONZI MARINE CORPORATION, a Florida Corporation, for Exoneration from or Limitation of Liability as the Owner of the 1987 DONZI Z 33 CROSSBOW. |
| Court | U.S. District Court — Southern District of Florida |
Ronald Fitzgerald and Robert L. Spector, Ft. Lauderdale, Fla., for claimants.
Jonathin Fordin, Miami Beach, Fla., for defendants.
These proceedings present various claims for an exoneration or limitation of liability pursuant to the Limitation of Liability Act.1 46 U.S.C.App. § 181-188 (1958) (). The Petitioners Roscioli Yachting Center, Inc. ("Roscioli") and Guy Gannett Publishing Co. ("Guy Gannett") are bareboat charterers of the M/V Donzi Z 33 Crossbow.2 The Respondents Stephen Lamar Barrett and Linda Sue Barrett are the parents of the decedent Sean Barrett. These parties were brought together by an accident which occurred in the Intracoastal Waterway at or near the Dania Beach bridge on July 26, 1987, resulting in the tragic death of Sean.
Subsequently, Stephen and Linda Barrett filed a wrongful death action in the Broward County Circuit Court (Case no. 88-06829-CP). Petitioners responded by filing with this Court their respective applications for exoneration or limitation of liability. Following a hard fought round of pretrial motions and discovery, this case proceeded to non-jury trial on all issues except damages.3 The Court now enters these findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). We proceed fully cognizant of the depth of emotion that this action must naturally invoke.
1. The Respondents, Stephen Lamar Barrett and Linda Sue Barrett, are the duly appointed Personal Representatives of the Estate of Sean Benjamin Barrett, their deceased son.
2. The beneficiaries of the wrongful death action of Sean Benjamin Barrett include both his estate and his parents.
3. Petitioner, Guy Gannett, was a foreign corporation authorized to do and was doing business in the State of Florida at all times material to the allegations contained herein and was the owner, operator and licensee of radio station WZTA at 94.9 FM a/k/a ZETA 4.
4. Petitioner, Roscioli, was a Florida corporation doing business in the State of Florida at all times material to the allegations contained herein and was the entity which leased the Donzi Crossbow to Guy Gannett.
5. At all times material to the allegations contained herein, Donzi Marine Corporation had owned and manufactured the 1987 Donzi Z 33 Crossbow (hereinafter "Donzi Crossbow") with Hull Identification Number DMRZE098E787 and Dealer Registration Number FL 8877ED with the markings "Bud-Lite — Zeta" on its sides in large painted letters.4
6. The Donzi Crossbow was a pleasure craft and a seagoing vessel used by Roscioli and Guy Gannett for commercial purposes. Specifically, Roscioli leased the vessel to Guy Gannett, who in turn used the vessel to promote its radio station and Bud-Lite beer.
7. Roscioli had obtained by direct charter agreement from Donzi Marine Corporation the sole, complete and exclusive right to possess and control the vessel. Having secured this position, Roscioli then subchartered the vessel to Guy Gannett while retaining no rights of possession to itself. Guy Gannett then had the exclusive right to control the Donzi vessel, including time and frequency of operation, destination, provisioning, procurement of insurance, crew selection and maintenance. The only status retained by Roscioli was ultimate responsibility for the vessel's safe return to its owner Donzi Marine Corporation.
8. On Sunday, July 26, 1987, at approximately 4:30 p.m., a tragic boating accident occurred on the Intracoastal Waterway in Broward County. This accident occurred in the vicinity between the Dania Beach Boulevard Bridge and the Dania cut-off canal.
9. The weather conditions existing at the time of the accident were good. It was sunny and clear.
10. Three vessels were players in this accident. The Barrett vessel was heading north. The Donzi Crossbow was also heading north and following the Barrett vessel. A third vessel, a Sea Ray, M/V "La Dolce Vita", was proceeding south.5
11. The Donzi Crossbow cleared the no wake zone at the Dania Beach Bridge and accelerated to pass the Barrett vessel on the right. As the Donzi passed the Barrett vessel, it was travelling at an excessive rate of speed for the existing conditions, producing a large wake. As a result of this wake, the Barrett vessel capsized.
12. After capsizing, the Barrett vessel immediately sank and Sean Barrett suffered death by drowning.
13. The powerful wake produced by the Donzi Crossbow was one of the proximate causes of the Barrett vessel capsizing.
14. The Donzi Crossbow was seen speeding on the day of the accident and on past occasions during the summer of 1987.
15. On the day of the accident, the operator of the Donzi Crossbow was Captain John James Huard. Captain Huard holds a 100 ton captain's license and has operated sea-going vessels for twenty years. Captain Huard clearly observed the Barrett vessel and should have been aware of the danger of capsizing, given the circumstances. Notwithstanding he proceeded to pass at an excessive rate of speed.
16. On the date of the accident Captain Huard was employed by Guy Gannett to operate the Donzi vessel. In return for his services, Guy Gannett paid Captain Huard an hourly wage of twenty ($20.00) dollars.
17. However, this was not the case with regard to the relationship Captain Huard maintained with Roscioli. On the date of the accident Captain Huard was not acting on behalf of Roscioli.6
18. The other occupants in the Donzi vessel were Eugene J. Machael III a/k/a Lee Gillette and Janis Estelle Levy. Gillette was an employee and representative of Guy Gannett's radio station, Zeta 4.
19. The Barrett boat, with Wellcraft decals, was rebuilt and restored by one Ron Weins who sold the vessel to Stephen Lamar Barrett. Barrett bought the vessel at an outdoor boat sale.
20. The Barrett vessel was 19' 81" in length, with a Tuna Tower 7' in width and over 10' in height. In addition, this vessel had limited seating capacity.
21. The Barrett vessel had been used without incident on several occasions prior to the time of this accident.
22. The operator of the Barrett vessel at the time of the accident was Tommy Bailey. Mr. Bailey did not have any marine license nor had he ever taken any safe boating courses.
23. Bailey undertook operation of the Barrett vessel only moments before the accident occurred. Prior to that time, Stephen Barrett had performed all of the navigational responsibilities.
24. Bailey attempted to avoid the wake produced by the Donzi vessel. However, given the amount of alcohol he had previously consumed and his limited boating experience, Bailey's options were limited and the accident was inevitable.
25. The seven other occupants on the Barrett vessel included Stephen Lamar Barrett, Linda Barrett, Sean Barrett, Karen Griffith, Charles Griffith, Dale Lewis and Carol Anderson.
26. At no time prior to the accident had there been more than four occupants aboard the Barrett vessel.
27. At the time of the accident, there were two people in the Tuna Tower with a combined weight of approximately 380 pounds. This was the first occasion that two individuals simultaneously occupied the Tuna Tower.
28. The six other occupants aboard the Barrett vessel had a combined weight of approximately 800 pounds.
29. As testified by a defense expert, the tuna tower was not stable, especially given the large number of passengers and their combined weight.
30. Considering the number of occupants aboard the Barrett vessel in conjunction with the stability tests conducted by the various experts, the Court finds that this vessel was unstable for the manner in which it was being used. This instability was one of the proximate causes of the Barrett vessel capsizing.
31. On the day of the accident there was a case of beer and two gallon jugs of wine aboard the Barrett vessel. The beer was consumed by the four men aboard.
32. Two and one half hours after the accident, Bailey's blood alcohol level was determined to be .06 by toxicologist Gene DeTuscan.
33. It was the accepted practice for Captain Huard and other employees and/or agents to use the Donzi Crossbow to promote the interests of Zeta-4 and Bud-Lite beer. In support of this promotion, the crew aboard the vessel would travel the Intracoastal Waterway making scheduled appearances at various restaurants. Once at the restaurant, the crew would distribute Zeta 4 and Bud-Lite promotional gifts to the patrons.
34. Although young Sean was not wearing a life preserver at the time of the accident, the Court finds that this was not a legal cause of the accident. In our view, a life preserver would have made no difference, given the circumstances of the accident. When the vessel capsized, Sean, like his mother, was undoubtedly thrown directly under the hull in the dark, murky waters of the Intracoastal Waterway. The mother testified that she was barely able to locate an air pocket and survive the ordeal. A baby such as Sean had no chance. While the Court does not condone Linda Barrett's failure to reposition the life preserver after leaving the restaurant, we nonetheless conclude that this failure did not contribute to his death.7
35. Given the...
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