Daniels v. Stevens, 68446

• Decision Date: 25 May 1984
• Docket Number: No. 68446,68446
• Parties: DANIELS v. STEVENS et al.
• Court: Georgia Court of Appeals

Page 812

318 S.E.2d 812

171 Ga.App. 192

DANIELS v. STEVENS et al.

No. 68446.

Court of Appeals of Georgia.

May 25, 1984.

Rehearing Denied June 14, 1984.

Certiorari Dismissed Sept. 4, 1984.

R. Kran Riddle, Savannah, for appellant.

Dana F. Braun, Savannah, for appellees.

DEEN, Presiding Judge.

Appellant Margaret Daniels was injured when a gangplank was thrown on her foot while she was waiting to disembark from appellee Stevens' charter vessel, "The Waving Girl." Appellant brought suit alleging that her injuries resulted from various acts of negligence on the part of appellee and his employees, who, as a common carrier, owed a duty of extraordinary care which was breached. Appellees defended on the grounds of appellant's own negligence and denied that they were a common carrier. The trial court charged the jury as to contributory and comparative negligence, but refused to submit the issue of whether or not appellees were a common carrier. The jury returned a verdict in favor of appellees and this appeal is from the denial of appellant's motion for new trial.

1. Appellant contends that the question of whether appellees are a common carrier owing a duty of extraordinary diligence or a private carrier with only a duty of ordinary care is an issue for jury determination; that state law, not maritime law applies; and that the trial court erred in refusing to instruct the jury as requested that a common carrier of passengers must exercise extraordinary diligence to protect the lives and persons of its passengers. We do not agree.

There is no dispute that the Savannah River Harbor, where the alleged negligent acts giving rise to the appellant's injuries occurred, is a navigable waterway. Thus even though this action was brought in a state court, "[t]he legal rights and liabilities arising from that conduct were therefore within the full reach of the admiralty jurisdiction and measurable by the standards of maritime law. [Cits.]" Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 408, 3 L.Ed.2d 550 (1959). "Carrying passengers for hire is undoubtedly a traditional maritime activity, and suits in tort for personal injuries to passengers are clearly included in admiralty jurisdiction. [Cits.] The nature of the allegedly negligent acts underlying [appellant's] claims against [appellees] is largely irrelevant. It is sufficient for purposes of admiralty jurisdiction in this case that a passenger is suing for personal injuries allegedly due to the negligence of the vessel's owners and crew on navigable waters. [Cits.]" Duluth Superior Excursions v. Makela, 623 F.2d 1251, 1253 (8th Cir.1980). Consequently, there was no issue involved as to whether appellees were a common or private carrier under state law, and the trial court correctly refused to submit this question to the jury or to charge them in this regard. Accord Branch v. Schumann, 445 F.2d 175 (5th Cir.1971).

2. After charging the jury on the principles of comparative and contributory negligence, the trial court instructed them that the appellant's duty to exercise ordinary care to avoid the consequences of the appellees'...