Dunion v. Kaiser, 289.
| Decision Date | 21 September 1954 |
| Docket Number | No. 289.,289. |
| Citation | 124 F. Supp. 41 |
| Parties | John J. DUNION, Jr. v. Frederick KAISER, Barbara Kaiser and Frederick Kaiser Products, Inc. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Freedman, Landy & Lorry, Philadelphia, Pa., for libellant.
Clark, Ladner, Fortenbaugh & Young, Philadelphia, Pa., for respondents.
This is a suit in admiralty brought by the owner of a motorboat, the "Jay Dee", for damages caused to the boat in a collision occurring in the course of a powerboat race. This opinion will state the Court's Findings of Fact and Conclusions of Law in narrative form since separate and numbered findings would be cumbersome and lengthy to a degree not warranted or necessary to a proper disposition of the action.
Libellant's motorboat was a twenty-two foot runabout, the engine of which had been altered and tuned to gain maximum racing performance. In the race involved and at the time of the collision, the boat was being driven by libellant's son, John J. Dunion, III, accompanied by an observer-assistant, as is usual in such cases, designated in powerboat racing terms as a "mechanic". The other boat involved in the collision was a similar twenty-two foot runabout, the "Captain Rocking Chair II", owned by respondent corporation and driven by one of the individual respondents, the then Barbara Kaiser (now Barbara Kaiser Henderson). The role of "mechanic" for this boat was being filled by the driver's father, Frederick Kaiser, who also has been made a respondent in the libel.
The race was run on the afternoon of July 29, 1950, in Great Egg Harbor Bay off Ocean City, New Jersey. The course was marked by two buoys approximately a mile and a quarter apart. The entrants were required to proceed in a counter-clockwise direction from a starting line near one buoy, to round the far buoy and return. The track of the boats around the course would therefore trace an ellipse. Five boats were entered in the race, only two of which are in anywise involved in this action. The boats, by racing rules and custom, were required to proceed each in one of five previously assigned "lanes", all of which were parallel and the centers of which were in this case about fifteen feet apart. Each boat ordinarily remained in its starting "lane" unless it could advantageously move to another "lane" without interfering with or endangering any other boat. These "lanes" were not marked in any way and after the start of the race the exact position of any particular boat in any given "lane" was fixed only by the judgment of the drivers as to where the "lane" should lay.
At the start of the race here involved libellant's boat had been assigned to and proceeded in the outside "lane". This was the most disadvantageous position from the standpoint of distance to be traveled to complete the race. The Kaiser boat was in the next adjoining inside "lane" and the other three boats occupied the next three inside "lanes". The boats of libellant and respondents outstripped the other three boats on the first straightaway after the start and as the far buoy was approached the stern of Dunion's boat was about a boat length ahead of the bow of the one driven by Barbara Kaiser. Both boats had moved somewhat toward the inside of the course but were on parallel courses and in adjoining "lanes", Dunion still being outside of the other boat's projected track and leaving about eight feet of open water between their respective courses. As young Dunion reached a point on a line drawn through the buoy being rounded and perpendicular to the axis of the course he began his turn to the left. His boat was at that time about twenty-five feet from the buoy and moving at thirty-five miles per hour. The Kaiser boat began its turn at about the same speed upon reaching the same line but was not successful in maintaining a smaller are inside that being described by the "Jay Dee". The two collided at a point on a line extending from one drawn between the two buoys or about in the middle of the turn. The angle of collision was about forty-five degrees, the bow of the Kaiser boat staving in the hull of Dunion's boat slightly abaft of 'midships on the port side. Dunion drove his boat in a sinking condition to a nearby dock from which place it was later salvaged and repaired. The Kaiser boat was undamaged by the collision. Libellant alleges fault arising from want of skill and ability on the part of Barbara Kaiser and unseaworthiness in that the Kaiser boat at the time of the race had a cracked rudder stuffing box casting which imparted poor steering characteristics to the Kaiser boat and which defect respondents had reason and opportunity to know about and correct.
The hull and engine of the "Jay Dee" had been purchased new for $4,376.88 or $2,846.88 for the hull and $1,530.00 for the engine. Its estimated worth before the collision was $3,400. Repairs to the engine cost $138.04 and to the hull $1,097.50. After repair the engine was worth $1,200.00 which is exactly what it would have been worth at that time had it not been submerged. A new engine worth $1,530.00 was installed in the repaired hull and the whole sold for $3,500.00 of which amount $1,970.00 was involved as the cost of the hull. The proceeds of this sale were $100.00 more than libellant's expert's estimate of its worth before the collision but the new engine was worth $330.00 more than the old. Libellant's loss was therefore the cost of repair, or $1,235.54 plus $230.00, or $1,465.54. The repaired engine was retained by libellant and, as aforesaid, did not suffer in value by reason of its submersion and repair. As a matter of fact, Dunion went on to win a National Championship in a similar boat powered by the identical engine.
There is no convincing evidence before me in this case that Barbara Kaiser's skill and ability as a speedboat driver fell below that level of attainment usually accepted of contestants in that boat race or others of like nature conducted under the same auspices. She had participated in other similar races with the same general community of powerboat enthusiasts, as had young Dunion. There is no indication that Dunion made any protest before the event to the officials conducting the race with regard to her participation in the race or qualifications to do so. It is undisputed that she was attentive to the guidance of the boat and used her best efforts to turn the boat sharply enough to avoid the collision, but was unable to do so. There was testimony that her stature did not permit her feet to readily reach the deck of the boat while she was seated in the driver's seat. Also there was testimony that her boat had been equipped at...
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