Guilbeau v. Calzada

• Decision Date: 05 October 1970
• Docket Number: No. 4018,4018
• Citation: 240 So.2d 104
• Parties: Mrs. Gloria GUILBEAU, for Herself and as Natural Tutrix of the Minors Van Guilbeau and Wanda Guilbeau, Edward Guilbeau, Kenneth Guilbeau, Mrs. Aloma G. Brunet, and Mrs. Betty Guilbeau v. Charles CALZADA.
• Court: Court of Appeal of Louisiana — District of US

Page 104

240 So.2d 104

Mrs. Gloria GUILBEAU, for Herself and as Natural Tutrix of the Minors Van Guilbeau and Wanda Guilbeau, Edward Guilbeau, Kenneth Guilbeau, Mrs. Aloma G. Brunet, and Mrs. Betty Guilbeau v. Charles CALZADA.

No. 4018.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 5, 1970.

Rehearing Denied Nov. 2, 1970.

Robert I. Broussard, Gretna, and Hugh G. Oliver, Westwego, for plaintiffs-appellants.

Campoy, Hurley & Senter, Joe L. Horne, New Orleans, for defendant-appellee.

Before REDMANN, BARNETTE and SWIFT, JJ.

SWIFT, Judge.

This suit arose from a collision of two motorboats which occurred around 5:00 P.M. on May 19, 1968, on Bayou Segnette, near Westwego, Louisiana.

Andrew Eddie Guilbeau, Sr., owner and operator of one of the boats, lost his life by drowning as a consequence of the accident. His widow, Gloria Guilbeau, and their six children have sued for damages resulting from his death. Mrs. Guilbeau, two of her children and her daughter-in-law, who were passengers in the boat, also seek to recover damages for their own personal injuries.

Following a trial on the merits, the trial judge concluded that both boat operators were guilty of negligence and denied recovery in the death action. However, in the personal injury actions judgments were awarded the plaintiffs in the following amounts: $606.10 to Gloria Guilbeau; $250.00 to Gloria Guilbeau as natural tutrix of Van Guilbeau; $358.75 to Betty Broussard Guilbeau; and $756.50 to Kenneth Guilbeau. The reconventional demand of Charles Calzada was dismissed.

From this judgment plaintiffs have appealed, assigning as the principal error the trial judge's conclusion that Andrew Guilbeau was guilty of negligence that was a proximate cause of the accident. The defendant has answered the appeal.

Involved in the collision were a 22-foot fiberglass boat powered by a 155 horsepower Buick marine engine, owned and operated by Charles Calzada, that was moving down the bayou away from Westwego, and a 17-foot 'Lafitte Skiff' powered by a Ford automobile engine, owned and operated by decedent, Andrew Guilbeau, Sr., which was travelling toward Westwego. The record shows that Calzada had purchased the boat in April, 1968, from North American Boat Corporation and had operated it in the area of the accident only a few times. He was an experienced boatman, however, and was fully familiar with this general area. Andrew Guilbeau constructed his boat with the help of a friend, and the first occasion he used it was on the day of the accident.

Passengers in the Guilbeau boat at the time of the collision were: Mrs. Gloria Guilbeau, Van Guilbeau, Kenneth Guilbeau and the latter's wife, Betty Broussard Guilbeau.

Charles Calzada was accompanied by Donald Calzada, his brother, their two sons, Joseph Calzada, his father, and Ivy Ehret, a brother-in-law.

Bayou Segnette is a narrow, winding channel connecting the boat launch at Westwego with Lake Cataouatche. Photographs offered in evidence disclose that the channel makes practically a 90 degree turn at the place where the accident occurred called 'Yankee Camp.' Trees and foliage obstruct the view so that approaching boatmen cannot see around the bend, which turns to the left in the direction the Calzada boat was moving.

Of the Guilbeau passengers only Kenneth Guilbeau was able to testify with any degree of specificity with regard to the manner of the accident's occurrence. He said that prior to the collision his father operated the boat on the right side of the channel and moved generally in the direction of Westwego. He further testified he observed the defendant's boat approaching in the middle of the channel and swerving toward the east bank just prior to the accident . The other boat was only about 20 or 25 feet away when he first saw it.

William Nealy, 75 years of age, was called as a witness by plaintiffs. He was trying to start the outboard motor on his boat about 15 or 20 feet from the west bank of the waterway and almost directly across from where the collision occurred. Nealy testified he heard the noise of defendant's engine before he saw the boat. Shortly before the impact the defendant was travelling in the middle of the waterway at an estimated speed of about 25 or 30 miles per hour. According to Nealy, defendant veered sharply to the left on seeing the approaching Guilbeau boat. He said Guilbeau made no sudden turns before impact, but rather travelled in a straight path about 30 feet from the east bank at a speed from five to seven miles per hour. Nealy saw only the boats involved in the collision, and that of his brother-in-law, C. J. Fontenot, located at the edge of a dredged area of the east bank of the channel. He did not see any boat following the Lafitte skiff.

C. J. Fontenot, brother-in-law of Mr. Nealy, testified he began fishing near the west bank of Bayou Segnette, but later moved his boat to a cut or dredged area in the east bank of the bayou. Shortly after arriving in the cut Fontenot noticed Nealy having difficulty starting his outboard motor, and started to return to the west bank to assist him when he heard the noise of the approaching boats. Defendant approached Fontenot from the right, travelling in the middle of the waterway at a high rate of speed. Fontenot related that the Guilbeau boat approached from his left, travelling near the east bank of the waterway at a speed of about five to ten miles per hour. Calzada, according to Fontenot, made a sharp turn toward the east bank, crossing the path travelled by Guilbeau, who did not change his speed or direction of travel prior to the accident.

Carl Jervis who was called as a witness for defendant, testified that he followed approximately one-half block to 300 feet behind the Guilbeau boat for about five or ten minutes at a speed of about 30 miles per hour. He was aware of the speed because the boat he was operating was equipped with a rather accurate speedometer. However, he said they gained a 'little bit, gradually' on the Lafitte skiff. Both boats were about in the middle, or slightly to the right, of the channel. According to this witness' version of the accident, defendant came around the turn about in the middle of the waterway, but on seeing the approaching boat, reduced his speed and made a controlled left turn toward the east bank. Guilbeau also turned toward the east bank, but only after Calzada had already begun his turn. The boats collided near the channel's east bank.

Jervis' account of the accident was corroborated in most respects by Mr. and Mrs. Melvin Odenwald, his brother-in-law and sister, who accompanied him in the boat.

Charles Calzada testified that he had attended the Lafitte Pirogue races on the morning of May 19, 1968, and on arriving at Westwego met his father and brother-in-law whom he offered to carry to a fishing camp. Approaching the site of the accident, Calzada operated his boat generally in the center of the channel at a speed of about 20 miles per hour. On entering the 90 degree turn he said he was confronted with what appeared to be four oncoming boats, each travelling abreast of the other. In an attempt to avoid the imminent collision, Calzada moved the gear shift to a neutral position and swerved toward the east bank. The Guilbeau boat turned a hard right, and the impact occurred immediately thereafter. Calzada contended that the accident would not have happened if the other boat had gone straight. He placed the point of impact near the center of the waterway.

Although they did not observe all particulars, the other three adults on the Calzada boat generally confirmed his testimony as to the manner in which the accident occurred.

It is clear from the record and undisputed by the parties that Bayou Segnette is navigable in fact. Since the collision of the two boats occurred on navigable waters of the United States, the dispute is cognizable in admiralty and the state courts have concurrent jurisdiction with the federal district courts. Rojas v. Robin, 230 La. 1096, 90 So.2d 58 (1956); Beavers v. Butler, 188 So.2d 725 (La.App. 2 Cir. 1966). And as the court said in the latter case, 'When a maritime matter is pending in a state court, that court is required to follow the substantial maritime law, supplemented by state law if no contradiction appears.' (Page 728).

The facts of the present case with respect to the collision and its cause are quite analogous to those involved in Beavers. Like the Court of Appeal, Second Circuit, we are convinced that under such circumstances if either boat operator had been alert and keeping a proper lookout, or had been proceeding at a reasonable speed, the accident could have been avoided, and that both of the operators were guilty of negligence that proximately caused the collision under federal maritime law as well as the state law.

Although the evidence is conflicting, the preponderance thereof has convinced us that both boats were travelling in the neighborhood from 20 to 30 miles per hour as they approached the 90 degree bend in the channel. Despite the fact that foliage obstructed their view, both Guilbeau and Calzada proceeded at full speed, without regard for unseen boats around the turn. Both boats were travelling about in the middle of the channel, and when they came into view of each of the operators the boats were in close proximity. Defendant immediately turned his boat sharply toward the east bank and reduced its speed. A moment or so later Guilbeau turned his boat toward the east bank, striking the starboard side of the Calzada boat with the front and to some extent the port side of the Guilbeau boat.

Neither operator appears to have kept to his right side of the channel as required by Article 25 of the federal navigation rules applicable to inland waters. (33 U.S.C.A. 210). The applicability of Rule 18, requiring boats meeting each other on their port sides, is doubtful in this instance because these boats were not approaching each other...