In re Delmarine, Inc.

• Decision Date: 24 October 2007
• Docket Number: No. CV 03-6206(ADS).,CV 03-6206(ADS).
• Citation: 520 F.Supp.2d 422
• Parties: In the Matter of the Complaint of DELMARINE, INC., as Owner of a Certain 1973 18' Signa Bowrider for Exoneration from or Limitation of Liability.
• Court: U.S. District Court — Eastern District of New York

520 F.Supp.2d 422

In the Matter of the Complaint of DELMARINE, INC., as Owner of a Certain 1973 18' Signa Bowrider for Exoneration from or Limitation of Liability.

No. CV 03-6206(ADS).

United States District Court, E.D. New York.

October 24, 2007.

Bennett, Giuliano, McDonnell & Perrone, LLP, by: Joseph J. Perrone, Esq., of Counsel, New York, NY, for Delmarine, Inc. and Defendant Michael J. Starito, Jr.

Tabak, Mellusi & Shisha, Esqs., by: Jacob Shisha, Esq., of Counsel, New York, NY, for the Claimants Linda Fainer and Gregory Fainer.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

Never before have water-based recreational activities been so popular. Each summer lakes, river, harbors and seas of the United States teem with recreational watercraft. If undertaken with proper regard for safety, these activities provide great enjoyment. Regrettably, safety is often neglected by careless operation or improper lookout.

On June 9, 2003, at approximately 3:00 P.M., in the Great South Bay of Long Island, two motor boats collided, causing serious injuries to Linda Fainer ("Linda") a passenger in the Fainer boat operated by her husband Gregory Fainer ("Gregory"). Based on their personal injuries sustained in the collision, the Fainers commenced a lawsuit in New York Supreme Court, Nassau County, on September 10, 2003. Three months later, on December 9, 2003, Delmarine Inc., the owner of the Signa motorboat commenced a maritime claim pursuant to the limitations of Shipowners' Liability Act, 46 App. U.S.C. § 181, et seq., now 46 U.S.C. § 30503 et seq., to limit its liability. The State Supreme Court action was removed and consolidated with the pending federal court action. The Gregory Fainer personal injury claim has been settled. Remaining, for this Court's consideration, is Linda's claim for damages.

In this non jury maritime action, the Court must determine the fault between the Delmarine vessel and the Gregory Fainer vessel, and the damages sustained by Linda. The parties have stipulated to resolving the issue of limitations of liability pursuant to an agreement. The issues before this Court are (1) responsibility for the collision, and (2) if Delmarine or Michael Starito, Jr. ("Starito"), the operator of the Delmarine vessel, are found at least partially at fault, the Court must make a determination as to the damages due to Linda.

Initially, the Court notes that, in their trial memorandum of law dated July 23, 2007, counsel for Delmarine and Starito stated that "since both parties violated Rule 5 and Greg Fainer also violated Rule 9, a 66.7% attribution to Greg Fainer and 33.3% attribution to Delmarine as a split in liability is the correct result." The references to Rules 5 and 9 refer to the Steerage and Sailing Rules of Title 33 U.S.C. § 2005 (Rule 5) and § 2009 (Rule 9). Also, in their Post-Trial Submission dated September 7, 2007, counsel for Delmarine and Starito stated "Upon all of the testimony educed (sic) at trial, the Delmarine's position that liability is at best 50/50, and should in fact be 40% Delmarine, 60% Greg Fainer." In addition, in his closing arguments on September 12, 2007, counsel for Delmarine stated that, as to liability, this case was "at best, 50-50."

I. THE SPOLIATION ISSUE

In response to repeated requests by Delmarine's counsel to inspect the Fainers' Four Winns boat, it was revealed that Gregory Fainer disposed of Four Winns by bringing it to the "Merrick Dump" during the "last week July 2003, but prior to August 1, 2003." The Fainers admitted that neither they nor their then attorney Mitchell Sommer, Esq. offered Four Winns for inspection by Delmarine's expert retained to determine the cause of the collision. On the basis of a claim of spoliation, Delmarine moved to dismiss the Fainers' claims. Following a hearing before United States Magistrate Judge James Orenstein, he found that, as a result of "misguided advice" from their former attorney, "the Fainers spoiled evidence (the Four Winns boat) that their counsel knew Delmarine had requested....". Magistrate Judge Orenstein further found that:

"The difficulty in this case lies in the fact that the party responsible for the spoliation is almost as blameless as the party deprived of evidence. The Fainers spoliated evidence only because their attorney failed to advise them of their responsibility to preserve it. I will therefore fashion a sanction that places the burden as much as possible on the person primarily responsible for Delmarine's lack of evidence, without unduly prejudicing either Delmarine or the Fainers."

The remedy directed by Judge Orenstein, in the event the Delmarine expert was unable to render a reliable opinion as to the cause of the accident based on an inspection of the vessel, was that "the Fainers are precluded from introducing any expert testimony about the cause of the collision." As Delmarine's expert was unable to examine the Fainer boat and render an opinion as to the cause of the accident, the Fainers did not present any expert testimony as to the cause of the collision.

II. THE TRIAL

A. As to Liability

Gregory Fainer, the husband of Linda, testified that he grew up in Massapequa on the south shore of Long Island. His family owned boats since he was 8 years old. He owned a sailboat from the age of 14, which he operated on the Great South Bay. In June 2003 Gregory owned a 1990 Four Winns 205 Sundown outboard motorboat. ("Four Winns"). The craft was 20½ feet long and had a 175 horsepower Evinrude outboard motor. When the engine was brand new the boat could achieve a speed of 45 to 48 miles per hour. Photographs of the Four Winns after the collision were introduced (see Claimant's Exhs. 3A to 3J). The photographs show extensive damage to the port side of the boat toward the stern.

Gregory was an experienced boat enthusiast. He kept his boat in a canal at his Neptune Avenue home in Seaford. He used the boat 30 to 50 times a year. Gregory was very familiar with the Great South Bay for most of his life.

On the afternoon of June 9, 2003, between 2:30 and 3:00 p.m., when the sun came out, the Fainers decided to take the boat out and go to Gilgo Beach at the southern end of the Great South Bay. Gregory drove his boat with Linda as a passenger. He proceeded out of the canal near his house and made a left turn to head east in South Oyster Bay. He "cut through the flats Area" and came up to Unqua Point and entered the channel heading east. Gregory intended to make a right turn from the channel to enter the Amityville cut in a southerly direction to the Gilgo Beach area. He had previously made this trip 30 or 40 times.

The weather was sunny and clear with good visibility and a light wind. Gregory was not wearing his prescription glasses for distance, but he stated that he did not need the glasses for driving or for operating the boat. Gregory was operating the boat from the starboard (right) side standing near the captain's chair. Linda was sitting in the seat directly across from Gregory, on the port (left) side. It took him 5 to 10 minutes to traverse the canal at a speed of under 5 miles per hour. When he left the canal, Gregory increased the speed to 20 to 25 miles per hour bringing the boat up on a plane, so that the bow would be horizontal and level. He maintained that speed of 20 to 25 miles per hour until the time of the accident.

Once past the canal, there were no speed restrictions or traffic signals. As to right-of-way, the rules of the road dictated that boats ahead of him or on his starboard side had the right-of-way. He had the right of way with regard to boats on his port side. From his twenty years of boating experience, Gregory knew that he had to maintain a lookout to the front and to his starboard and port, sides. Gregory stated that, under normal circumstances, he did not have to maintain a lookout behind his craft, except when making a U-turn.

Gregory proceeded east "over the flats" to Unqua Point, at which point, "at the buoy" he entered the channel. He intended to take the channel eastbound to the Amityville cut, which would take him to Gilgo Beach. As he entered the channel, he looked to his port side and saw a few boats proceeding south in the cove, not near him and that was "nothing of concern." With regard to any boats proceeding south, he would have the right of way. At that point he still had a clear unobstructed view with regard to vessels approaching in a southerly direction from the cove. Gregory then changed his focus to look ahead and to his starboard side to the Amityville cut. He was preparing to turn right and enter the Amityville cut from the channel. Looking to the starboard, there was another boat coming north in the Amityville cut and a vessel proceeding west directly ahead of him, so that, at the time of impact, he was looking forward and to his right side.

Gregory never saw the Delmarine vessel before the impact. As he described, "I was driving, and all of a sudden I hear like a boom and I found myself in the water." (Tr at 97)^*. While in the water he spoke to Starito, the operator of the Delmarine boat, who said "he didn't see me, that, I'm sorry, I was looking down at my gauges." (Tr at 98). Starito picked him out of the water and took him to his boat.

As a result of the impact, there was extensive damage to the port side toward the stern (rear) on the Fainer craft. (See Claimant's Exhs. 3A to 3J). As to the Delmarine boat there was damage to the bow (front) (see Delmarine's Exhs. 4A to 4J). So that the point of impact in this collision was the bow of the Delmarine vessel with the port side toward the stern of the Fainer boat. (See the photographs of the Fainer boat in Appendix A, and the photographs of the Delmarine boat in Appendix B, both annexed).

When Starito drove Gregory to his boat, he saw Linda wedged into the driver's seat. She was unconscious. The Suffolk County Police Department responded in 15 to 20 minutes. Linda was still...