In re Wood's Petition, 9469.

• Decision Date: 31 July 1956
• Docket Number: No. 9469.,9469.
• Citation: 145 F. Supp. 848
• Parties: Petition of Glenn E. WOOD, John A. Lauck, Mary Alyce Wood, and Doris Marie Lauck, Trustees of Loc-Wood Boat & Motors, Inc., a former corporation, and Glenn E. Wood, John A. Lauck, Mary Alyce Wood and Doris Marie Lauck, as individuals, For Exoneration From or Limitation of Liability.
• Court: U.S. District Court — Western District of Missouri

145 F. Supp. 848

Petition of Glenn E. WOOD, John A. Lauck, Mary Alyce Wood, and Doris Marie Lauck, Trustees of Loc-Wood Boat & Motors, Inc., a former corporation, and Glenn E. Wood, John A. Lauck, Mary Alyce Wood and Doris Marie Lauck, as individuals, For Exoneration From or Limitation of Liability.

No. 9469.

United States District Court W. D. Missouri, W. D.

June 26, 1956.

As Amended July 31, 1956.

COPYRIGHT MATERIAL OMITTED

Edward A. Smith and Howard L. Swartzman, Kansas City, Mo., for petitioners.

Henry G. Eager and Roy P. Swanson (of Blackmar, Swanson, Midgley, Jones & Eager), Kansas City, Mo., Don W. Owensby, Buffalo, Mo., Bernard T. Schafersman (of Richards, Yost & Schafersman), Fremont, Neb., and Harold J. Swailes, Belle Plaine, Iowa, for claimants and cross-libellants, Richard Lamberty, Darwin F. Rockwell, Darrell W. Hodges, Gladys Marie Hodges, Mose Gump, Ercie Gump, Vincent H. Allen, Jr., and Carole K. Allen.

Raymond J. Carroll, Chicago, Ill., and John R. Gibson (of Morrison, Hecker, Buck, Cozad & Rogers), Kansas City, Mo., for claimants and cross-libellants, Helen Fahey, Adm'x, of estate of Thomas P. Fahey, Jr., and Joseph Buckley, Adm'r of estate of Dorothy Fahey.

DUNCAN, Chief Judge.

This is a suit in Admiralty under the provisions of 46 U.S.C.A. §§ 183-189, by the trustees of the Loc-Wood Boat & Motors, Inc., of Lake Ozark, Missouri, the owner of a sight-seeing vessel known as the Grand Glaize for exoneration from liability, or, in the alternative, for limitation of liability to the value of the vessel, as a result of the overturning and capsizing of said vessel on the Lake of the Ozarks near Bagnell Dam on May 28, 1954.

The petition was filed in this court pursuant to Rules 51 and 54, Rules of Practice in Admiralty and Maritime cases promulgated by the United States Supreme Court, 28 U.S.C.A. Prior to the filing of this petition, several suits were instituted against the petitioners in the Circuit Court of Jackson County, Missouri, at Independence, for the wrongful death of certain passengers who were drowned.

Subsequent to the filing of this petition, this court issued a "Writ of Monition" under Rule 51 by publication, directing all persons having claims arising out of the capsizing of the Grand Glaize on the above date, to file such claims with the Clerk of this Court. This court also issued a Restraining Order under Rule 51, restraining the further prosecution of such suits in the State Court.

The petition alleges that on May 28, 1954, the Grand Glaize was "by reason of a sudden and violent tornado and heavy wind, overturned and capsized * * *", resulting in the death of the following passengers:

Warren Lamberty Mrs. Letha E. Rockwell Rosalyne Ruth Rockwell Alice Lamberty Duane Wilbur Hodges Patricia Gump

The petition further alleges that the deaths above mentioned occurred without the privity or knowledge of the petitioners. Pursuant to the above order of this court, the following claims were filed in this proceeding:

(a) Lt. Vincent H. Allen, Jr., has filed a claim for the amount of $3,500 for the loss of personal property and for medical expenses, present and future, necessary for his wife, Carole K. Allen, as a result of her personal injuries and for loss of services.

(b) Carole K. Allen claims the amount of $5,035 for the loss of personal property, and for personal injuries.

(c) Mose Gump and Ercie Gump claim the sum of $25,000 for the wrongful death of their minor unmarried daughter, Patricia Gump, by suffocation or drowning.

(d) Darrell W. Hodges and Gladys Marie Hodges claim the sum of $25,000 for the wrongful death of their minor unmarried son, Duane Wilbur Hodges by suffocation or drowning.

(e) Darwin F. Rockwell claims the sum of $50,000 for the wrongful death of his wife, Letha E. Rockwell, and the sum of $25,000 for the wrongful death of Rosalyne Rockwell, the minor daughter of Darwin F. Rockwell and Letha E. Rockwell, both deaths having occurred either by suffocation or drowning.

(f) Richard Lamberty claims the sum of $50,000 for the wrongful death of his wife, Alice Mae Lamberty, and the sum of $25,000 for the wrongful death of Warren Richard Lamberty, the infant son of the said Richard Lamberty and Alice Mae Lamberty, both deaths having occurred either by suffocation or by drowning.

(g) Ruth E. O'Leary claims the sum of $5,000 for personal injuries sustained, and for the loss of personal property.

(h) Emmett D. O'Leary claims the sum of $5,397 for personal injuries sustained, and for the loss of personal property.

(i) Helen Fahey, Administratrix of the Estate of Thomas P. Fahey, Jr., deceased, claims the sum of $50,000 for the wrongful death of the said Thomas P. Fahey, Jr., said death having occurred either by suffocation or drowning.

(j) Joseph Buckley, Administrator of the estate of Dorothy Fahey, deceased, claims the sum of $50,000 for the wrongful death of the said Dorothy Fahey, said death having occurred either by suffocation or drowning.

The claimants also filed what they designated "Cross Libels" which, following the close of the trial of the case, the claimants have asked leave to dismiss or withdraw as being surplusage, and that leave is hereby granted.

Sometime prior to May 28, 1954, the corporate charter of Loc-Wood Boat & Motors, Inc., was forfeited by the State of Missouri for failure to comply with the statute with respect to filing annual reports, but subsequent to the above date, the charter was reinstated, and it is now admitted by the claimants that the corporation was in existence at the time of the capsizing of the boat, and was and is, the real owner thereof.

It is further agreed that the claims as to the petitioners Glenn E. Wood, John A. Lauck, Mary Alyce Wood and Doris Marie Lauck, as trustees of Loc-Wood Boat & Motors, Inc., should be dismissed, and that Loc-Wood Boat & Motors, Inc., a corporation, be substituted in their stead. In accordance with that suggestion, the action is hereby dismissed as to the individual petitioners, and the petition will be considered against the corporation as the owner of the vessel.

The law applicable to this case is not in dispute, and we are confronted wholly with the factual situation as to whether or not there should be an exoneration or limitation of liability. § 183, Title 46 U.S.C.A. provides as follows:

"The liability of the owner of any vessel, whether American or foreign, for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."

In their answers, the claimants deny that the petitioners are entitled to exoneration or limitation of liability under Title 46 U.S.C.A. §§ 183-189 as aforesaid, and they allege that the vessel Grand Glaize overturned and capsized as a direct and proximate result of the negligent acts, defaults and failures on the part of the petitioner, the owner of the vessel, and on the part of its servants and representatives, and that such acts occurred within the knowledge and privity of the petitioner, owner and operator thereof. The specific acts charged are that:

"(a) The said vessel was not properly or competently manned, operated, piloted, supervised, managed, regulated or directed.

"(b) The said vessel was not properly or adequately equipped or maintained for inclement weather including conditions of wind, rain and high waves.

"(c) The said vessel was not seaworthy.

"(d) The said vessel was not properly equipped or supplied for the safety of its passengers in the event of maritime accident or disaster.

"(e) The said vessel was permitted, suffered, ordered and directed to leave the said docking facilities at a time when an approaching frontal condition of wind, rain and high waves either was or should have been observed over and upon the lake to the westward.

"(f) They failed to learn about or to obey and to rely upon published weather forecasts of storm and tornado condition at a time when they either knew or should have known of the existence of said forecasts and the maritime dangers incidental to such weather condition.

"(g) They failed to warn or to notify any of the passengers for hire before the said vessel left the dock that storm and tornado conditions or wind, rain and high waves either then and there existed or were expected to exist shortly thereafter upon and over the lake to the westward.

"(h) Despite ample time therefor, they failed to control, to pilot or to steer the said vessel after it had left the dock and was operating under its own motive power upon the surface of the lake so as to avoid and to by-pass completely the frontal condition of wind, rain and high waves after said condition either was or should have been observed by the pilot.

"(i) They continued to operate, to pilot or to steer the said vessel straight ahead and generally westward into the frontal condition of wind, rain, and high waves after said condition either was or should have been observed by the pilot and at a time when the said vessel could have been directed and taken into protecting coves and bays along and near the shoreline of said lake.

"(j) Despite ample time and opportunity therefor they failed to turn the said vessel around and to return or commence to return it to the dock before the said vessel reached and entered into the frontal condition of wind, rain and high waves and at a time when said condition was visible ahead of the said vessel and upon and over the surface of the lake.

"(k) They failed to keep the bow of the said vessel pointed or headed straight into the frontal condition of wind, rain and

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