Kulack v. The Pearl Jack

• Decision Date: 02 September 1948
• Docket Number: No. 1628½,1629,1628½
• Citation: 79 F. Supp. 802
• Parties: KULACK v. THE PEARL JACK et al. KLARIC v. BARRON et al. CIOHON v. THE PEARL JACK et al.
• Court: U.S. District Court — Western District of Michigan

79 F. Supp. 802

KULACK v.THE PEARL JACK et al.

KLARIC v.BARRON et al.

CIOHON v.THE PEARL JACK et al.

Nos. 1628½, 1629, 1628.

United States District Court W. D. Michigan, S. D.

September 2, 1948.

Irving D. Bloom and Bloom & Bloom, all of Chicago, Ill., and Clifford A. Mitts and Mitts & Smith, all of Grand Rapids, Mich., for libelants Kulack and Ciohon.

Leo W. Hoffman, of Allegan, Mich., for libelant Klaric.

Irving S. Toplon and Theodore E. Rein, both of Chicago, Ill., and John L. Wierengo and Varnum, Riddering, Wierengo & Christenson, all of Grand Rapids, Mich., for respondentFrank A. Denison.

Fred T. Miles, of Holland, Mich., and Frederick T. Miles, of Coopersville, Mich., for respondentsJohn Barron, Sr., and John Barron, Jr.

STARR, District Judge.

In July, 1945, the Pearl Jack, a Chriscraft speed boat owned by respondentFrank A. Denison, was being operated upon the navigable waters of the Kalamazoo river and Lake Michigan as a duly licensed common carrier of passengers for hire.On July 30th of that year, at about 8:30 in the evening, this boat, then in charge of respondentJohn T. Barron, Jr., a licensed pilot, left the pavilion dock in the village of Saugatuck, with the three above-named libelants and others as passengers, for a pleasure ride on the river and lake.When the boat was a short distance from the dock, and when Barron, Jr., attempted to start the engine, or immediately after he started it, an explosion and fire occurred.The three libelants, who were sitting in the rear cockpit, were severely burned, requiring medical care and hospitalization.

On November 21, 1946, Bernice Pump Kulack and Marjorie K. Ciohon each filed a libel in admiralty, alleging that at the time of the accident the Pearl Jack was owned by respondentsJohn T. Barron, Sr., and Frank A. Denison; that they were engaged in the operation of the boat as a joint venture; and that they had employed respondentJohn T. Barron, Jr., to operate it.They alleged that the respondents were negligent in failing to properly inspect the boat, in failing to have the motor compartment equipped with proper vents, in failing to inspect and keep the motor and starter in good repair, and in failing to discover the presence of gasoline fumes in the motor compartment.Libelant Kulack claimed damages of $50,000 and libelant Ciohon damages of $10,000.Barron, Sr., answered, denying liability on the ground that he had no interest in the boat; that he was not operating it as a joint venture with respondent Denison; and that Barron, Jr., was not employed to operate it.Barron, Jr,. answered, alleging that the boat was owned by respondent Denison and that he and Denison were engaged in its operation as copartners.He denied the charges of negligence and also denied that his father, Barron, Sr., had any interest in the boat or was engaged in a joint venture with Denison.Denison answered, admitting that at the time of the accident he owned the boat.However, he denied liability to libelants and all charges of negligence on the part of himself and Barron, Jr.He alleged that the accident occurred without his privity or knowledge and claimed that under 46 U.S.C.A. § 183 et seq., his liability, if any, should be limited to the value of the boat after the accident.

On September 6, 1946, libelant Frances Klaric began a law action against respondents in the circuit court for Allegan county, Michigan, claiming damages of $15,000 and alleging that Barron, Sr., and Denison owned and operated the Pearl Jack as copartners.She also alleged negligence on the part of respondents in failing to properly inspect the boat, its motor, gasoline tanks, and equipment; that the port gasoline tank leaked; and that when the engine was started, accumulated gasoline fumes were ignited, causing an explosion and fire.The respondents answered, denying liability.An order was subsequently entered in circuit court removing the Klaric law action to this court.

On May 19, 1947, Denison filed petition in pursuance of 46 U.S.C.A. § 183 et seq., for limitation of his liability to the value of the Pearl Jack after the accident.In his petition Denison alleged that he was the sole owner of the boat; he denied the charges of negligence and alleged that the explosion and fire occurred without his privity or knowledge.He alleged that the value of the boat after the accident did not exceed $1,500 and that the claims against him and the other respondents exceeded this amount.He asked that a writ of monition issue against libelants Kulack, Ciohon, and Klaric citing them to appear and make proof of their respective claims.In pursuance of this petition a writ of monition was issued and was duly published and served upon each of the libelants, who answered, denying that Denison was entitled to have his liability limited.

As these three cases arose out of the same accident and involved the same issues, they were consolidated for hearing on Denison's petition for limitation of liability and for trial on the merits.The first question to be determined is whether or not respondent Denison's petition should be granted.46 U.S.C.A. § 183, provides in part:

"(a) The liability of the owner of any vessel, whether American or foreign, * * * 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 * * * exceed the amount or value of the interest of such owner in such vessel, and her freight then pending. * * *

"(e) In respect of loss of life or bodily injury the privity or knowledge of the master of a seagoing vessel or of the superintendent or managing agent of the owner thereof, at or prior to the commencement of each voyage, shall be deemed conclusively the privity or knowledge of the owner of such vessel."

The Pearl Jack was a "vessel" within the meaning of that term as used in the above statute.46 U.S.C.A. § 188;Grays Landing Ferry Co. v. Stone, 3 Cir., 46 F.2d 394;The Linseed King, D.C., 24 F.2d 967, 975;The Trim Too, D.C., 39 F. Supp. 271;Petition of Liebler, D.C., 19 F. Supp. 829.

Respondent Denison, who was experienced in the operation of motor boats, bought the Pearl Jack, a Chris-craft speed boat 28 feet in length, in May, 1945.It had been built in 1931, and about 1938 a new 150-horse-power gasoline marine engine had been installed in it.The engine compartment was enclosed with wooden hatches which opened outward.There were two seats forward and one three-passenger seat aft of the engine compartment, and the bilge of the boat between the engine compartment and the rear seat was covered with floor boards.The boat was equipped with two 40-gallon gasoline tanks immediately back of the rear seat.

At the time of the accident Barron, Jr., who was also experienced in the operation of motor boats, owned a speed boat known as the Bonnie B.The evidence established that respondents Denison and Barron, Jr., had entered into an arrangement to operate their speed boats as copartners in the business of carrying passengers for hire.This arrangement was clearly indicated by the fact that, as copartners, they executed a written lease for boat dockage space in Saugatuck, and also by the fact that they opened a joint bank account under the name of "Denison & Barron" and both drew checks on it in connection with their boat operations.They used their speed boats in the carrying of passengers until about July 19th, when Denison left Saugatuck on a vacation trip, leaving his boat, the Pearl Jack, in the possession and care of Barron, Jr.Thereafter during Denison's absence Barron, Jr., operated the two boats alternately on trips with passengers.It is clear that during Denison's absence Barron, Jr., was acting not only as his copartner but also as his agent in connection with the operation of the Pearl Jack.Denison did not return to Saugatuck until July 31st, the day following the accident.

On the afternoon of July 30th Barron, Jr., made trips with his boat, the Bonnie B, and also with Denison's boat, the Pearl Jack.He returned the Pearl Jack to the pavilion dock at Saugatuck at about five o'clock in the afternoon and then made a trip with the Bonnie B.At about 8:30 in the evening he prepared to take the three libelants and other passengers on a trip in the Pearl Jack, which had been tied at the pavilion dock with its engine hatches closed.It should be noted that in preparing to start on this trip, Barron, Jr., did not open the hatches to ventilate the engine compartment and diffuse any accumulated gasoline fumes, a precaution which is recognized as necessary before starting the engine in a boat of this type.

The testimony is conflicting as to whether the explosion and fire occurred when Barron, Jr., attempted to start the engine or immediately after it had been started.In any event, when the boat was a short distance from the pavilion dock, an explosion and fire occurred.Barron, Jr., testified:

"I heard this noise, that was like a puff, * * * and the engine stopped and I looked around and there were flames coming out of the engine compartment.* * * I * * * emptied the contents of the fire extinguisher in and around the rear cockpit.* * * I couldn't really see any flames; but I figure that if there were any flames there, why, the fluid would run down through the cracks in the floor boards and alongside of the cushions and into the bilge, and it might extinguish anything that might be down there.* * * Then I opened the engine hatches.* * * There was quite a bit of smoke, and most of the wiring was smoldering.* * * The paint was blistered * * * on the engine hatch covers * * * on the inside.

"Q.What about the rear cockpit?* * * A.Well, it showed scorch marks * * * right at the back of the seat, on one side. * * *

"There was a flash, I wouldn't actually call it a fire; I would just call it a flash fire. * * *

"Q.Wasn't...