Merrill Trust Co. v. Bradford

• Decision Date: 05 December 1974
• Docket Number: No. 74-1296,74-1296
• Citation: 507 F.2d 467,1974 A.M.C. 2582
• Parties: MERRILL TRUST COMPANY, Executor of the Estates of Dean W. Footman and Priscilla L. Footman, Plaintiff-Appellant, v. Merrill BRADFORD, Executor of the Estates of Charles D. Meyer and Sandra W. Meyer, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 467

507 F.2d 467

MERRILL TRUST COMPANY, Executor of the Estates of Dean W Footman and Priscilla L. Footman, Plaintiff-Appellant, v. Merrill BRADFORD, Executor of the Estates of Charles D Meyer and Sandra W. Meyer, Defendant-Appellee.

No. 74-1296.

United States Court of Appeals, First Circuit.

Argued Nov. 5, 1974.

Decided Dec. 5, 1974.

U. Charles Remmel, II, Portland, Me., with whom David P. Cluchey and Thompson, Willard & McNaboe, Portland, Me., were on brief, for plaintiff-appellant.

William W. Willard, Portland, Me., with whom Herbert H. Sawyer, Bernstein, Shur, Sawyer & Nelson, Portland, Me., John L. Quinlan, James S. McMahon, Jr., and Bigham, Englar, Jones & Houston, New York City, were on brief, for defendant-appellee.

Before COFFIN, Chief Judge, ALDRICH, and CAMPBELL, Circuit Judges.

ALDRICH, Senior Circuit Judge.

Little purpose would be serbed in detailing the facts preceding the unfortunate stranding, in the middle of a rainy, foggy night in May, 1970, of the 30-foot ketch, Thalassa, on the westerly side of Lobster Point, near the southwesterly end of Monhegan Island, Maine. The yacht was bound in a general northeasterly direction on an outside run from Plymouth, Massachusetts into Penobscot Bay, a course which led directly by Monhegan, and hence to its home port of Camden. The wind was southwest, 15-25 knots; the seas were about four feet, and there were no survivors. At the point of impact, and generally, Monhegan has a bold shore, and by morning, when the wreck was discovered stern to the shore, the fiberglass hull was separated from the keel and broken, except to leave erect and out of water the mast which was still carrying the mainsail. The bodies of all who had been aboard were found nearby.

This action was brought by the representative of the estates of Mr. and Mrs. Footman, guests aboard, against the estates of Mr. and Mrs. Meyer, the true and registered owners, respectively. The vessel was well found, and there is no claim of unseaworthiness. The district court dismissed the complaint, after a full opinion, because of a failure to find negligence on the part of either Meyer.

Plaintiff argues that since the case was tried mainly on depositions, the 'clearly erroneous' provision of F.R.Civ.P. 52(a) does not apply. That is not so, at least in this circuit. Custom Paper Products Co. v. Atlantic Paper Box Co., 1 Cir., 1972, 469 F.2d 178; cf. C. A. Wright, Law of Federal Courts, 2d ed. 1970, pp. 430-31. However, plaintiff has a better claim. We construe the court's statement that 'upon the entire record (it) is compelled to conclude that plaintiff has failed to establish its burden of proof that the sinking of the Thalassa and the Footmans' deaths resulted from any negligence of the Mayers' as in part, after making certain findings we will refer to, a ruling of evidentiary insufficiency, not a choice between permissible conflicting conclusions. We consider the appeal on that basis. However, we affirm.

While the evidence warrants, and indeed perhaps compels a finding that Mr. Meyer, hereinafter Meyer, as owner and master aboard, had ultimate authority, it correspondingly requires a finding that Mr. Footman, hereinafter Footman, was a fellow yacht-owner and close friend whose judgment Meyer fully respected. Much of the brief is devoted to the decision to make the outside run, and whether it was by common consent. Although a Camden native spoke of Meyer and Footman only as 'about average weekend sailors,' they had taken such trips before and we have no reason to fault the district court's failure to find negligence, whoever made the decision. But we add that plaintiff's contention that Meyer, as owner-master, had the ultimate power of decision, and could even put the Footmans ashore, proves too much. The Footmans, unlike seamen who were under contract and earning their living, were equally free to go ashore if they did not concur. Absent some special circumstances, the concept that a yachting party can embark on a trip and then sue the owner because it was a risky undertaking does not appeal to us. This is not to say that in the case of an uninformed guest there might not be a duty to disclose the possible risks, so that there could be a free choice. No such question could arise here as to either Footman. The court found that 'since their marriage in 1958, Dean and Priscilla Footman had spent a great deal of time sailing . . .. Both had taken and passed the Power Squadron courses in piloting, seamanship and advanced piloting, had participated in several overnight ocean races . . .. Both were competent to navigate, and both had at least some experience with night sailing and with stormy and foggy conditions.' On this record it cannot be thought that either Footman was not fully aware of the normal hazards of the voyage, hazards which might lead to an accidnet regardless of fault. Our interest, accordingly, must be in whether these risks were increased by subsequent negligence, and if so, by whom. The difficulty here is, there is no answer.

First, the possible errors. The basic one, of course, was a misjudgment of their position. The vessel was equipped with a Kenyon log. No one testified to it, but for what it was worth it may be suggested that the long continued southwest wind produced a forward set that, of course, the log failed to register and that the navigator, or navigators, failed to take into account. But, equally, we would take judicial notice that dead reckoning, with winds, tidal currents, and the difficulty of steering a small boat on a precise course, is not in any case an exact science. The more chargeable neglect may be sought in the failure to discover that the vessel was not where they believed themselves to be.

Manana Island, immediately westward of Monhegan, has a foghorn, which the evidence shows was operating. However, it was downwind. The Coast Pilot and other authorities recite that freakish things may happen to sound, and that there may not only be misleading direction, but areas of occlusion. It cannot be said with any confidence that there was actionable error here.

Secondly, the vessel possessed a radio direction finder (RDF), which was recovered in a turned-on condition. Plaintiff's expert testified that by cross bearings on Manana and other radio beacon stations a fix could have been obtained. Some members of the panel are tempted to question the dependability of this fix, partly because of the nature of RDF's, but more because of the unfavorable conditions: a small boat, a following wind and a considerable sea. However, we will accept plaintiff's contention that the operator of the finder may have been in some manner negligent.

It may also be suggested that whoever was in charge of the fathometer was negligent, although in possible extenuation of that individual we note depths of over 200 feet to within a few hundred yards of the shore, and very considerable depths almost to the last moment.

Continuing, there was, presumably, a watch. Plaintiff's expert suggested the vessel hit the shore head on. The night must have been dark-- by two stopped watches it was one o'clock-- and with inattention by the lookout, the other parties being properly occupied elsewhere, this may have been possible. ¹

Without further speculation, this leaves several duties possibly ill performed. But not only do we not know which, we do not know who was performing them.

The court warrantably found that it was understood before the commencement of the voyage that 'the responsibility for navigation and management of the vessel would be shared.' The parties dispute the meaning the court attributed to the word 'responsibility,' but at a minimum, having in mind that on a voyage of this length ² there must be watches, there must be periods where the owner, whatever may be his ultimate legal responsibility, was not the individual in actual charge. Plaintiff's contention that the Footmans were restricted to the 'handling of sails and lines' and were never 'in a position to issue orders,' (viz., in temporary command) is unsupported by the record, and is against common sense.

In addition to this physical fact, it appeared that Meyer had particular confidence in Footman's navigational ability. Even if all hands were alerted because of what may have been thought to be a crucial problem of avoiding Monhegan, Footman may well have been the one operating the radio direction finder and, it being dark and rainy, doing piloting calculations, below. The evidence shows that while the...