Petition of Liebler, 2020.

Citation19 F. Supp. 829
Decision Date11 June 1937
Docket NumberNo. 2020.,2020.
PartiesPetition of LIEBLER. THE FRANCESCA.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York

Flynn, Tillou & Ward, of Buffalo, N. Y., for claimant.

Rann, Brown, Sturtevant & Kelly, of Buffalo, N. Y., and Harry A. Kulowski, of Lancaster, N. Y. (Arthur E. Otten, of Buffalo, N. Y., of counsel), for petitioner.

KNIGHT, District Judge.

This matter comes on by the petition of Bertha M. Liebler for exoneration from or limitation of her liability as owner of the motorboat Francesca for an accident which occurred on July 12, 1936, and resulted in personal injuries to one Frances Peterson resulting in her death.

On the date mentioned, Frances Peterson, a girl of the age of fourteen years, was in bathing with a young man named Walker at a location in Lake Erie known herein as Wanakah Beach, situated in comparative proximity to the City of Buffalo, in this Western District of New York. The motorboat Francesca operated by Charles Liebler, husband of petitioner, was then cruising about in the vicinity of these bathers. It is not denied that Liebler stopped his boat and invited or permitted the bathers to climb aboard on the forward deck. The girl sat immediately in front of the windshield on the left side, and the young man farther forward on the right side of the deck. The boat then proceeded in a circuitous direction. Shortly after starting up, the girl either fell off or slid off into the water, went under the boat, and was badly cut by the propeller. She sustained injuries from which she died. It is undenied that the petitioner was the owner of the Francesca; that she was present in the boat at the time of this accident, sitting immediately back of her husband; that she was in a position to see what transpired in taking this girl on and the operation of the boat; and that four guests of husband and wife were on the boat, including a child.

The first question to decide is whether the operator of the boat is guilty of negligence and whether there was any approximate connection between such negligence and the injuries aforesaid. It is the claim of the petitioner that when the boat was in the vicinity in question Charles Liebler saw the two bathers and, in the belief that they were in distress, swung the boat and went up to them to pick them up; that both bathers climbed onto the forward deck unassisted; that the girl seated herself on the deck and held onto the windshield with the left hand and to the headlight with her right hand; that the bathers then were something like 600 feet from shore and in deep water; that immediately thereafter Liebler started and turned the boat to the left, and then swung to the right toward deeper water in order to line the vessel up to come in closer toward the shore to let the bathers off from the boat; that while the boat was on this turn to the right the girl slid off from the deck into the lake; that the boat was then not making a sharp turn; and that it was proceeding at a slow rate of speed.

This testimony of Liebler is substantially corroborated by petitioner and other occupants of the boat. On the other hand, testimony on behalf of the claimant is that these bathers were in no distress; that there was no necessity for taking them aboard the boat; that they were voluntarily taken on in order to give them a ride; that they were taken on at a point in the lake of comparatively few feet in depth; that the girl was an excellent swimmer; that immediately preceding this Liebler had been propelling the boat at high rate of speed, and, immediately following the taking of the swimmers on deck, he swung sharply to the left and began circling around at a high rate of speed; that the girl was thrown off as a result of the speed and the curve.

The weight of the evidence supports the conclusion that the operator was negligent. The operator was a man grown. The girl was of tender age. She was permitted to sit on a deck which the evidence shows was crowned and smooth. He was an experienced speed boat operator. He assumedly knew the danger to one on the forward deck from the quick turning of a boat. He could have located her in a safe place at the rear deck. It seems under all these circumstances it was the duty of the operator of the boat to exercise strict care to see that the girl was in a safe place. He did not do this. It makes no difference whether the operator had believed the swimmers to be in distress, whether they invited a ride, or whether he suggested their riding, having gotten her aboard in this position it was his duty to use the care stated. Further, I am satisfied from the evidence that immediately following the taking of the girl aboard the operator began to and did proceed at a high rate of speed, and then when the boat was being turned the girl was thrown off from the deck. The suggestion of petitioner that the girl voluntarily slid off from the deck finds no support. Had she done this, she doubtless would not have gone under the propeller. The mangled condition of her body resulting from the striking of the propeller is further evidence of the speed at which the boat was then being propelled.

Disinterested witnesses describe the maneuvering of the boat and the location of these transactions. There are corroborating circumstances and certain material contradictions in the testimony of the petitioner's witnesses to further support the conclusion that the operator of the vessel was negligent. As against the testimony of those in the boat, the court accepts the testimony of such witnesses upon the main questions and that a causative connection existed between such negligence and the injury complained of.

The next question is whether the petitioner is responsible or liable for the conduct of the operator of the vessel. It is uncontradicted that the operator, husband of petitioner, had carte blanche authority from the owner to use the boat when and where he liked. It is uncontradicted that on this occasion the husband was operating the boat; that the petitioner was in the boat, sitting immediately back of her husband; and that it was being operated for the joint pleasure of husband and wife and guests. Under such a set of circumstances, it is my opinion that the operator acted as the agent of the petitioner and that the petitioner is liable as a principal. There was nothing to prevent petitioner from preventing or protesting against taking on of these swimmers. There was nothing to prevent petitioner directing that the swimmers be placed in a safe place in the boat. There was nothing to prevent the owner from giving directions regarding the operation of the boat as to its speed and movements. The operator was subject to the control of the petitioner. She did not assert this ownership. Under these circumstances, the law placed the liability upon her for the negligence of the operator.

While no comparable case is called to my attention, it seems to me that the familiar rule of liability of principal for the act of an agent as regards negligence is applicable here. Numerous cases are called to the attention of the court in which, in effect, it has been held in the operation of automobiles that where the owner is present in the automobile and has the right to command the operation, he is liable for the acts of the operator. Von Blaricom v. Dodgson, 220 N.Y. 111, 115 N.E. 443, L.R.A.1917F, 363; De Carvalho v. Brunner, 223 N.Y. 284, 119 N.E. 563; Duffy v. Ascher, 191 App.Div. 918, 181 N.Y.S. 934. The opinions in these cases are important as pointing the reason for the rule. The evidence supports the conclusion that the vessel in question was being operated in and about the business of the petitioner with her knowledge and consent and within her control and command. This is not a case in which the principal was not present. Mere presence alone, however, might not in all circumstances be sufficient to charge the owner with liability. But here ample opportunity was given the owner to direct the operator and prevent injury. Lack of knowledge of operation is not material.

The petitioner cites several cases, but each in its facts is distinguishable from the one at bar. The Del Norte (D.C.) 111 F. 542, was a case in which the question of the liability of a charterer of a boat was involved. In The Fort Bragg (D.C.) 6 F.Supp. 13, the petitioner was the charterer pro hac vice. In Somes v. White, 65 Me. 542, 20 Am.Rep. 718, it was held that where the master is owner pro hac vice no relation of principal and agent exists. From these cases it will be seen that control and possession were in another than the owner.

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