Petition of Trawler Snoopy, Inc.

• Decision Date: 22 May 1967
• Docket Number: No. 249.,249.
• Citation: 268 F. Supp. 951
• Parties: Petition of TRAWLER SNOOPY, INC., for Exoneration from, or Limitation of Liability as Owner of the F/V SNOOPY.
• Court: U.S. District Court — District of Maine

268 F. Supp. 951

Petition of TRAWLER SNOOPY, INC., for Exoneration from, or Limitation of Liability as Owner of the F/V SNOOPY.

No. 249.

United States District Court D. Maine, S. D.

May 22, 1967.

Philip G. Willard, Portland, Me., Eugene Underwood, New York City, for petitioner.

Nathan Greenberg, Boston, Mass., Donald A. Leadbetter, Portland, Me., Robert P. Malone, Myron Boluch, Morris D. Katz, Boston, Mass., John Evans Harrington, Bangor, Me., Bennett, Schwarz & Reef, Portland, Me., for claimants.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

On July 23, 1965 the F/V SNOOPY, while dragging for scallops off the coast of North Carolina, caught a torpedo in her port drag, exploded and sank. As a result of the explosion and sinking, eight members of her crew, including the captain, died, and the four surviving crew members sustained personal injuries. In the present proceeding, petitioner, the owner of the SNOOPY, seeks exoneration from liability or, in the alternative, limitation of liability under 46 U.S.C. §§ 183-188 (1964) (Limitation of Shipowner's Liability Act),¹ and the personal representatives of the deceased crew members and the surviving crew members have filed claims, aggregating $3,450,000, for the deaths and personal injuries resulting from the sinking. By agreement of the parties, the Court has heard the evidence and considered the written and oral arguments of counsel on the issues of liability and limitation of liability, and now makes its findings of fact and conclusions of law, and directs entry of its judgment, as follows:

At all times material hereto petitioner, Trawler Snoopy, Inc., a Maine corporation, was the owner and operator of the F/V SNOOPY, a wooden dragger, whose home port was Portland, Maine. The captain of the SNOOPY was Edward F. Doody, of Scarborough, Maine, a fishing vessel captain of many years experience.

Some time during May 1965 the SNOOPY left Portland for Cape May, New Jersey and the scallop fishing grounds off the coast of North Carolina. On July 19, 1965, the SNOOPY departed Cape May on her fourth trip to the scallop beds located approximately 45 miles east of Currituck Beach, North Carolina. On July 23, 1965, at approximately 9:15 p.m., at latitude 36°20' north, longitude 74°55' west, while the SNOOPY was in the company of about 40 other scallopers, she commenced to pull in her catch. The starboard drag had already been hauled back and was on the starboard rail, but when an attempt was made to bring the port drag aboard, it was found that a torpedo was hanging vertically by its propeller or propeller guard on either the sweep chain or a tickler on the exterior of the chain bag.² The weight of the torpedo, which has been variously described as between six and eleven feet long and about two and one-half to three feet in diameter, was such as to cause the cable to slip on the winch drum.

Captain Doody was on watch in the wheelhouse, and under his direction, an initial effort was made to lift the drag high enough to bring it aboard. The crew was unable to accomplish this because the winch could not lift the torpedo high enough to clear the rail. An attempt was then made to dislodge the torpedo by securing a line from the torpedo to a gallows stay overhead and then dropping the drag out from under it, but this effort also proved to be unsuccessful. After the failure of these attempts, Captain Doody again directed the crew to try to bring the torpedo aboard. As this was being done, the torpedo swung away from the vessel as the SNOOPY rolled in a swell, swung back, struck the rail, and exploded. Captain Doody and seven of his crew lost their lives. The four survivors were quickly rescued by other scallopers near by. The SNOOPY herself was completely destroyed.³ The efforts to free the torpedo lasted about 15 minutes.

There is no substantial dispute between the parties as to the legal principles which are applicable in a limitation proceeding such as this. The Supreme Court long ago established that the issues to be determined are "first, whether the ship or its owners are liable at all * * * and secondly, if liable, whether the owners are entitled to a limitation of liability * * *." Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U.S. 578, 595, 3 S.Ct. 379, 390, 27 L.Ed. 1038 (1883); Hartford Acc. & Indem. Co. of Hartford v. Southern Pac. Co., 273 U.S. 207, 215, 47 S.Ct. 357, 359, 71 L.Ed. 612 (1927). If no liability is found to exist, the petitioner is entitled to a decree of exoneration, and there is no need to consider the claim to limitation, for "if no liability exists there is nothing to limit." The 84-H, 296 F. 427, 431 (2d Cir. 1923); Southern Pac. Co. v. United States, 72 F.2d 212, 215 (2d Cir. 1934); United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189 (1st Cir. 1967). It is also settled that on the issue of liability the claimants have the burden of proof, while on the limitation issue the petitioner has the burden of proof. The 84-H, supra; Southern Pac. Co. v. United States, supra.

Applying these principles, the Court is compelled to conclude, upon the entire record in this case, that claimants have failed to sustain their burden of proving that the sinking resulted from any fault of the SNOOPY or its owner. Petitioner is therefore entitled to exoneration, and there is no occasion to consider its right to limitation.

In their effort to establish petitioner's liability, claimants argue that petitioner was negligent, or its vessel was unseaworthy, in three respects. Claimants first suggest that petitioner's failure to equip the SNOOPY with a spare drag both constituted negligence and rendered the vessel unseaworthy. It is undisputed that the SNOOPY had not carried a spare drag for about six months prior to the accident. However, claimants' evidence fails to establish any causal connection between the absence of a spare drag and the sinking of the SNOOPY. To support a finding that there was such a connection there should be at least some proof that Captain Doody took, or refrained from taking, some action to get rid of the torpedo because there was no spare drag. Cf. United States v. Sandra & Dennis Fishing Corp., supra at 193, n. 3. There is no such evidence here.⁴ Moreover, claimants have presented no evidence indicating that any consideration of safety required that a spare drag be carried. In fact, the record is clear that the reason why scallopers often carry a spare drag is an economic one. Every witness who testified on the point stated that the purpose of carrying a spare drag was to avoid the risk of having to abort a trip in the event a drag in use should foul on some under-water obstruction and be lost, since it is generally not profitable to continue scalloping with only one drag.⁵ No witness testified that the absence of a spare drag created any hazard for a vessel or its crew.

Although at trial claimants attempted to prove a practice among scallopers of carrying a spare drag, even if such a practice would be relevant, the evidence fell far short of establishing any uniform and general custom in this respect. Cf. Anglo-Saxon Petroleum Co., etc. v. United States, 222 F.2d 75, 77 (2d Cir. 1955), Sickelco v. Union Pac. R. R. Co., 111 F.2d 746, 748 (9th Cir. 1940). True, Captain Normand Maillet and Captain Edward Perry, both experienced scallopers, who testified as expert witnesses on behalf of claimants, stated that most scallopers carry a spare drag in order that they may continue fishing if one is lost, but this evidence was persuasively countered by that of Captain Magnus Thompsen, also an experienced scalloper, who testified as an expert witness for petitioner. Captain Thompsen stated that for about five years, since the advent of the modern all-steel welded drags of the type which were aboard the SNOOPY, it has not been customary for scallopers to carry a spare drag. Captain Thompsen explained that the reason for this is that the new drags are "too big and too clumsy and too heavy"; that it is necessary to store them on the whale-back; and that to do so involves too great a risk of injury to members of the crew working in the bow or attempting to rig one for use at sea. Captain Thompsen further testified that there is no need to carry a spare drag when scalloping in the southern waters where the SNOOPY was fishing because the bottom is smooth and relatively free of under-water obstructions.⁶

In sum, the present record abundantly establishes that the sole purpose of carrying a spare drag aboard a scalloper is economic; that whether or not one should be carried is a matter of judgment; that the need for a spare drag in the waters where the SNOOPY was fishing at the time of the accident was minimal; that the presence of a spare drag aboard the SNOOPY would have involved a substantial risk of injury to members of the crew engaged in their normal duties; that no relevant and binding custom and practice with respect to the carrying of a spare drag by scallopers has been shown; and that there was no causal connection between the absence of a spare drag and the sinking of the SNOOPY. It follows that the fact there was no spare drag aboard does not render petitioner liable.

Claimants next contend that petitioner was negligent because of its failure to warn the SNOOPY's captain and crew of the danger of picking up a torpedo in the area in which they were fishing. But to establish such negligence it is necessary for claimants to show that petitioner had actual or constructive notice that there was a risk of catching a torpedo in the waters where the SNOOPY was. Connolly v. Farrell Lines, Inc., 268 F.2d 653, 655 (1st Cir.), cert. denied, 361 U.S. 902, 80 S.Ct. 208, 4 L.Ed.2d 158 (1959); Poignant v. United States, 225 F.2d 595, 596 (2d Cir. 1955); Shannon v. Union Barge Line Corp., 194 F.2d 584, 585 (3d Cir. 1952).

No such proof is present here. The record is devoid of evidence that petitioner had any reason to suspect...