Slobodna Plovidba v. King

• Decision Date: 20 June 1988
• Docket Number: No. M86-209 CA 3.,M86-209 CA 3.
• Citation: 688 F. Supp. 1226
• Parties: In the Matter of the Petition of SLOBODNA PLOVIDBA, an agency of the Government of Yugoslavia, as owners of the M/V JABLANICA for Exoneration from or Limitation of Liability, Plaintiff, v. Cathy S. KING, Personal Representative of the Estate of Russell King, Deceased; Dorothy M. Perkins, Personal Representative of the Estate of Edward M. Perkins, Deceased; and Marlene K. Peterson, Personal Representative of the Estate of Kirk Peterson, Deceased, Defendants.
• Court: U.S. District Court — Western District of Michigan

688 F. Supp. 1226

In the Matter of the Petition of SLOBODNA PLOVIDBA, an agency of the Government of Yugoslavia, as owners of the M/V JABLANICA for Exoneration from or Limitation of Liability, Plaintiff, v. Cathy S. KING, Personal Representative of the Estate of Russell King, Deceased; Dorothy M. Perkins, Personal Representative of the Estate of Edward M. Perkins, Deceased; and Marlene K. Peterson, Personal Representative of the Estate of Kirk Peterson, Deceased, Defendants.

No. M86-209 CA 3.

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

June 7, 1988.

As Corrected June 20, 1988.

Leonard C. Jaques of The Jaques Admiralty Law Firm, P.C., Detroit, Mich., for plaintiff.

William M. Kimball, New York City, and Robert N. Dunn, Tribler and Marwedel, Chicago, Ill., for defendants.

OPINION

HILLMAN, Chief Judge.

On August 20, 1986, at approximately 11:21 (Eastern Daylight Time), a collision occurred on northern Lake Michigan between the vessels Jablanica and the Razal Brothers. The Razal Brothers, a fishing boat, capsized and sank. Its three occupants drowned. There were no injuries aboard the Jablanica.

On August 25, 1986, petitioner, Slobodna Plovidba, an agency of the Government of Yugoslavia and the owner of the Jablanica, filed a petition pursuant to 46 U.S.C.App. § 181 et seq. seeking exoneration from and limitation of liability for the sinking of the Razal Brothers and the deaths of its captain and crew. Cathy King, Dorothy Perkins, and Marlene Peterson, as the personal representatives of the estates of the three drowned fishermen (claimants), filed claims against petitioner on December 29, 1986. On September 1, 1987, petitioner filed counterclaims against claimants. Claimants subsequently filed a motion to dismiss petitioner's counterclaims pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.

On March 17, 1988, I filed an opinion and order granting the motion with respect to crewmen King and Peterson, and granting it in part and denying it in part as it pertained to Captain Perkins.

A two and one-half day bench trial on the remaining negligence claims commenced on March 28, 1988. The court heard eight witnesses and admitted eleven exhibits.

The testimony of the witnesses was largely on the subject of damages. The evidence relating to the collision itself came almost exclusively from the exhibits, specifically: the depositions of Captain Seman and Third Mate Emil Grubelic of the Jablanica; a Coast Guard interview of the Jablanica's pilot Kenneth Gumtow; the Coast Guard Report dated January 20, 1987; and the findings of fact from the decision and order entered by an administrative law judge following a hearing on the possible revocation of Pilot Gumtow's license. The conclusions of law of the administrative law judge were not offered nor made available in any way to the court.

With the exception of some pertinent background information provided by the families of the deceased seamen, I have relied almost entirely on the Coast Guard Report and the depositions of Pilot Gumtow and Captain Seman in making my findings of fact. I have given little weight to the deposition of the third mate as it is, as a result of language barriers, almost unintelligible. I have also given no weight to the administrative law judge's findings of fact. Submitted by petitioner, the findings are based largely on an "agreed statement of fact" which, although referred to, is neither incorporated into the findings nor attached to them. Thus, the findings are meaningless to the court. In contrast, the Coast Guard Report makes no reference to any unattached "agreed facts." Furthermore, it contains no conclusions of fault or blame. Therefore, I have given it significant weight.

The court's admiralty jurisdiction, which is based on 28 U.S.C. § 1331, is uncontested. Having heard the evidence, studied the exhibits, and listened to arguments of counsel, the following constitute the court's findings of fact and conclusions of law. Fed.R.Civ.P. 52(a).

I. Findings of Fact

The decedents, Edward Perkins, Russell King, and Kirk Peterson were commercial fishermen licensed in the state of Michigan to undertake gill-net fishing on the Great Lakes. Perkins and King both lived in Naubinway, Michigan, a small fishing community near Manistique. Peterson lived with his parents in Manistique.

Captain Perkins, who was 46 years old at the time of the collision, married claimant Dorothy Perkins on July 13, 1975. Perkins had one son, Matthew, born in 1968. In addition, Dorothy had three children from a previous marriage. Two of the Perkins' four children were living with them at the time of the accident. Perkins was a third generation gill-net fisherman. However, his experience on the Great Lakes was not limited to fishing. Prior to becoming a full-time fisherman, he worked as a tug captain for Capital Dredging.

Russell King was 31 years old when he died. He and his wife, claimant Cathy King, were the parents of two children, Bobby Jo, now 13, and Greg, now nearly 10. King's first adult experience with fishing was as a "fisherman's helper" for Perkins who, at the time, operated a fishing business with another individual. Prior to working for Perkins, King was employed at a tool and die plant near Detroit and by an excavating company owned by his father-in-law. He also worked for the Mackinac County Road Commission for a time.

In 1983, Perkins and King decided to go into the fishing business together. They formed "E & R Fisheries, Inc." Through this corporation they purchased their boat, the "Razal Brothers." Each was a 50 percent owner of the corporation. According to the testimony at trial, Perkins and King had a good working and personal relationship. Generally they hired between one and four fisherman's helpers to work with them on their boat. Sometimes they docked the Razal Brothers at Naubinway and sometimes at Manistique. When they docked at Naubinway, the men generally left home by 6:00 a.m. When they docked the vessel in Manistique, they began their day several hours earlier. On the morning of the accident, they set out from Manistique to lift and reset their nets. Perkins and King had one fisherman's helper with them, Kirk Peterson.

Twenty-seven-year-old Peterson was unmarried at the time of his death. After completing high school, he did a hitch in the Navy. He then worked for a commercial fisherman in Ludington. In the spring of 1986 he returned to Manistique, where his parents lived, and began working for Perkins and King.

The Razal Brothers typified vessels used for gill-net fishing on the Great Lakes. Built in 1949, the vessel was approximately 39 feet long. Its gross weight was 20 tons. An enclosed deck house covered its full length to facilitate year around fishing. On the port side, the Razal Brothers had two doors, one about one-third and one about two-thirds of the vessel's length aft of the stem. A porthole was located approximately mid-ship on the port side. On the starboard side there were no doors or portholes located on the forward half of the ship. However, there was a porthole mid-ship and the door that mirrored the door on the port side. The pilot house was located aft and was raised approximately eighteen inches. The steering station was located in the port forward corner of the raised area. There was a porthole at the steering station. A mirror image porthole was located on the starboard side of the raised area. Three rectangular areas provided forward vision from the raised area. A large door in the transom allowed aft vision. There was a porthole in that door. The Razal Brothers carried a VHF radio, radar, an auto-pilot mechanism, two fathometers, two Loran C receivers, and a magnetic compass. The auto-pilot used an independent magnet to maintain the desired course. A mechanical clutch located below the helm engaged and disengaged the auto-pilot mechanism from the normal steering mechanism.

The Jablanica is typical of modern, dry-bulk cargo vessels. Its superstructure is all aft. Built in 1979 in Split, Yugoslavia, it is approximately 622 feet in length and weighs 17,996 gross tons. Its bow is conventional and the stem is plumb from the baseline to a height of approximately 36 feet. Above that point, the stem has a mild forward rake.

Throughout the period in question the Jablanica was manned by a licensed Yugoslavian crew. Captain Franko Seman took command of the ship on July 12, 1986, in Greece. The Jablanica subsequently traveled to France where it picked up a load of steel coils to be delivered to the ports of Detroit, Chicago, and Duluth. The ship was to be loaded with a cargo of grain in Duluth for shipment to Tunisia.

During the period the Jablanica was on the Great Lakes, the ship was required to have on board a pilot registered in the United States or Canada pursuant to 46 U.S.C. 9302. In keeping with this statute, Pilot Kenneth Gumtow boarded the Jablanica when it first entered the jurisdiction of the Upper Great Lakes Pilots Association several days before the accident. Gumtow holds Coast Guard pilot license number 541829. During his time on the ship, Gumtow experienced no difficulty in communicating with the ship's officers. Neither did he experience any problem with the ship or its equipment.

Following the collision on August 21, 1986, Federal Coast Guard personnel from the office of the Captain of the Port in Saulte Ste. Marie boarded the ship and found her to be in compliance with all applicable navigation safety regulations, including the posting of vessel maneuvering characteristics.

On the morning of August 20, 1986, the Razal Brothers, with decedents Perkins, King, and Peterson aboard, departed the docks at Manistique, Michigan. It was the fishermen's intent to lift and set gill nets. The weather was clear, visibility was approximately twenty statute miles, and Lake Michigan was relatively calm with two to three foot waves.

After lifting 12,000 feet of net southwest of Seul...