Sprague v. Snug Harbor Marina, Inc.

• Citation: 534 P.2d 583,13 Wn.App. 246
• Decision Date: 21 April 1975
• Docket Number: No. 2234--I,2234--I
• Parties: Hollister T. SPRAGUE, Appellant, v. SNUG HARBOR MARINA, INC., a Washington Corporation, et al., Respondents.
• Court: Washington Court of Appeals

Page 246

13 Wn.App. 246

534 P.2d 583

Hollister T. SPRAGUE, Appellant, v. SNUG HARBOR MARINA, INC., a Washington Corporation, et al.,

Respondents.

No. 2234--I.

Court of Appeals of Washington, Division 1.

April 21, 1975.

As corrected May 7, 1975.

Rehearing Denied May 27, 1975.

Review Denied July 29, 1975.

Rutherford, Kargianis & Austin, Don M. Gulliford, Seattle, for appellant.

Detels, Draper & Marinkovich, Martin P. Detels, Jr., Seattle, Williams, Strong, Thomson & Cole, Curtis P. Thomson, Edmonds, for respondents.

WILLIAMS, Chief Judge.

Hollister T. Sprague brought this action against Snug Harbor Marina, Inc., and the community composed of Al Oakley and wife, to recover for damages for the loss of his houseboat, which capsized in Puget Sound. The cause was tried to the court, sitting without a jury, and resulted in a judgment of dismissal at the close of Sprague's case in chief. He appeals.

The essential facts are these: In October, 1970, Sprague delivered his 43-foot houseboat, the Whale II, to Snug Harbor Marina, which is located in Eagle Harbor, on Bainbridge Island, for the purpose of selling it. On 23 February 1971, the Whale II, with Al Oakley, an employee of Snug Harbor as pilot, departed from Eagle Habor bound for Edmonds. When the boat was off Point Wells, she took on water, capsized, and was lost except for nominal salvage.

In presenting his case, Sprague relied upon the rule of bailment that the unexplained failure of a bailee to return bailed goods is prima facie evidence of his breach of duty. Chaloupka v. Cyr, 63 Wash.2d 463, 387 P.2d 740 (1963); Althoff v. System Garages, Inc., 59 Wash.2d 860, 371 P.2d 48 (1962). In addition to proof of delivery of the boat to Snug Harbor, Sprague introduced testimony that Oakley, while acting as an agent of Snug Harbor, was negligent in taking the boat into Puget Sound on 23 February, because of prevailing bad weather. In this connection, a marine surveyor was called as an expert witness. He testified that it was imprudent for Oakley to venture out when small craft warnings were flying, as they were, and that the boat was lost due to weather conditions. The witness based his opinion on the official Coast Guard records, which showed that, at about the time of the rescue, the winds on Puget Sound were from 30 to 40 knots, and the seas were running from 5 to 6 feet.

For their part, Snug Harbor and the Oakleys relied upon the rule that the unexplained sinking of a vessel is prima facie proof of unseaworthiness. Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 62 S.Ct. 156, 86 L.Ed. 89 (1941); Kohlsaat v. Parkersburg & Marietta Sand Co., 266 F. 283 (4th Cir. 1920). Snug Harbor and the Oakleys also developed information about the events of the trip from the cross-examination of Sprague's witnesses and from Oakley, who was called as an adverse witness by Sprague. Sprague and a companion, both of whom had sailed on the boat in Canadian waters, gave evidence that she had experienced seas from 6 to 10 feet without difficulty, although it was pointed out that in those waters the waves were less choppy than in Puget Sound. Sprague testified that he would not hesitate to take the boat out in 6-foot waves, if the sea conditions were the same as he had experienced in Canada.

There was also evidence that, while in Canada, a crack of some 8 feet had been discovered in the hull near the stern. This was repaired by a shipwright, who would not guarantee the result. The marine surveyor testified that the bilge keels, consisting of plywood boxes fiberglassed over, were unsatisfactory. He also that that he would not recommend purchase of the vessel for use on the waters of Puget Sound.

Oakley testified that, shortly before capsizing, the boat had filled with water in the stern. The evidence is conflicting as to how the water got in. The marine surveyor said...