Stewart v. George W. Davis & Sons, Inc.
| Decision Date | 13 April 1972 |
| Docket Number | Civ. A. No. 853. |
| Citation | 340 F. Supp. 643 |
| Parties | M. G. STEWART, Plaintiff, v. GEORGE W. DAVIS & SONS, INC., a Florida Corporation, Defendant. |
| Court | U.S. District Court — Northern District of Florida |
Jerry W. Gerde, Panama City, Fla., for plaintiff.
Alton O. Paulk, Panama City, Fla., for defendant.
In this action plaintiff sues defendant for shipboard injury sustained while plaintiff was deep-sea fishing aboard one of defendant's vessels which had been chartered out of Panama City, Florida, the home port of the defendant corporation. It is alleged by plaintiff that defendant breached its duty of care to a fare-paying passenger and that as a result of defendant's negligence plaintiff was injured. To these allegations defendant answered by denying negligence on its part and by affirmatively alleging that plaintiff himself was negligent which negligence it is alleged proximately caused or contributed to plaintiff's injury. Jurisdiction of this Court is invoked pursuant to Title 28, United States Code, Section 1333. Testimony having been taken and evidence having been received, and this Court having considered depositions and pleadings on file in this cause, enters the following findings of fact and conclusions of law as required by Rule 52(a), Federal Rules of Civil Procedure.
Plaintiff at the time of his injury was an employee of Greyhound Lines, Inc. In October 1969, plaintiff in the course of his employment was making regularly scheduled runs from Chattanooga, Tennessee, to Macon, Georgia. On one such run plaintiff and certain of his passengers had chartered the Ocean Queen, one of defendant's vessels. They arrived dockside at Panama City, Florida, on October 7, 1969. It was the testimony of the several witnesses that plaintiff, an avid fisherman, would often organize these fishing trips to Panama City, Florida, make the necessary arrangements with defendant as to the charter of a vessel and then drive the participants down to Panama City, Florida, for two or three days of deep-sea fishing. Plaintiff himself received no extra compensation from his employer or commission from defendant for his efforts in organizing these fishing trips. Plaintiff, however, in consideration of his efforts for arranging the charter of defendant's vessel, was allowed to fish on board free of charge.
On such expeditions it was disclosed that defendant furnished boat, crew and fishing equipment. Crew members were provided to assist passengers during those hours when they were fishing. On this particular trip there was one crew member for every ten passengers who were fishing. Crew members were instructed to mark and string the catch of each passenger inasmuch as the catch of each passenger was tagged or marked with a metal roofing disc attached to the string which disc defendant recognized as a possible hazard. Aware of the likelihood of harm which might befall the inexperienced fisherman attempting to mark and string his catch in this method, defendant felt it necessary that only crew members should be allowed to perform this task. For this reason passengers were asked that they not tag and string the fish but that they should notify the crew members who would see to this chore.
On this particular trip which is the subject matter of this action, plaintiff and the other passengers boarded the Ocean Queen early on the morning of October 7, 1969, and soon departed for the fishing grounds; by 8:00 A.M. that morning they began to fish. After fishing for some time plaintiff went aft and obtained a disc from a cigar box in order to mark the catch for one of his fellow passengers. Plaintiff volunteered to do this inasmuch as the other two crew members were busy assisting other passengers. After plaintiff had strung and tagged the fish he was about to grab it around the gill area and carry it to the box to be placed for storage. At this point the fish "flopped over" causing the metal disc to slide between and across plaintiff's fingers, cutting them and causing him injury.
Plaintiff was treated on board by the captain of the vessel. There is some conflict in the testimony as to the adequacy of first aid equipment on board at the time of plaintiff's injury. Plaintiff's hand was wrapped and bandaged and on the afternoon of the following day, upon the vessel's arrival in port, plaintiff went to the emergency room of a local hospital and received treatment for his injury. The cost of this treatment was $10.00.
Testimony further reveals that during the interval between plaintiff's injury and the vessel's return to Panama City, Florida, plaintiff attempted to fish but that his efforts were thwarted by the injury to his hand.
The Court finds that being aware of the potential hazard created by the presence of the metal roofing discs used to tag and string fish defendant's employees knew that passengers...
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Smith v. Southern Gulf Marine Co. No. 2, Inc.
...wave", which was the proximate cause of Cobb's injuries, was not reasonably foreseeable by the officers and the crew of the ship. And in Stewart, supra, a passenger sued the owner of a deep-sea fishing vessel for injuries he suffered to his hand when he attempted to tag a flopping fish. Cre......