Sweeney v. Car/Puter Intern. Corp.

• Decision Date: 27 August 1981
• Docket Number: Civ. A. No. 77-2258-1.
• Citation: 521 F. Supp. 276
• Court: U.S. District Court — District of South Carolina
• Parties: June Catherine SWEENEY, Plaintiff, v. CAR/PUTER INTERNATIONAL CORPORATION, and Small World Creative Enterprises, Inc., Defendants and Third-Party Plaintiffs, v. Roy W. SWEENEY, Third-Party Defendant and Cross Claimant.

521 F. Supp. 276

June Catherine SWEENEY, Plaintiff, v. CAR/PUTER INTERNATIONAL CORPORATION, and Small World Creative Enterprises, Inc., Defendants and Third-Party Plaintiffs, v. Roy W. SWEENEY, Third-Party Defendant and Cross Claimant.

Civ. A. No. 77-2258-1.

United States District Court, D. South Carolina, Charleston Division.

August 27, 1981.

Cody W. Smith, Jr. and Ellis I. Kahn, Solomon, Kahn, Roberts & Smith, Charleston, S. C., for June Catherine Sweeney.

Neil C. Robinson, Jr., Grimball, Cabaniss, Vaughan & Guerard, Charleston, S. C., for Car/Puter International Corp.

B. Allston Moore, Jr., Buist, Moore, Smythe & McGee, Charleston, S. C., for Small World Creative Enterprises, Inc.

J. Rutledge Young, Jr., Young, Clement, Rivers & Tisdale, Charleston, S. C., for Roy W. Sweeney.

ORDER

HAWKINS, District Judge.

This is a case of admiralty and maritime jurisdiction within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure. On the afternoon of Sunday, May 8, 1977, June Catherine Sweeney was a passenger in a fourteen and one-half foot outboard motor boat owned and operated by her husband, Roy W. Sweeney. At a point on the Atlantic Intracoastal Waterway between Mt. Pleasant and Sullivan's Island, South Carolina, just to the north of the Ben Sawyer Bridge, Mrs. Sweeney sustained certain injuries to her back when her small boat was allegedly tossed about by the wakes of two passing yachts, causing her to be thrown heavily to the deck.

In due course, Mrs. Sweeney commenced an action in admiralty against Car/Puter International Corporation (hereinafter "Car/Puter"), the corporate owner of a forty-five foot Hatteras yacht, and Small World Creative Enterprises, Inc. (hereinafter "Small World"), the corporate owner of a seventy-two foot Burger yacht, alleging that the two vessels were so negligently and recklessly operated that they jointly and concurrently brought about the conditions which caused her to be severely and permanently injured. Small World answered the plaintiff's complaint with a general denial, a plea of contributory negligence on the part of the plaintiff, and a further plea that her damages resulted wholly from the negligence and recklessness of her husband in the operation of the boat. In addition, it impleaded Roy W. Sweeney as a third-party defendant, alleging that the plaintiff's injuries were due wholly to his fault in the handling of the small boat and demanding that he be held liable for his wife's damages, either in whole or in proportion to his fault. Car/Puter filed essentially the same answer and subsequently joined with Small World in impleading Mr. Sweeney.

In his answer to the third-party complaint, Mr. Sweeney denied any responsibility for his wife's injuries and asserted counterclaims against the two third-party plaintiffs for his own damages consisting of the loss of his wife's society, companionship and services. The cross-complaint alleged further that the cross claimant's wife was forced to visit medical specialists and hospitals to receive treatment, medicine, appliances and advice. The third-party plaintiffs have moved to dismiss the husband's loss of consortium action as not recognizable in admiralty, and the court reserved a decision on the motion until the testimony had been taken.

With the issues thus joined, the case was tried before me in Charleston, South Carolina, on April 21, 22, 23 and 24, 1980. A number of witnesses testified in person. There was deposition testimony from the Master of the yacht SMALL WORLD and from a doctor now deceased, and there were entered into evidence numerous photographs, charts, plats and other documents. I have been furnished with Proposed Findings of Fact and Conclusions of Law in compliance with Rule 52(a) of the Federal Rules of Civil Procedure.

FINDINGS OF FACT

1. On May 8, 1977, the plaintiff, June Catherine Sweeney, was thirty-nine years old, employed as an accounting clerk with Slater Corporation at The Citadel, the military college of South Carolina, in Charleston. She was married to Roy W. Sweeney and the mother of two children, Susan, sixteen years of age, and Robert, fourteen years of age.

2. On May 8, 1977, the third-party defendant and cross claimant, Roy W. Sweeney, was forty-eight years of age and was employed as a butcher at a Piggly Wiggly store in North Charleston, South Carolina. He had been a boatswain's striker in the U. S. Navy for five years; he had owned several small boats from which he fished and his son waterskied, and the family occasionally went on boating trips together.

3. Sometime around the latter part of April 1977, Roy W. Sweeney purchased a fourteen and one-half foot Correct Craft pleasure boat equipped with a forty horsepower outboard motor. The boat is an open fiberglass tri-hull boat with one swivel seat in the bow on a pedestal which in turn is on a platform slightly raised above the bottom of the boat. There are two swivel seats in the afterend of the boat just forward of the motor where the operator and one passenger sit. The steering wheel and controls are on the starboard side between midship and the starboard aft swivel seat. About midship there are located two dry-storage lockers, one on each side of the boat, which are equipped with cushions. Two persons can be seated on these lockers facing each other; however, the lockers are relatively high in relation to the gunwale of the boat and are higher than the platform in the bow. The only rails on the boat are located around the bow and alongside the aft seats.

4. On Sunday, May 8, 1977, Mother's Day, the Sweeney family decided to go on a family outing in the boat. They trailered the boat to a landing on the intracoastal waterway just south of the Ben Sawyer Bridge, which is a swing bridge spanning the intracoastal waterway between Mt. Pleasant, S. C., and Sullivan's Island, S. C. They launched the boat and proceeded north up the intracoastal waterway under the Ben Sawyer Bridge to Breach Inlet at the northern end of Sullivan's Island. Robert Sweeney, the son, skied in the inlet for 20 minutes or so, and then the family decided to return home and cook out.

5. The SHALIDON is a Hatteras Sport Fisherman owned by the defendant, Car/Puter International Corporation, a New York corporation. It is forty-five feet long and has a width of fourteen feet, two inches. The gross tonnage is thirty-four tons, and it is equipped with two 335 horsepower inboard diesel engines. It is painted white with blue stripes and has what is commonly called a "tuna tower", which is a tall steel structure extending above the cabin. Immediately beneath the "tuna tower" is the "flying bridge" from which the vessel can be controlled. On May 8, 1977, this boat was being operated by a twenty-five year old professional boat captain, Barry A. Ratliff, and his brother, Keith, who was the mate. The captain was in the process of delivering the SHALIDON from Miami, Florida, to New York. On the previous day, May 7, 1977, he had brought the boat via the Atlantic Ocean from Jacksonville, Florida, to Charleston, South Carolina. On May 8th, he had attempted to take the boat "outside" again, but the seas were running so high he was forced to turn around, come back into Charleston Harbor, and proceed up the intracoastal waterway. As a result of his entering the Atlantic Ocean and having to return to Charleston Harbor he was some five hours behind his schedule.

6. The motor yacht SMALL WORLD was designed and built by the Burger Boat Company, Inc. of Manitowoc, Wisconsin, for the defendant, Small World Creative Enterprises, Inc., a Delaware corporation. It is seventy-two feet, two inches in length overall; has a beam of eighteen feet, four inches, a gross tonnage of eighty-eight tons, and is powered by two 450 horsepower inboard diesel engines. The hull is painted white with a blue stripe. The vessel can be controlled from the main cabin or from a sundeck, or bridge, located above the main cabin. On May 8, 1977, the SMALL WORLD had a crew of three; fifty-two year old Captain Stuart Ames, a licensed professional captain, the mate, Chris Bolger, and the cook, Dan Conlon. The SMALL WORLD left Palm Beach, Florida, on the morning of May 4, 1977, with the beneficial owners, Mr. and Mrs. Mac Schwebel, also on board and with a destination of Stanford, Connecticut. It left Beaufort, South Carolina, at 6:00 A.M. on Sunday, May 8th, and arrived Charleston at 11:45 A.M.

7. The weather was sunny, with a moderate wind, water somewhat choppy, vision clear and unobstructed, and a high tide about 1:00 P.M. EDT. Testimony as to the direction of the wind is in conflict. According to the official marine weather forecasts for May 8, 1977, and the actual marine coastal weather log and Charleston surface weather observations on that day, entered as exhibits at trial, no small craft warnings were in effect at any time on May 8, 1977.

8. The Ben Sawyer Memorial Bridge is a swing bridge, which means that the span pivots on a center section thus allowing vessels to pass through a draw. It is tended by a bridge tender who operates the mechanism that swings the bridge and maintains a "Draw Bridge Report" of vessels necessitating the opening of the bridge. It is shown on National Oceanic and Atmospheric Administration Nautical Chart No. 11518, S. C. Intracoastal Waterway. A segment of the chart portrays the stretch from the south end of Sullivan's Island to a point several miles north of the Ben Sawyer Bridge. According to the chart and the testimony at trial, the waterway just north of the Ben Sawyer Bridge is generally straight and measure 300 feet to 400 feet from bank to bank. On May 8, 1977, the depth of the waterway was nine feet at mean low tide. The navigable channel is about 150 feet wide. During the month of May, high tide would cause the depth of the waterway to be between fourteen feet and fifteen feet.

9. The bridge tender logged on the "Draw Bridge Report" that on May 8, 1977,...