THE PEGEEN, 6644-Y.

• Decision Date: 30 April 1936
• Docket Number: No. 6644-Y.,6644-Y.
• Citation: 14 F. Supp. 748
• Parties: THE PEGEEN. In re KEACH et al.
• Court: U.S. District Court — Southern District of California

14 F. Supp. 748

THE PEGEEN In re KEACH et al.

No. 6644-Y.

District Court, S. D. California, Central Division.

April 30, 1936.

Young, Lillick, Olson, Graham & Kelly (by John C. McHose), of Los Angeles, Cal., for petitioners.

Esli L. Sutton, Rowland P. Fontana, N. B. Nelson, and R. E. Parr, all of Los Angeles, Cal., and Leslie K. Floyd, of Modesto, Cal., for claimants.

YANKWICH, District Judge.

On August 27, 1933, Russell D. Keach and Lucille Keach, his wife, were the owners of the American gasoline cruiser Pegeen, a vessel of the United States, Register No. A-1820, approximately 36 feet in length, powered with an 8-cylinder gasoline engine. The vessel was docked at Wilkie's Boat Landing, West Basin, Los Angeles Harbor. Louis R. Shaw, a licensed pilot boatman, licensed since 1931 to operate vessels up to 35 feet in length, was a friend and a former business associate of Russell D. Keach. He had his permission to use the vessel for himself and such persons as he desired to invite, whenever he chose. The owners received no compensation for such lending. Shaw also had permission to use the supplies on board. The vessel was always well supplied with gasoline and the docking charges and inspection were taken care of by the owners. The most that Shaw ever contributed was to buy gasoline when necessity arose. On Sunday, August 27, 1933, the Pegeen piloted by Shaw left her dock. There were on board eight persons, guests of Shaw. The owners were not on board. The Pegeen proceeded to the Isthmus, Santa Catalina Island, where she anchored about 10:45 a. m. After a short stop, she continued to Avalon, Santa Catalina Island, where she anchored in Avalon Bay until about 2:30 p. m., when preparations were made to begin her return voyage to Los Angeles Harbor. While the preparations were going on, an explosion occurred in the engine compartment of the Pegeen which blew the stern out of the vessel, caused other serious damage and fire on board, caused the death of one of the persons on board and injury to a number of others. Damage to and loss of clothing, baggage, personal effects, and property on board also resulted. Almost immediately after the explosion, the Pegeen started to sink. She was towed out of Avalon Bay to Pebble Beach, Santa Catalina Island, where she subsequently sank and became a constructive total loss.

The exact cause of the explosion does not appear. It is evident that it was caused by escaping gas in the hold of the ship. The gas was either propane gas escaping from a cookstove, upon which coffee had been warmed just before the explosion, or gasoline escaping from the fuel line of the motor. The ignition on the motor must have set it on fire. From the testimony of Shaw and others, the circumstances under which the explosion occurred were: Shaw first went to the bow of the vessel in order to weigh anchor, preparatory to getting under way. The vessel proceeded astern and then went ahead. The motor, at first, responded. Then the accelerator failed to respond. He then went into the hold to see the source of the trouble. He called to one of the guests to shut off the motor. The latter pushed a button, whereupon the explosion occurred. The occurrence may be well described in the words of Shaw and of E. J. Thacker, the guest who pushed the button. We quote the following from Shaw's testimony:

"Q. Then you prepared to leave at Avalon? A. Yes, sir.

"Q. Describe to the Court what took place on this boat from the time you commenced to leave. A. Well, I started the engine and I went forward to dislodge the anchor and then after the anchor had been dislodged I backed up on her, and when they let me know up in the bow that he had dislodged the anchor and had practically had it aboard, why, I started to go forward and all of a sudden, why, she would idle, — the motor would idle, — but she would not take the gas in order to give her power to meet the momentum of the seas. So there was a gas throttle on one side and a spark on the other with a wheel like a segment, you know, that have little notches in them where you can stay the speed or set it by the carburation, where you can set how fast you want to go, to increase, you have to raise that lever. I threw the lever up and didn't get any response. So I stated I would have to remove the panel back of the instrument board in order to tighten the set screw, which there is a wire running from the set screw at the top down to the carburetor, in order to throw the jet open in order to get you more gas, and I figured that was the trouble. So I started down and I said to Mr. Thacker, I said, `Well, might as well shut it off. There is no use to burn up all the gas while I am making repairs.' And I had just started down the companion way when he shut it off and, as he did so, why, she blew up."

The following is the gist of Thacker's testimony:

"Q. What operation did you go through in attempting to turn off the engine? A. There was only a switch you had — an extreme switch to the left side, only a switch was projecting out and I reached over and pushed that switch in.

"Q. And then what happened? A. That caused the explosion. * * *

"Q. In other words, when you pushed the button that explosion took place? A. That is right."

By their petition the owners seek exoneration from liability or limitation of liability. Claimants, the passengers (other than Shaw), have filed various claims for damages in various amounts. They seek to fasten liability upon the owners by alleging that the vessel was unseaworthy, her engine inadequate and not in proper mechanical condition, and that she did not have a competent master or engineer.

The question of the unseaworthiness of the vessel may be disposed of by stating that there is no evidence which would warrant such a conclusion. On the contrary, all the evidence is the other way. Not only that, but it appears, without contradiction, that the owners of the vessel kept her at a landing where she was regularly serviced and inspected, before and after each trip. Her equipment was in excellent condition. The motor was a modern, up-to-date motor which had only been installed a short time before at a considerable expense and had only had between fifty and seventy hours of running. Two weeks before the fatal trip the owners had taken her on a trip which was uneventful. On the morning before she left her dock, the employees of the landing had inspected her and had ventilated her. They were present when Shaw started the engine and cast off. There were no defects of any type at that time. Nor was there any evidence of any odor of escaping gas of any character. Shaw's experience in seamanship and navigation stands unquestioned. His pilot's license attests them.

The claimants were Shaw's guests. All were unknown to the owners. Whether the relationship between Shaw and the owners be considered in the light of the general principles applicable to the law of bailments or in the light of admiralty principles, Shaw was not the agent of the owners. Nor can the owners be said to have been in control of the vessel or of its operations from the time she left her dock. The lending was clearly a gratuitous bailment. And even in the case of a bailment for hire, the bailor is not liable to third persons for the negligent acts of the bailee while the property is in his exclusive possession and control. He is liable, of course, for injuries resulting from a known defect in the property which is the subject of the bailment. See Gulzoni v. Tyler (1883) 64 Cal. 334, 30 P. 981; Rocha v. Garcia (1928) 203 Cal. 167, 263 P. 238; McClaren v. Weber Bros. Shoe Co. (C.C. A.1, 1909) 166 F. 714; Burnett v. Texas Co. (1933) 204 N.C. 460, 168 S.E. 496; Guile v. Snyder (1924) 165 Ark. 221, 263 S.W. 403; Saunders System Birmingham Co. v. Adams (1928) 217 Ala. 621, 117 So. 72; 6 Cor.Jur. p. 1151, § 114; 45 Cor.Jur. p. 894, § 335. In the case of a gratuitous bailor he is only under the duty to indicate defects in the property lent of which he is aware. He is not under the duty to inspect and repair it while it is in the possession and under the control of the bailee. If, by reason of any defect of which the owner had no knowledge, damage and injury occurs, the owner owes no obligation to the bailee on that account. Nor is his obligation to third persons greater than that to his bailee. See Johnson v. H. M. Bullard Co. (1920) 95 Conn. 251, 111 A. 70, 12 A.L.R. 766; Dickason v. Dickason (1929) 84 Mont. 52, 274 P. 145; Note on "Liability of Bailor for personal injury due to defects in subject of bailment" at 12 A.L.R. 774; and Supplementary Note on the same subject at 61 A.L.R. 1336.

Johnson v. H. M. Bullard Co., supra, is considered a leading American case on the subject. Although the subject of the bailment was a truck, there is great similarity between the facts there and the facts here. There the defendant, a furniture dealer in New Haven, Conn., owned a Pierce-Arrow two-ton motor delivery truck which he had owned and used for about a month. One Lewis was his regular driver, and one Limbacher had charge and supervision of his trucks and of their use. On November 11th after the Armistice Day parade, Lewis used the truck for delivery of furniture for the defendant until 6 o'clock. He then put it up in the garage and went home. After changing his clothes and having his supper, Lewis called up Limbacher by telephone and asked if he could take the motortruck for the evening, as he wanted to take some people out for a ride. Limbacher gave permission to take the truck, stipulating that it should be in by 10 o'clock. Lewis and a friend started out with the truck from the garage, and after proceeding a few blocks picked up two or more friends. After driving through the streets he saw a number of young men standing at the corner. Some one upon the truck invited them to join them on the ride. By now the truck had some twelve or fifteen passengers. The truck overturned, resulting in the...