Webster v. Davis

• Decision Date: 05 December 1952
• Docket Number: No. 13920.,13920.
• Citation: 109 F. Supp. 149
• Parties: WEBSTER v. DAVIS et al.
• Court: U.S. District Court — Southern District of California

109 F. Supp. 149

WEBSTER v. DAVIS et al.

No. 13920.

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

December 5, 1952.

A. F. Mack, Jr. (of Hoag & Mack), A. F. Mack, Jr. and Martin H. Webster, Los Angeles, Cal., for libelant.

Lasher B. Gallagher, Los Angeles, Cal., for respondents J. Charles Davis, II and Donald David.

TOLIN, District Judge.

This proceeding in admiralty was commenced and was tried upon a libel in personam for personal injuries.

On the night of July 3, 1951, libelant fell into an open engine hatch on board the sport fishing boat Deep C while the vessel was moored in Los Angeles Harbor. Except on the question of limitation of liability, the evidence is without conflict but the parties ask the Court to draw different inferences therefrom. Libelant claims that respondents operated the vessel for the carriage of passengers for hire and that a passenger-carrier relationship existed; and that if this be not true, he was at least an invitee. He has urged that he suffered personal injuries solely and proximately as a result of negligence of respondents. Respondents deny that he was either a passenger or invitee and assert that the accident resulted solely from libelant's own negligence. They further contend that if a passenger upon a vessel of United States registry in navigable waters of the United States is guilty of negligence which proximately contributes to the accident which produces injury, that the passenger is absolutely barred from recovery by reason of the familiar rule of contributory negligence which bars those contributorily negligent from recovery in an action at law. Respondents insist that the rule of comparative negligence has no application if the passenger-carrier relationship exists or if the injured person be an invitee seeking to become a passenger for hire. In addition to this question, the statutes relating to limitation of liability are invoked by respondents. It is in this area of the case the only conflict in evidence is found.

Respondents deny that the evidence establishes that those who arranged for libelant to go aboard the vessel before its scheduled departure time were agents of the owner. The evidence establishes that they were. Even if this were not so, it was abundantly testified on behalf of libelant and not denied by either respondent that libelant was expected upon the boat by those in charge and that the expectation was that he would arrive early in the evening and was to be provided a place to sleep. The Court finds that he was in passenger status when injured. The attack upon libelant's successful claim to passenger status is based entirely upon the supposed inadequacy of the evidence to establish that those who arranged for libelant's acceptance as a passenger were not agents of respondents. This assertion is captious particularly in view of the respondent J. Charles Davis, II having accepted and retained the charter fee for the specific cruise which cruise was subsequently made, and otherwise ratified what the agents did for him. In light of the facts established, it would be impossible to find libelant to have been a trespasser. If those in charge of the vessel expect passengers at a given time and have the vessel available at the embarcation point to receive the persons who deem themselves passengers, there is a duty to avoid leaving unguarded open hatches in unlighted areas within the principal area of expected passenger travel to the cabin.

Libelant was a member of a club which had contracted exclusive passage for its members on the fishing boat Deep C. The cruise had been paid for in advance at the agreed charter price. The boat was due to leave a designated location at Los. Angeles Harbor at 2:00 A. M., July 4th. Arrangements were made by libelant and another to go aboard earlier so that they could sleep through the later evening and the earlier hours of the cruise during which the boat would be on its way to fishing waters. Respondent Donald Davis, asserted by libelant to have been the skipper and proved to thereafter have been the only crew member on duty at the time the accident occurred, stated after the accident that he had been expecting libelant on board since 9:30 P. M. but was ashore at a coffee shop later in the evening when libelant arrived at the landing. After making the statement at the hospital to which libelant had been taken for treatment, said respondent excused himself explaining that he had to get back to the boat to turn on the lights because others in the charter party would be coming aboard.

Libelant, an active man of 68 years, came to the designated landing about 11:00 P. M. The Deep C was moored beyond another vessel which was tied to a float adjacent to the landing. It was impossible while the boats were in that position to board the Deep C from the float except by first boarding the other boat and stepping from her onto the Deep C. Although the lighting equipment on the Deep C had not been turned on and she was dark at the time libelant boarded her, there was sufficient illumination from a floodlight on a nearby steamer pier that libelant and his son-in-law were able to uneventfully cross the intervening boat and board the Deep C. Once aboard, they called for the skipper. Not receiving an answer, the son-in-law set about stowing of the fishing gear. Libelant walked forward toward the only cabin. The light reflected from the steamer pier gave meager illumination. A hatch cover had been lifted from the engine hatch but libelant did not recognize it as a hatch cover and in the dim light could not be expected to have done so. It was placed upright against the bait tank and in that position acted as a barrier to the light from the steamer pier so that the area immediately forward the upright cover lay in a shadow. The open engine hatch was within that shadow. Walking toward the cabin, libelant stepped into the shadow which obscured that open hatch from his view. He stepped into the unguarded hatch and suffered disabling injuries which included a complete anterior dislocation of the right shoulder with a minor fracture. The left ankle was severely sprained and one of the tarsal bones fractured. Whether informed by its agents as the Court finds, or by interlopers, or by some other means, respondent Donald Davis had been on board early expecting libelant to appear. Having desired some coffee, he left the Deep C by the same route that libelant employed in entering her. Although the vessel was equipped with electric lights, respondent left the vessel entirely unlighted except for the meager illumination to some areas provided by the light reflected from the nearby pier. The open hatch was in the darkness deepened by the shadow from the hatch cover. Under the circumstances, the failure to either close the hatch or leave an attendant to warn the expected passenger or to provide illumination, was negligence of a high order. If a larger or more experienced crew were necessary to achieve these elementary safety measures, it was negligence not to have adequate personnel on duty.

For reasons hereinafter treated, the Court cannot accept respondents' claim that contributory negligence is a complete defense to the action. The Court finds that libelant was guilty of negligence which was one of the proximate causes of the accident. Such contributory negligence must diminish libelant's recovery.

Libelant was 68 years of age. His venture included entry upon a vessel which he had never seen before. She was a stranger to him. Even though he had paid his passage and was entitled to assume that a high degree of care would be taken for his safety, the Court cannot find it to be ordinary prudent conduct for such a...