Whites Landing Fisheries, Inc. v. Towles
| Decision Date | 28 December 2021 |
| Docket Number | Case No. 3:20 CV 2740 |
| Citation | 577 F.Supp.3d 644 |
| Parties | WHITES LANDING FISHERIES, INC., Plaintiff, v. Eddie C. TOWLES, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
George A. Katchmer, Katchmer Law Office, Bloomingburg, OH, William H. Smith, Jr., Smith & Lehrer, Sandusky, OH, for Plaintiff.
Michael J. Liddane, Foster, Swift, Collins & Smith, Southfield, MI, Kelly E.E. Mulrane, Benesch, Friedlander, Coplan & Aronoff, Columbus, OH, for Defendant.
What began as a small-value claim over a Father's Day boating accident has turned into a protracted federal case, complete with a bench trial on liability and damages, and post-trial briefs (Doc. 21–23). The central figure? Not a tsunami. Not a tempest. But a thunderstorm. Plaintiff Whites Landing Fisheries, Inc. ("Whites Landing") first sued Defendant Eddie Towles in municipal court, claiming Towles steered his boat into Whites Landing's fishing nets during an afternoon thunderstorm on Lake Erie (Doc. 1-1). Towles counterclaimed, alleging Whites Landing misplaced its nets and was therefore responsible for damage to Towles’ boat (Doc. 1-2). Towles removed the case to this Court pursuant to its federal maritime jurisdiction. 28 USC § 1333(1). Each side seeks compensatory damages, punitive damages, and attorney fees.
In the mid-afternoon on June 21, 2020, Towles cast off from a marina in the Huron River on his 34-foot twin-motor leisure boat (the "Floored"), joined by his wife and two children, and another couple with their two children (Doc. 21 at 57–101). Their intended destination: a shallow area of Lake Erie near a beach for swimming (id. at 61, 82). Before heading out, Towles checked local weather reports, which predicted a mostly sunny day with possible isolated thunderstorms in the afternoon (Doc. 21 at 62). As he navigated out into the lake, Towles became aware of a storm approaching from the south (id. at 65).
Rather than pause or turn back, Towles decided to proceed further into the lake (id. ). Approximately fifteen minutes later, as the storm appeared to worsen and the sky became "very dark," Towles navigated westbound toward Cedar Point, the direction of the intended destination (id. at 66). The storm quickly became "severe" and moved directly overhead (id. at 67). Despite the conditions -- four-to-six-foot waves, high winds, and visibility described as "very, very poor," akin to "when you're driving and it's raining so hard that you're having a hard time seeing through your windshield wipers," Towles chose to turn the boat around and slowly navigate eastward back towards the marina, directly through the storm (id. at 66–68, 72, 92).
While pushing through the storm, the boat suddenly made a loud noise and lost power in its right motor (id. at 68). Having clearly struck something, Towles turned off the other motor and investigated further, eventually discovering that the boat had become tangled in a black rope (id. at 69–70). Towles immediately alerted the Coast Guard over the radio, reporting they were "dead in the water," but did not request assistance (id. at 71). Towles and the other three adults were all on the top deck, and allegedly alert to the conditions around them, "as much as you could be in poor visibility" (id. at 69).
Prior to the accident, Towles did not see any markings or flags, which are required to alert boaters to the location of fishing nets (id. ). Towles felt it was unsafe to leave the boat anchored in an awkward fashion given the weather conditions and decided to cut the rope entangling the propeller -- accomplishing this by leaning over the swim platform at the back of the boat, with his friend holding his feet while the waves crashed over him (id. at 70). Successfully cutting the rope, Towles then, with only one motor, steered to a marina in Point Pleasant (id. at 70–72). The following day, Towles spoke with Ohio Department of Natural Resources ("ODNR") Watercraft Officer Sergeant Walter Hodgekiss, who wrote an investigation report of the accident (Docs. 21 at 73). In that report he cited "operator inexperience" as the primary cause of the accident, along with "weather" as a factor (Trial Ex. 3)
Whites Landing alleges Towles is liable under either a simple negligence theory, based on the negligent operation of his boat, or a negligence per se theory, due to his failure to comply with ODNR regulations by striking a properly flagged commercial fishing net (Doc. 1-1). Towles denies both claims and, in his Counterclaim, alleges that Whites Landing's improper placement of its nets raises a presumption of liability under the Pennsylvania Rule, which this Court analyzes below. In the alternative, Towles offers an affirmative defense -- that the accident was caused by an Act of God and that his actions should be excused as "an error in extremis" (id. ).
The nearly 150-year-old Pennsylvania Rule is triggered when a party violates a statute or regulation intended to prevent maritime accidents. The Pennsylvania , 86 U.S. 125, 136, 19 Wall. 125, 22 L.Ed. 148 (1873). The Rule requires the party in violation of the statute or regulation to prove that the violation could not have been a cause of the accident. Id. The Rule does not fix liability, rather it allocates a burden of proof to the violating party. Pennzoil Producing Co. v. Offshore Exp., Inc. , 943 F.2d 1465, 1472 (5th Cir. 1991). The Rule originally applied only to collisions between ships, but courts have since expanded the Rule to all maritime accidents. Id.
Relevant here are the regulations pertaining to the proper placement and flagging of commercial fishing nets. ODNR regulations require permitted fishing nets in Lake Erie be marked with anchored flags -- a double flag on the outer side (for Lake Erie, the north side), and a single flag on the inner, shoreside end of the netting (Doc. 23-1 at 10). Specifically, the shoreside flag must have an 18-inch square red flag mounted on a 6-foot staff, and the outside double flag must be marked with two 18-inch square flags on an 8-foot staff (id. at 10–11). An Ohio statute also requires: "No person shall leave a commercial fishing device in a slack manner, or torn parts thereof, in the waters of the Lake Erie fishing district ...." Ohio Rev. Code § 1533.55.
Dean Koch, President of Whites Landing, testified that his crew complies with these requirements, and that the nets at issue here were marked with a single red flag with an over 18-inch pendant on the shore side and two black flags on the outside, each eight feet above the water (Doc. 21 at 13). The flags are placed on 16-to-20-foot aluminum staffs, attached to floats with weights to prevent them from drifting (id. at 30). Whites Landing crew members place these flags alongside the trap nets each time the nets are placed in the lake, as part of the routine course of business (id. ).
When asked if he had seen any double flags prior to the collision, Towles testified at trial that he "did not see anything the day of the incident prior to the boat [hitting the net]" (Doc. 21 at 69). This contradicts what he told Sergeant Hodgekiss the day after the accident, when he stated that he believed he was north of the double flag at the time of the collision, with Hodgekiss suggesting, "[h]e had to see a double flag if he thought he was north of it" (Doc. 23-1 at 14). Whether or not he saw the flags prior to striking the net, Towles admits he was able to "clearly" see the double flag shortly after the accident (Doc. 21 at 74). Towles testified that after he cut his boat free, he "travel[ed] north away from the entanglement" and "clearly observed that we were north of the double flag," where he also observed floatation buoys and a portion of the net floating on the surface (Doc. 21 at 75).
Sergeant Hodgekiss testified that, in his experience, nets can be brought to the surface of the water following accidents with boat propellers (Doc. 23-1 at 15). According to Matthew Liebengood, a law-enforcement supervisor for the ODNR's Division of Wildlife, there were no reported accidents in 2020 involving nets unlawfully set by Whites Landing (Doc. 23-2 at 7). Based upon the record facts, the most probable scenario is that the Whites Landing nets were properly flagged and anchored. Netting observed north of the double flags after the accident would likely have been the result of Towles’ cutting the rope, allowing the net to drift from its anchor. Moreover, a properly-attentive boat operator would likely have been able to see the flagging, as it complied with all the requisite ODNR and ORC requirements. This Court notes that the three other adults, allegedly serving as lookouts, did not testify at trial. Towles’ version of events remains unsupported. With poor visibility, it was incumbent on Towles to exercise necessary care and, if an attentive lookout was inadequate, particularly at the low speeds the boat was allegedly moving (five to eight miles per hour according to Towles), a prudent boater would have ceased operating the boat until conditions improved (Doc. 21 at 67).
This conclusion is buoyed by the testimony of Sergeant Hodgekiss, who stated that although Towles wasn't officially cited for failure to maintain a proper lookout, (Doc. 23-1 at 9–10). This Court agrees. See Skandia Ins. Co. v. Star Shipping AS , 173 F. Supp. 2d 1228, 1240–43 (S.D. Ala.), aff'd sub nom. Skandia Ins. Co. v. Star Shipping Co. , 31 F. App'x 201 (11th Cir. 2001) ( an admiralty law case, "an ‘Act of God’ will insulate a defendant from liability only if there is no contributing human negligence [...] even in the face of a hurricane befitting the category, [d]efendants still bear the burden of...
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