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April 10, 1978

SUSAN A. ARMOUR, Individually and as Executrix of the Estate of ROGER A. ARMOUR, Deceased, Plaintiff
RUTH A. GRADLER, Administratrix, C.T.A. of the Estate of DONALD L. GRADLER, Deceased, and RUTH A. GRADLER, Individually, Defendant

Weber, J.

The opinion of the court was delivered by: WEBER

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 448 F. Supp.]


 AND NOW this 10 day of April 1978, in accordance with the foregoing findings, it is

 ORDERED that JUDGMENT be and hereby is ENTERED for plaintiff as follows:

 Susan A. Armour, Executrix of the Estate of Roger A. Armour, deceased for damages under the Wrongful Death Statute . . . $118,849.00

 Susan A. Armour, Executrix of the Estate of Roger A. Armour for damages to the Estate of Roger A. Armour under the Pennsylvania Survival Act . . . 21,533.00

 against the Estate of Donald L. Gradler, Defendant.

 The present action, tried non-jury before this Court, is one for damages for the personal injuries and death of Roger A. Armour brought pursuant to the Pennsylvania Wrongful Death and Survival Acts, 12 P.S. §§ 1601-1603 and 20 P.S. § 3373, and the General Maritime Law. Originally brought in state court, this action was removed by defendant who alleged jurisdiction of the cause as one in admiralty under the General Maritime Law and under the Jones Act, 46 U.S.C. § 688. Defendant also alleged the action removable by virtue of diversity of citizenship. Liability was originally premised under common law negligence, violation of the Pennsylvania Motor Boat Law, 55 P.S. § 483, et seq., and the federal Boat Safety Act, 46 U.S.C. § 1451 et seq., the Jones Act, 46 U.S.C. § 688, and the General Maritime Law. Prior to trial of the action, plaintiff abandoned her claim based on the Jones Act.

 On September 9, 1972, at approximately 8 p.m., Donald L. Gradler and Roger A. Armour left the Presque Isle Marina, Erie, Pennsylvania, in Gradler's boat, the KAMAI, a 1967 -- 30 foot Revelcraft Express Cruiser, equipped with ship-to-shore radio. At the time of departure, Gradler was operating the boat with Armour as passenger. Their families had been advised that they were going fishing in Lake Erie and that they would return by midnight. Presque Isle Marina is a sheltered lagoon from which one enters Presque Isle Bay and thereafter into the open waters of Lake Erie.

 At 1:35 a.m., September 10, 1972, Mrs. Gradler called the Coast Guard and asked them to check on the whereabouts of her husband. The Station tried calling the KAMAI by radio while a Coast Guard shore patrol was discharged to check and see if the vessel had returned to its moorings. The search continued at all harbor docks and lagoons of the Presque Isle Bay area with negative results. At this time the search expanded with a Coast Guard cutter going out on an easterly patrol from the port of Erie into Lake Erie.

 At 7:25 a.m., on September 10, the Coast Guard patrol spotted the KAMAI submerged with just her cabin top visible above water and no one on board. At 12:45 p.m., two dead bodies were found floating within 100 feet of each other, later identified as Armour and Gradler. Both men were properly clad in Coast Guard approved life vests and floating in almost vertical positions. The bodies were a considerable distance from the partially submerged KAMAI. It was later determined that both men suffered from exposure prior to death and died as a result of asphyxiation.

 After the KAMAI was found, the Coast Guard cutter towed the partially submerged boat and beached it in the area of the Coast Guard station. Ultimately the boat was dry-docked in the Bayfront area at Erie, Pennsylvania. After recovery the examination by the United States Coast Guard revealed that the KAMAI's one-half inch plywood hull was split and set in on the bottom under the floor boards of the main cabin, eight feet aft of the bow and eighteen inches to the starboard side of the keel. At the time the KAMAI was located by the Coast Guard on Sunday, September 10, 1972, it was found in open water and there was no indication as to what, if any, obstacle may have been encountered.

 Plaintiff claims defendant's decedent was negligent under common law principles, in attempting to set out in obviously rough seas in a vessel with substantial hull deficiencies thereby endangering the lives of those on board. Plaintiff claims that this action breaches Gradler's duty of reasonable care owed to those coming aboard the KAMAI. It is clear from the evidence at trial that Gradler was aware of the rough sea conditions existing on Lake Erie since warned several times prior to departure of the conditions by owners of larger craft.

 The governing law of this case is found in the federal maritime law. In Kermarec v. Compagnie Generale, 358 U.S. 625, 3 L. Ed. 2d 550, 79 S. Ct. 406 [1959] where plaintiff was injured while visiting a seaman on board a vessel berthed at a pier in New York Harbor, the Supreme Court held that the district court erred in applying New York substantive law where the petitioner was injured aboard a ship upon navigable waters. The Court held the cause to be governed by standards of maritime law even though jurisdiction was originally premised on diversity grounds. See also Pope & Talbot v. Hawn, 346 U.S. 406, 98 L. Ed. 143, 74 S. Ct. 202 [1953]. As in Kermarec, the injuries and death of Armour occurred aboard a vessel upon navigable waters. It was there the conduct of which plaintiff complains took place. Therefore, the legal rights and liabilities arising from that conduct are within the full reach of admiralty jurisdiction and measureable by standards of maritime law. "If this action had been brought in state court, reference to admiralty law would have been necessary to determine the rights and liabilities of the parties." Kermarec, 358 U.S. at p. 628; Branch v. Schumann, 445 F.2d 175 [5th Cir. 1971]; King v. Alaska Steamship Co., 431 F.2d 994 [9th Cir. 1970]. The law of admiralty also extends to the cause even though it involves the operation of small private pleasure craft engaged in noncommercial navigation on navigable waters. Kelly v. United States, 531 F.2d 1144 [2d Cir. 1976]; St. Hilaire Moye v. Henderson, 496 F.2d 973 [4th Cir. 1973], cert. denied Henderson v. Moye, 419 U.S. 884, 42 L. Ed. 2d 125, 95 S. Ct. 151 [1974]. Once admiralty jurisdiction established then all the substantive rules and precepts peculiar to the law of the sea become applicable and therefore plaintiff's cause will be determined under principles of maritime negligence rather than common law negligence.

 Another basis of liability asserted by the plaintiff is the claim for damages due to Gradler's breach of the warranty of seaworthiness. The admiralty law extends the absolute right of a seaworthy vessel to a member of a ship's company or someone aboard performing the ship's work. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 [1946]; Kermarec v. Compagnie Generale, 358 U.S. 625, 3 L. Ed. 2d 550, 79 S. Ct. 406 [1959].

 In essence, the seaworthiness doctrine requires that things about the vessel, whether the hull, the decks, or the machinery, must be reasonably fit for the purpose for which they are used. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 10 L. Ed. 2d 297, 83 S. Ct. 1185 [1963]. To establish the "tort" of unseaworthiness it must be shown that the work performed by the person claiming liability under the doctrine was "in the ship's service" and that the warranty of seaworthiness thereby extends to him, Gutierrez, supra, and that the complainant was injured by an item of the ship's equipment not reasonably fit for its intended use. Gebhard v. S. S. Hawaiian Legislator, 425 F.2d 1303 [9th Cir. 1970].

 The basis of the Kermarec decision is that the vessel owner owes a duty of due care, not of seaworthiness, to those aboard with the owner's consent who are not in the privileged "seamen" class. In that case, it was also determined that the admiralty law would not differentiate between licensees and invitees.

 The "status" or relation which determines whether one is "in the ship's service" can arise only where the individual seeking to invoke liability for unseaworthiness is engaged in ". . . the 'type of work' traditionally done by seamen, and were thus related to the ship in the same way as seamen 'who had been or who were about to go on a voyage', . . ." United New York and New Jersey Sandy Hook Pilot's Ass'n. v. Halecki, 358 U.S. 613, 617, 3 L. Ed. 2d 541, 79 S. Ct. 517 [1959].

 During the trial of the within action, no evidence was introduced describing the function Armour played pertaining to the voyage of the KAMAI on September 10, 1972. Aside from allegations of the intentional scuttling of the KAMAI, the evidence clearly shows that Armour and Gradler left Presque Isle Marina with the sole intent of fishing in Lake Erie. Mrs. Gradler testified that this was the intent of her husband as expressed to her several times that last morning and afternoon. Mrs. Flickenger, owner of a boat berthed close to Gradler at the Presque Isle Marina, also testified that Gradler had inter alia told her he intended to go out fishing that night. Thus, testimony at trial could not qualify Armour as one employed in the ship's service or performing ship's work.

 Our research reveals no case in which a passenger on board a pleasure craft for recreational purposes only and not for hire based an action for damages against the owner of the craft on the seaworthiness doctrine unless "seaman" status was first established. Such a status was established for a member of the voluntary crew of a pleasure yacht where every crew member performed duties in connection with the vessel under the direction of its skipper. In re Read's Petition, 224 F. Supp. 241 [S.D.Fla. 1963].

 Plaintiff was not aboard the KAMAI to perform the traditional duties assigned to one in the ship's employ. Armour and Gradler intended to go fishing and any assistance rendered by Armour was voluntary and not under orders in the sense of a traditional master/crew arrangement. No evidence was presented that the craft required two people for safe operation, nor that a substantial part of Armour's role on the boat was to aid in navigation of the craft. The only evidence produced at trial with respect to the actual operation of the KAMAI consisted of eyewitness testimony placing Gradler at the helm and in control of the KAMAI while it left the Presque Isle Marina. Admittedly, the boat must be managed, and guests, if familiar with the handling of boats (as Armour was, being a small pleasure boat owner himself), aid in the mooring, anchoring and casting off of the vessel. Armour was a guest or acquaintance aboard Gradler's boat and a companion on a fishing outing. Armour did not come aboard for the purpose of aiding in navigation of the vessel or performance of crewman duties. The KAMAI was a privately owned pleasure craft and used exclusively as such. Gradler wanted to go fishing and invited Armour to come along as a guest, possibly to assist in handling of the boat in a joint venture. Assigning Armour the status of a seaman in the sense it is used in applying the seaworthiness doctrine would be improper under these circumstances; the necessary status for the seaworthiness doctrine was not intended to include two friends fishing for recreational purposes.

 A boat owner's liability for unseaworthiness "is a form of absolute duty owing to all within the humanitarian range of its humanitarian policy." Sieracki, 385 U.S. p. 95. That policy would include owner liability to one performing a service to the ship whether as a member of the crew or as an intermediary employed to do the work of a crewmember. However, where the injured party is a guest or co-adventurer, the policy and the historical function of the seaworthiness doctrine will not support unseaworthiness liability.

 Plaintiff also claims damages under the general maritime law resulting from the negligence of the defendant.

 There was evidence that Gradler knew the KAMAI to be dangerous in rough water due to hull structure deficiencies. Gradler was repeatedly warned of the rough seas prior to leaving the Marina but nevertheless went into the lake where the hull split and took on excessive water, causing the foundering of the KAMAI.

 Plaintiff's lead expert, Raymond A. Yagle, Ph.D., professor of Naval Architecture at the University of Michigan, evaluated the seaworthiness of the KAMAI and its propensity for impact damage under conditions one might encounter on Lake Erie. As noted above, the KAMAI was a 30 foot cruiser with 1/2 inch marine plywood sheathing in the hull section and was of a keel-type structure along the center line of the boat with longitudinal girders approximately 18 inches to either side of the keel with strong backs connecting the keel to the two longitudinals. These strong backs were transverse members and also 18 inches apart and not in contact with the plywood sheathing. This construction allowed a lateral dimension of approximately 15 inches of unsupported plywood with a longitudinal expanse of between 8 to 10 feet. Dr. Yagle found this construction in relation to the 1/2 inch plywood hull weak and inadequate for the intended use of the boat.

 In this area of the hull the only contact of the KAMAI's framing with the plywood sheathing was at the keel and the longitudinals on each side. The resulting effect of a plywood bottom being unsupported over such a length and width is that the rigidity of the plywood lessens. The boat is subjected to large pressure loads and the absence of framing allows the hull to be freely displaced. Yagle testified that this displacement is called "panting" or "flexing" and causes deterioration of the ...

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