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 .
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.
Plaintiff claims that the unreasonable risk created by Gradler, included among other things, the operation of the KAMAI when weather and sea conditions were such that venturing onto the lake with knowledge of an unseaworthy condition gravely endangered the lives of those on board.
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 plywood at an accelerated rate, gradually delaminating the plywood making it difficult to maintain as well as being unsafe.
Yagle found the design unusual in the sense that typical boat design implemented two considerations: (1) provision of a skeleton which supports the sheathing and (2) integration of the sheathing into the frame system so the two work together. The design of the KAMAI did not meet this standard. The unsupported panel, due to lack of contact between framing and sheathing, did nothing to reduce the panting of the sheathing due to hydrostatic pressures both at rest in still water and underway at high speeds with rough seas and continuous flexing of the wood. The plywood first deteriorates internally and the laminae separate. While testimony established that one-half inch plywood was equal in strength to thicker planking, this is true only as long as its lamination is intact. The lack of proper structure which caused this led Yagle to his conclusion that the hole in the KAMAI was due to its deficient structure. However, Yagle did testify that the sheathing is so weakened in this type of construction over a period of time that a less severe loading condition is apt to cause failure. Therefore, the boat will not perform as a reasonably prudent boat operator would expect it to. Yagle concluded that the damage was caused by an outside object striking the weakened hull sheathing, causing a puncture. A strong hull is more capable of resisting an outside object such as a log, causing it to roll underneath the vessel without penetration.
Yagle's opinion is supported by Gradler's own comments about the condition of his boat.
Defendant's expert, Alanson Mang, ship's carpenter, disagreed with plaintiff's expert with respect to the effect of excessive flexing. Mang found no unseaworthy condition due to the longitudinal construction of the KAMAI nor upon visual examination of the craft on the eve of trial.
Mang agreed that the unsupported area of the hull would have been stronger if the floor timbers (transverse members) met the bottom but that the hull was not weakened to the point of being unseaworthy as a result of the absence of support. Mang testified that a degree of flexing is beneficial and that excessive flexing does not cause lamination failure. According to Mang, when the laminae fail, a variation in the thickness of the plywood results and this variation in thickness was not noticeable upon visual exam at the time of trial. Mang also used a screwdriver to tap on the hull in order to determine whether or not the plywood hull had deteriorated to the point of being classified as unseaworthy. Mang concluded that the plywood hull of the vessel at the time he examined it was sturdy and sound.
We think the KAMAI was in an unseaworthy condition at the time Gradler departed from Presque Isle Marina on the night of September 9, 1972. A degree of flexing in the plywood hull is expected and even necessary in adding to the strength of the hull, however, the large expanse of unsupported plywood sheathing composing the hull of the KAMAI was subjected to excessive flexing due to its deficient hull construction which could only result in the breakdown or deterioration of the plywood.
This deterioration leads to a weakening of the hull when it comes in contact with objects found in the water, floating or submerged. Therefore, the vessel becomes unsafe when exposed to seas similar to those existing on Lake Erie at the time the KAMAI was holed, where floating debris is most prevalent, and objects are less visible.
As noted earlier, a finding of unseaworthiness alone, as the cause of the KAMAI's foundering, would not result in liability on the part of Gradler. The only existing claim in the present action is one for maritime negligence and therefore an examination of the duty Gradler owed Armour is necessary.
Gradler owed Armour a duty of reasonable care. That duty was set forth by the Supreme Court in Kermarec v. Compagnie, 358 U.S. 625, 79 S. Ct. 406, 3 L. Ed. 2d 550 :
"We hold that the owner of a ship in navigable waters owes to all who are on board for purposes not inimical to his legitimate interests the duty of exercising reasonable care under the circumstances of each case." 358 U.S. at 632.
Gradler was aware of the rough seas on Lake Erie on the day of the accident. He postponed the fishing trip he planned for the morning of September 9 due to heavy winds. Later in the afternoon he decided to go out because he thought the winds had died down. Upon reaching the marina, several people who had been on the lake warned him of the rough seas they had experienced. These people had boats larger than Gradler but still opted to stay in protected areas rather than venture onto the rough Lake.
Gradler was also aware of the hull deficiencies of the KAMAI. In September of 1971, the KAMAI took on excessive amounts of water while docked at the Presque Isle Marina and partially sank. The cause of the leak was apparently the KAMAI coming down on a log on her port side while in rough waters, as reported by Gradler in his insurance claim.
Gradler was an experienced carpenter and a building contractor by trade. On several occasions between the time the KAMAI developed leaks in September of 1971 and her sinking on September 9 or 10, 1972, Gradler examined the framing in the hull bottom with Clarence Flickinger, also an experienced boater and carpenter. Gradler and Flickinger discussed the need for additional hull strength through application of framing or ribs to prevent the plywood hull from flexing or warping in rough water. Gradler expressed concern to Flickinger about the bottom "opening up, if the sea was a little rough, and sinking the boat." (TT 143). In his conversations with Mrs. Flickinger prior to leaving the marina on the eve of the mishap, and at other times, Gradler discussed the unseaworthiness of the craft and its susceptibility to damage, especially in rough water. (TT 128-130.)
Gradler also was aware that debris was frequently encountered in Lake Erie waters especially in a rough sea. His encounter with a log in rough water caused the September 1971, sinking. Mrs. Gradler also testified that they frequently encountered debris in the lake. (TT 185).
In light of the above considerations, Gradler's actions breached his duty of reasonable care which was owed to Armour. Gradler was aware of the frailities of the KAMAI and therefore venturing out into the lake under the conditions described created an unreasonable risk of harm to Armour, constituting actionable negligence on the part of Gradler.
LIMITATION OF LIABILITY
In the Answer to Plaintiff's Complaint, defendant raises the Limitation of Liability Act, 46 U.S.C. § 183, in defense of any claim for damages in the event liability is determined against the defendant. § 183(a) provides that:
"The liability of the owner of any vessel, whether American or foreign, . .. for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, . . ., exceed the amount or value of the interest of such owner in such vessel, and her freight then pending."