termination of the bailment and create a new relationship. Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476 (1970); Rodgers v. Saxton, 305 Pa. 479, 158 A. 166 (1931).
In the instant case, Charles Michael English, President of English Whipple Sailyard, Ltd., testified that both he and Edwin L. Klett, the owner of the Yawl Ardent, had keys to the vessel. (T. 58) He further testified that when the boat was at the Erie Yacht Club in the Fall of 1974, it was under power several times, but he could not state whether Klett was using it. (T. 48, 255-6) English also stated that he was directed by someone to put the vessel in a particular stall at the Yacht Club when it first arrived. (T. 356-60) Klett testified he made no arrangements with anyone at the Yacht Club for the delivery of the Ardent. (T. 613, 29) He further stated that he did not sail the boat anytime in 1974 (T. 631) and that to the best of his knowledge it remained in the Sailyard during the Fall of 1974 and Winter of 1975, except for possible use by English. Timothy Allburn, who was employed at the Sailyard at the time in question, testified that he saw the "Ardent" out once in 1974 and that he "believed" that Klett was operating it. (T. 380).
Obviously, if both Klett and English had keys to, and access to, the boat, (Klett testified that he took his family to sleep on the boat on the last weekend in October 1974), then plaintiff did not have "exclusive" custody and control over it. Based on the contract for delivery, storage, and repairs, however, the court finds that a bailment existed for the mutual benefit of the parties and that plaintiff was in possession and control of the vessel at the time of the sinking.
2. Purchase of Insurance by defendant.
Plaintiff contends that because defendant purchased insurance on the vessel a bailment could not have been created. It has been held, however, that the retention of insurance by an owner covering the bailed subject matter is not necessarily inconsistent with the intention to bail, Banks v. Chas Kurz Co., 69 F. Supp. 1017 (E.D.Pa.1947), and the court finds that Klett's purchase of insurance in this case did not negate the intention to bail the vessel.
3. Security at the Sailyard.
Given that a bailment existed, defendant has made out a prima facie case of negligence on the part of plaintiff, and plaintiff must show that the loss was not its fault, Moss v. Bailey supra because the bailee is held to the exercise of ordinary care and is responsible for ordinary negligence, but not for injury by accident or other faultless cause. 9 Willison on Contracts 1034. Plaintiff attempted to show this by establishing that vandals entered the sailyard and tampered with the sea cock on the "Ardent" causing the vessel to fill with water and sink. (T. 70-79)
The issue of the effect of a superseding cause on a bailee's liability has been addressed by Pennsylvania courts. In Farley v. Sley System Garages, 187 Pa.Super. 243, 144 A.2d 600 (1958), a motorist parked his car in a parking lot, the car was stolen due to the lot owner's negligence, and a third person was struck by the car as it was being driven by the thief. Although the court held that the lot owner was not liable to the injured third party because he owed him no duty to foresee that a thief would negligently injure someone, it also stated that since the lot owner was negligent in allowing the vehicle to have been stolen, he could not defend an action for damages to the car on the ground of superseding cause. "The reason for the rule is that (the lot owner's) negligence permitted damage to be suffered by the bailed property; (he) therefore violated (his) duty of ordinary care to protect the bailed property." (144 A.2d at 603)
Assuming, then, that vandals did tamper with the sea cock resulting in the sinking of the vessel, this superseding cause of the loss would not relieve plaintiff of liability if it, too, was negligent. The question, then becomes: did plaintiff exercise ordinary and reasonable care to protect the "Ardent" from such danger?
Initially, English testified that he had not had many security problems at the Sailyard (T. 56), but that children and fishermen were sometimes seen on the premises. (T. 283, 285) He stated that plaintiff does not employ a night watchman nor does any other marina in the State Street area of Erie. (T. 265) According to English, it was possible to climb the fence surrounding the Sailyard. (T. 283) He testified that installing an electronic alarm system would not have been a "good idea" (T. 284), although a deposition taken of Harold Paasch, another Erie marina owner, taken on December 22, 1976, states that he had installed such a system in 1972 to protect the boats in his yard. (deposition of Harold Paasch, p. 56) The night before the sinking, English had checked the premises and the gate to the yard was locked (T. 297), but the following morning it was open. (T. 298) All of the Sailyard's customers had keys to the entrance gate (T. 59) or had the combination to the lock. (T. 299)
Raymond Schweinberg, a lieutenant with the Erie Fire Department, testified that upon his arrival at the Sailyard on the morning of the sinking, English had stated that "the guys that were working on it (the "Ardent") may have left it (the sea cock) open" or "some vandals came in." (T. 534) William Romance, another Erie fireman, testified that English said "Somebody goofed up." (T. 548)
Klett testified that English said vandals may have caused the sinking, or that it was an intentional act and "someone must have been out to get him," or that "one of his employees may have fouled up." (T. 808) Joseph Mozdy, a patrolman with the Erie Police Department, testified that on February 25, 1975, he was informed by English that other vandalism had occurred and other items had been taken from the Sailyard on February 16 and 17, 1975, the date of the sinking. (T. 554-55)
At Transcript 623, the court placed the following comments on the record following a view of the Sailyard property:
"The Court: The court conducted a view of the premises at 27 West Public Dock, Erie, Pennsylvania, on January 6, 1978, commencing approximately 12:15."
"The premises front on the roadway leading west from State Street at the Public Dock, and the north side of this roadway is contiguous to the waters of Presque Isle Bay."