The opinion of the court was delivered by: KNOX
When an accident occurs between vehicles moving on land there are usually skid marks, debris and other tell tale items discernible upon the ground or pavement which give a clue as to how the accident happened. When the accident occurs upon water, no traces are left of the movements of the boats or ships prior to the collision. The court, sitting without a jury, has to do the best it can with a mass of conflicting oral testimony together with certain physical facts disclosed by the damage to the boats in the collision. The instant case presents in a microcosm the difficulties involved in making a determination in such a case. As a matter of fact, resolution of the problems in this case, is as difficult as resolution of those in the sinking of the Andrea Doria. If the evidence produced on both sides is accepted, then the accident could not possibly have occurred. And yet we know the accident did occur. We do have the physical facts of the position of the boats following the collision and we do have testimony of unbiased third parties to wit: members of the Coast Guard crew who came upon the scene to engage in rescue operations. Unfortunately much of their memory has been dimmed with the passage of time.
The lawsuit arises from the collision of two boats shortly after midnight on Tuesday, August 3, 1976, in Presque Isle Bay. Presque Isle Bay, more commonly known as Erie Harbor or "The Bay," is a body of water approximately eight miles long lying immediately north of the City of Erie, Pennsylvania and almost completely enclosed by the Peninsula of Presque Isle containing Presque Isle State Park.
This is a piece of land approximately eight miles long in the shape of a lobster claw projecting into Lake Erie. On the east side, there is a channel through which vessels and motor boats enter and exit the Bay going to and from the waters of Lake Erie. There is no question that the waters of Presque Isle Bay are navigable waters; this collision between the two boats occurred on such navigable waters and, therefore, this is a matter properly within the jurisdiction of the admiralty court.
The exact locus delicti is uncertain. The witnesses state that it occurred approximately 250 to 400 yards (i. e. 750 to 1200 feet) southwardly from the entrance to the Presque Isle Marina. This is an excavated body of water located in Presque Isle State Park furnishing anchorage for small boats connected with the Bay itself by a dredged channel. The collision was between two boats, one owned and operated by the defendant Charlene Shedd, an 18 foot Silverline Mercruiser powered by an inboard-outboard motor developing 188 horsepower. The other boat involved was owned by the plaintiff, William Bremmer Jr., a 21 foot MFG boat, known as a "Gypsy E/Z Cruiser," with a 165 H.P. engine which was being operated at the time of the accident by Robert D. Francis. Francis was the third party defendant herein and the plaintiff in 76-150 Erie in admiralty, which case was consolidated with this action. The Shedd boat was operated by the owner herself.
As a result of the collision serious personal injuries were sustained by Rosemary Vershay, a passenger in the Bremmer boat, and by Robert D. Francis, the operator of the Bremmer boat. The suits for personal injuries brought in admiralty by Francis at 76-150 Erie and by Vershay at 77-4 Erie in admiralty have been settled since the trial of this case. The trial was held on four days commencing Monday, September 18, 1978, and terminating Thursday, September 21, 1978, before the undersigned member of the court. As a result of these settlements, we only have left the claim of plaintiff F. William Bremmer, Jr. for loss of his boat and personal property, totalling approximately $ 13,000, and certain minor personal injuries. It appears that Bremmer suffered minor bruises and shock as a result of the collision, was hospitalized and was absent from work for a period of three days.
The evidence shows that Charlene Shedd was boating on the day of August 2, 1976, and at approximately midnight, she picked up one Raymond Anderson as a passenger in the east Canal Basin, which is located east of the Public Dock on the southside of Presque Isle Bay near the foot of State Street, the main street in Erie. She then proceeded to cross the bay into the Presque Isle Marina a distance of approximately a mile and a half. She proceeded to enter the marina and turn around. The boat drifted for awhile and then proceeded to depart the marina through the channel and entered the bay. A short period of time thereafter, the collision in question occurred. As to exactly how it occurred is a matter which remains unclear and confused to the court after having listened to all of the testimony.
The Bremmer boat had five occupants: Bremmer's two minor children, who were sleeping in the forward cabin, Robert D. Francis, the operator who was positioned behind the controls on the starboard side forward of the boat, Rosemary Vershay who was seated to the left of Francis, and Bremmer, the owner, who at the time of the accident was standing near the stern of his boat. Bremmer states that he was putting away fishing gear and preparing for a trip the next day up Lake Erie. There is some indication, however, from the statements made by him to Seaman Eldred of the Coast Guard that he was working on the lights.
In any event, Bremmer and Francis, his operator and passenger, claimed that the collision occurred when they were proceeding in a northwesterly direction and preparing to enter Presque Isle Marina. They had made a slight turn to line up the lights which is necessary for a boat to negotiate the narrow dredged channel leading into the marina when the collision occurred. Defendant Shedd on the other hand claimed that she was going in a southeasterly direction across Presque Isle Bay to the Public Dock when the collision occurred. In other words the boats were approaching each other head on. Nevertheless, after the accident, it was found that the Shedd boat had struck the Bremmer boat either at right angles amidships or at an angle of approximately 120o abaft midships. The Shedd boat had sliced across the Bremmer boat so that a portion of the Shedd boat projected beyond the other boat and came to rest on top of the same. This was their positions as found by the Coast Guard. In other words, if we accept the Bremmer and Francis versions of the accident, Shedd would have had to pass them and, from some point in the rear, turned around and attacked them from the starboard side abaft midships. On the other hand, if we accept Shedd's version of the accident, it could not have happened unless the Bremmer boat had made a turn to port and was broadside to Shedd.
Both parties claim that their lights were illuminated at the time. There is no doubt that the water was calm; it was a warm summer night in August; visibility, which was good, was improved by the light of the half moon. Nevertheless, it appears that neither boat saw the other until a fraction of a second before impact. Bremmer filed a complaint claiming personal injuries and loss of his boat and personal property. There is no question that the Bremmer boat was damaged beyond repair. The defendant claims in her answer that Bremmer is barred from recovery by provisions of the Pennsylvania Motorboat Law, 55 Pa.C.S.A. § 485g (Supp.1978), and by contributory negligence and imputed negligence. Defendant claims that although he had entrusted the actual operation of his boat to Francis, Bremmer, as an owner on board, was the party in control at the time of the collision, and that there was privity or knowledge on his part which would bar recovery under 46 U.S.C. § 183.
The court finds that Shedd had left the marina and was headed in a southwardly direction across the Bay. It is not clear, however, whether her course was such that she was going on a straight line for the Public Dock whence she had come or whether she was headed for a point approximately one-half mile west of that point on the south side of the bay. The court is also uncertain of the speed at which she was proceeding. Plaintiff Shedd insists she was not exceeding 10 mph but the violence of the impact would give rise to an inference that her speed must have been greater than 10 mph and there is also some testimony indicating that her boat was in a planing position. A boat is in a planing position when speed is increased at a certain point and the bow rises out of the water thus interfering with vision ahead. The court, however, considers this testimony to be sheer speculation precluding a definite finding as to her speed. We do find from her own testimony that the bow was elevated. There is also an indication from the testimony of Anderson that she had made a turn to starboard just before the collision. The testimony of Anderson, however, the court finds is so confusing that very little, if any, reliance can be placed thereon.
The court further finds that the Shedd vessel was properly lighted at the time of the collision. It was equipped with a red port running light and a green starboard running light on the point of the bow and a 360o white stern running light in the middle of the stern railing behind the engine. These lights were in operating order and were illuminated at the time of the accident.
The Bremmer boat, which was operated by Francis, was proceeding in the direction of the marina although there is some conflicting testimony from Seaman Overcast of the Coast Guard. Overcast testified that at the time of the collision, according to Bremmer, plaintiff's boat was proceeding from the Perry Monument, which is east of the entrance to the marina, and had turned slightly to port. See Tr. 228, 236. The difficulty with such a course of navigation is that the testimony also shows that the water is very shallow along the north shore of the Bay and that a boat coming in this direction would run the risk of going aground. Again, we have only sheer speculation as to the exact course of the Bremmer boat immediately before the impact. We do find, however, that it had made a corrective turn to port according to the statement given by Francis after the accident. See Boating Accident Report (D Ex 2).
It is also speculative as to whether the lights on plaintiff's boat were illuminated immediately prior to the collision. Bremmer and Francis testify flatly that they were illuminated. However, there is a statement made by Seaman Eldred, that he heard Bremmer say he had been "working on the lights, prior to the collision." Whether the lights were malfunctioning or had been extinguished or were illuminated immediately before the collision is another matter of speculation. The court finds nothing definite to contradict the statement of Bremmer and his operator that the lights were illuminated at the time of the collision.