
    Clare M. SPAULDING et al., Plaintiffs, v. Teresa M. DENTON, Defendant.
    Civ. A. No. 4581.
    United States District Court, D. Delaware.
    Feb. 26, 1976.
    
      John G. Abramo and E. Leigh Hunt, of Abramo, Hunt & Abramo, Wilmington, Del., for plaintiffs.
    Ernest S. Wilson, Jr., Wilmington, Del., for defendant; Carl A. Putz, of Krusen, Evans & Byrne, Philadelphia, Pa., of counsel.
   OPINION

LAYTON, District Judge.

On Friday, December 10, 1971, the Ixtapa, a 52 ft., twin engine diesel, pleasure yacht left Marathon, in the Florida Keys bound for Cozumel, Mexico. Cozumel is an island off the coast of Yucatan, roughly 470 miles southwest of the tip of Florida. For a 31 year old vessel, Ixtapa was well founded. Her wooden hull was of mahogany and had been refastened by “sistering.” The engines were good and the batteries gave adequate power under normal circumstances. She had a Diesel Onan generator, an extra gas tank lashed down on the forward deck, sufficient flares of two types, two anchors, all other required Coast Guard equipment and an inflatable raft. She had three bilge pumps. Whether the engine had its own pump which, by the transposition of certain water hoses, could have converted it into a direct bilge pump, and whether if so, the Captain, Denton, knew how to re-rig these hoses, is unknown. The vessel had Loran navigational equipment, a Pierce-Simpson, 85 watt radio, depth findqr, compass and automatic compass.

There were four people aboard, none of whom could be classified as an experienced, blue water, seaman. Denton, the Captain and owner, was the operator of a marina near New Castle, Delaware, on the Delaware River. He was in the business of selling small boat hulls and outboard marine engines. He had taken a Coast Guard Auxiliary power boating course and a two week course in marine fire and rescue operations. He could operate the Loran and radio, and in 1970 had navigated Ixtapa from New Castle down the Inland Waterway to Key Vaca, generally called Marathon, which required a working knowledge of navigation and boat handling in inland waters. However, according to the evidence, his experience in ' blue water sailing was minimal, being limited to some fishing trips in the Ixtapa, presumably in good weather, as far out from the Florida Keys as 20 miles. He had never sailed from Florida to Yucatan.

Antonio was a resident of New Castle. He had known Denton fairly well for several years, had laid a carpet on the Ixtapa for Denton, and on occasions had talked with him about a pleasure cruise from Marathon, where Denton intended to keep the Ixtapa, to Cozumel and return. His boating experience was minimal.

Rash was also a resident of New Castle. He seems to have been a member of the party more at the instigation of Antonio than Denton, whom he knew only slightly. Rash was a complete landlubber.

Spaulding was the fourth member of the group. There was no testimony as to his qualifications as a seaman.

The trip was for pleasure. Denton furnished the boat and the other three divided the expenses of fuel, food, etc.

Ixtapa left Marathon on Friday, December 10, 1971, in the early evening and arrived at Isla Mujeres, Mexico, on December 12th at approximately 4:00 P.M. There was a following wind and sea, the weather was excellent and the trip uneventful except that, in landing in Isla Mujeres, they apparently missed their landfall by a wide margin, Cozumel being some 40 nautical miles southwest of Isla Mujeres. After clearing customs they decided to spend their vacation in Mujeres, because Cozumel was represented as a tourist “trap.” They spent a week at Mujeres fishing and sightseeing, and while there employed a guide not only to show them the island but also to act as a crew member on the return trip. Just why this happened is not in evidence nor is there any testimony as to whether this person, Juan Pugo (who did not testify), had any experience as a seaman.

The day of departure for Marathon was Saturday, December 18th. They refueled the portable tank and lashed it to the deck, bought a few provisions and departed Mujeres about 4:30 P.M. While it was relatively calm and sunny when they left, the sea and wind increased rapidly and it soon became very rough. There is no testimony as to whether Captain Denton realized that in sailing from Florida to Yucatan, with a following wind and sea, a voyage can be relatively pleasant, and that the return trip, heading directly into the seas, with an average 2V2 knot per hour Gulf Stream flowing against the normal 15 knot northeast wind and waves can be very rough. At the time of departure, Antonio asked Captain Denton if he had checked the weather, and he replied something like this, “Can’t make heads nor tails of what these Mexicans say.” Actually, weather forecasts are broadcast several times daily from Miami and Key West, and under ordinary conditions could be picked up on a good ship’s radio at Isla Mujeres.

Between midnight and 2:00 A.M. Sunday morning, the 19th, the weather became very bad. There was a high wind and probably 7 to 8 ft. waves. Moreover, as previously observed, in a situation like this, where there is a heavy northeast wind blowing against a steady 21/2 knot current from the southwest, very high seas with an unusually short distance between crests, would result. Or, to state it differently, the trough between waves was steep and short which would cause a vessel like the Ixtapa to pound both frequently and heavily.

Sometime after midnight, December 19th, the anchor was torn from its lashing on the deck, causing a dangerous situation until it was finally secured. A rope box 2' x 3' also fastened to the deck was torn loose and disappeared and, much more serious, the forward deck hatch tore loose and disappeared, leaving an aperture open to the seas which, by that time, were occasionally crashing squarely on deck. Ixtapa survived that night, and Sunday morning the weather was a little better. There was occasional sunlight, although the sea remained rough. About noon, Denton made radio contact with the Coast Guard Cutter “Dauntless” and asked it to relay the information to Boot Key, Marathon, that their Estimated Time of Arrival (ETA) would be delayed because of the weather. The Dauntless, in turn, advised Ixtapa to contact Key West directly, which it did. Curiously, no inquiry was made of either Dauntless or Key West as to any report on the weather to be expected the remainder of that day or the next, nor was there mention of the loss of the forward deck hatch. Also, Sunday morning, after strenuous efforts, the fuel tanks were refueled from the portable tank forward, a dangerous task resulting in the spilling of a great deal of diesel oil. In the early afternoon the weather gradually worsened again and it is to be judged that the wind and seas became higher even than the night before. Furniture was being tossed all around the cabin. A drawer with a special latch fell completely out, spilling silverware over the floor, and, finally, the refrigerator which was fastened to the side of the galley broke loose from its fastenings and pitched out into the galley proper. Moving about the vessel was done by holding on to something or crawling. During the afternoon, Rash, who was seasick, lay down on the sofa in the salon and could see forward into the crews’ quarters where spray, and sometimes solid water, was coming in through the open hatch. There is no evidence that during the gradually increasing heavy winds any attempts were made to radio a “May Day” to nearby ships to obtain weather reports, or to make efforts to prepare for abandoning ship such as to obtain drinking water from the tanks while the pressure system was still working, prepare food, etc. About 6:00 to 6:30 P.M., Sunday, Antonio noticed that the Ixtapa was not responding to the helm. Suspecting she had taken on quantities of water, he called Denton who was below. Denton immediately ordered an inspection below. It was found that there was water over the floor boards of the cabin and the batteries had fallen over onto their sides. Although they were still connected by their cables, they were lying in water. Again, no effort to locate nearby ships or send out a “May Day” distress signal was made. Sometime prior to 8:30 P.M., a “May Day” was sent out but the batteries were then dead. Life preservers were donned and preparations were made to abandon ship. The life raft was inflated. All the water available was about 1 qt. in a half gallon container in the ice box. No water could be drawn from the tanks because the pressure system had become inoperative due to the failure of the batteries. While Antonio and Rash were hurriedly gathering supplies and materials below, such as shirts, blankets, food, water, IV2 qts. of rum, fishing tackle, etc., preparatory to abandoning ship, the water was estimated as being 1 ft. over the floor boards of the cabin.

About 9:30 P.M., they tied a line to the life raft and put it overboard at the stern. They boarded the raft together with their few supplies. The water, rum and some other smaller articles were in a small, zippered, overnight bag which was tied to a rope running around the low bulwarks of the raft. When they were all aboard the raft, someone lost the line connected to the stern of the Ixtapa and it slowly drifted away in a “sinking condition.”

The next 8V2 days were a nightmare of high winds and seas, drenching sprays, thirst, seasickness and bitter disappointments. On Monday, in broad daylight, a freighter came directly at them. They fired a smoke flare but the ship passed by no more than 300 yards away without seeing them. Spaulding had been, and was, very seasick and became gradually worse. On the fourth day, the raft flipped completely over, throwing them into the sea. They finally righted the raft and got back on but lost their small supply of water and rum which they had been consuming in small amounts. Spaulding became irrational and on the fifth night disappeared and was never seen again. Denton, who had been a cheerful, encouraging leader during this period, began to show signs of sickness and periodic irrationality and, finally, on the seventh or eighth night, jumped overboard and was drowned. The three survivors were too weak to try and rescue him.

Finally, about daylight on December 28th, the three survivors saw a small island on their port side and by spreading out a piece of cloth like a sail, gradually made shore. Rash was unconscious. Antonio and Pugo saw an abandoned house some distance off to which they staggered. There they found some food and a well and were somewhat revived. Returning to the raft, they found Rash gone. Unknown to them he had been rescued by a Coast Guard helicopter. They were subsequently rescued by another helicopter about 10:30 A.M. and flown to Miami. The Key on which they had drifted was Elliot Island, about seven miles north of the resort of Ocean Reef on Key Largo and some 35 miles south of Miami Beach.

DECISION

In deciding this case, I have attempted not to use hindsight but to view the evidence from the standpoint of a reasonable man in the light of facts then known or which, were capable of being ascertained.

First, I note that Denton failed to use his radio to obtain weather reports either before leaving Isla Mujeres or at any time thereafter. United States weather reports are broadcast several times daily and such reports can be obtained from other ships closer to Isla Mujeres than the United States. He never inquired of the Dauntless or Key West Sunday morning what the weather forecast was. Assuming that Saturday afternoon the weather forecast was for weather sufficiently fair to justify the departure, which is doubtful, had he inquired of the Dauntless, with which he was in communication shortly before noon Sunday and, likewise, slightly later of Key West, he would have learned that ahead of him lay 25 knot winds, 8 foot waves and small craft warnings. The Ixtapa was rated as a small craft. He had passed through very heavy seas a few hours before and lost his hatch, a serious matter. He could have asked the advice of the Coast Guard at Key West as to whether or not to continue or turn back. He knew he had a 31 year old hull and, though a fairly stout one for its age, still subject to the workings of its planking in the heavy seas already encountered and yet to come. A wooden hull is subject to gradual loosening in heavily pounding seas. Denton either knew or should have known this.

Secondly, the forward hatch was lost in the heavy seas after midnight Sunday morning. Whether it was too dangerous to make emergency repairs is not known. We know, however, that they were able to refuel the tanks from the extra tank lashed to the forward deck which would indicate that, even though a dangerous job, some effort could have been made to cover the open hatchway.

Captain North, Plaintiff’s expert witness, was an experienced captain of fishing boats. He had crossed to the Bahamas on many occasions and had made a number of trips on similar sized vessels from Fort Lauderdale to Cozumel. It was his opinion, under the facts, that Denton should not have left Isla Mujeres at all until the weather had abated and, in any event, at some point during the high seas and winds, should have turned about and returned to Isla Mujeres.

I note that Defendant produced no expert witness to challenge the opinion given by Captain North.

Again, as the wind and seas increased later Sunday afternoon subsequent to his having been in direct contact with the Dauntless and Key West, it seems that Denton, as a reasonable man, should have simply turned about and proceeded back to Isla Mujeres with a following wind and sea. And this conclusion is quite apart from the added danger resulting from trying to proceed head on into nearly gale force winds and heavy seas with an open hatch on the forward deck.

I conclude:

(1) Denton failed to make reasonable efforts by way of his own radio to ascertain the type of weather he was going to encounter. Since he struck heavy weather within an hour or so after departing Isla Mujeres, it is almost certain that a forecast of heavy weather to come could have been obtained on his own radio. Under the circumstances, he should either (a) not have left Isla Mujeres at all or, in the alternative, turned back when he found high winds and seas only a short distance out from Isla Mujeres.

(2) Having survived a night (Saturday) of high winds and seas and lost his forward hatch, he should have turned about Sunday morning and proceeded back to Isla Mujeres when the weather was a little calmer.

(3) About noon, when he was in direct contact with the cutter Dauntless and also Key West, he should have asked for a weather report which would have indicated heavy weather later that afternoon (Sunday) and night.

(4) As the winds and seas increased Sunday afternoon, he should have either turned about and proceeded back to Isla Mujeres or, at the least, taken further precautions by making frequent inspections below, preparing food, water and other necessities for a possible abandonment of the vessel, and contacted other ships giving his position and warning of his serious predicament.

Denton was without question not only the owner but in command of Ixtapa. He gave the orders and did the navigating. He owed at least the duty of ordinary care to the others on board. Dugas v. National Aircraft Corporation, 310 F.Supp. 21 (E.D.Pa.1970), aff’d on relevant part 438 F.2d 1386 (3rd Cir. 1971). This tragedy occurred on the high seas more than one marine league from the shore of any state or the Territories or dependencies of the United States.

Denton’s failure to use ordinary care under the circumstances constituted negligence as outlined under paragraphs 1-4, supra. In particular, his failure to inquire of the Dauntless and Key West late Sunday A.M. as to the weather to be expected ahead of him and, thus, proceeding on into the face of storm warnings with a vessel which had already taken a severe pounding and was missing its forward hatch, or a portion thereof, constituted clear negligence which was the, or one of the, proximate causes of this disaster.

What has been said heretofore shall be taken to constitute findings of fact and conclusions of law.

Judgment of liability for Plaintiff. Plaintiff will please submit order. 
      
      . “Sistering” consists of fastening new ribs alongside the old and screwing the existing planking to the new ribs.
     
      
      . This seems to have been the result of a substantial error in navigation.
     
      
      . Apparently, there were a number of ships relatively nearby.
     
      
      . One witness thought Ixtapa had struck a submerged object causing her to founder. More likely, this was an extra hard jolt caused by the so-called “seventh wave,” or an unusually high wave. In any case, I do not find that she struck an object because the rate of water filling her hull did not suddenly and drastically increase.
     
      
      . The hatch was originally a conventional, flat, wooden cover. After the Ixtapa was purchased, Denton had a round hole sawn into the hatch cover and inserted a round plexiglass dome over the hole. Whether the whole hatch cover was torn off by the waves or just the dome is not clear from the testimony. In any case, there was an opening left on the deck through which Ixtapa was taking water.
     
      
      . A ship in the vicinity where Ixtapa was heading estimated wind speed to 37 M.P.H.
     