Petition for Writ of Certiorari — Bencel v. Frost

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Supreme Court of the United States

. Ocroser TERM, 1968 | .

No 307

JOHN F. DAVIS, CLERK

ROSE H. BENCEL, Administratrix and Administratrix’ ad Brosequendum °

of the Estate of THomas JosepH BeENnceL, deceased, et al.,

Petitioners,

vs.

WILLIAM FROST and Mrs..MICHAEL J. SIMSON, Administratrix and ,

Legal Representative of the Estate of CaPrain MicHaEL J. SIMsoN,

deceased, ti

Respondents.

In THE MATTER OF THE PETITION ~ 0

of _

Mrs..-MICHAEL J. SIMSON, Administratrix and Legal Representative of

the\Estate of Caprain MicHaEv J. SIMSON, Deceased, Owner of the Motor

- Boat. “One More”, for Exoneration from or Limitation of Liability,

Respondents. ,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

‘THIRD CIRCUIT .

DRA AAT ASEM TEARS

NATHAN BAKER,

Attorney for Petitioners,

' 1. Newark Street, ~

Hoboken, New Jersey.

BAKER, GARBER & CHAZEN, - .

Proctors for Libellants-Petitioners.

Soe 63

Adams Press Corp., 11 Commerce Street, Newark, N. J.—Market 3-8611-12

———_——

r) is :

TABLE OF CONTENTS

| | PAGE

Tue OPINIONS OF THE Courrs BELow....... an aa. 2 |

| JURISDICTION... .46¢ 00 ee eee igneeeas geoeesass ee

Questions PRESENTED. . sete eee e ere eeces Pererer Tee 2

Srarurss InvoLven. lassantexesuts ceaaees fare

> Srarement OF THE CASE. ..... cay Sena eee,” Vier 3

" Reasons FOR THE ALLOWANCE or THE WRIT.....--.... “10

Concuusion : Visa hens pak ele aesa (ibndeoueinens ‘hes 28

| APPENDIX: .

. A—Findings of Fact and ‘Conclusions of Law.. : la

- B—Opinion of the Court......... aeauevuanenes 100 :

CaO | os 5 a0 8 6 65a ks Se wevecacies Binate'n so 12a

Cases Cited

Austerberry v. United eat 169 F. 2d 583 (6th Cir.

neem Me S MLL TAA RR 16

- Bencel’s Estate, In re, 78 N. J. Super. 545, 189 A. da | .

733, (App. Div. 1963) ........ eee eee eee eee es 6, 7; 13. .

Blamenthal v. United States, 306 F.. 2d 16 (3rd Cir.

EE ATRESIA AIOE sienna REDE eee ‘16

Bogan, Petition of, 103 F. “Supp_755 4. CN.

OSD) ee cereteccqesesensseseeeseettetaseeeneees 16 |

Clevenger v. Star Fish & Oyster Co., 325 F. 2d 397 | | :

(th: Cir. 1968) = 55... ce nsee penn ee tecee-teeeeges 4

Gutierrez v. “Waterman Steamship Corp.,\373 U.S. -

206,83 S. Ct. 1185, 10 L. Ed. 2d 297 (1963).--ece 26

ii. TABLE OF CONTENTS

PAGE >

Haasman v. Pacific ‘Alaska Air Express, 100 F. Supp. * >

1 (D. C. Alaska 1951), aff *d per curiam, Des Marais

v. Beckman, 198 F. 2d 550 (9th Cir. 1952), cert. den.,

344 U.-S..922, 73 S. Ct. 388, 97 L, Hd. 710 (1952)... . 18

Henningson v. Bloomfield. Motors Inc., 32 N. J. 358,.

161 A. 2d 69 (1960), 75 A. L. R. 2d 1 (1961)..-..-. 26°

os Jesionowski v. Boston & M. R.R., 329 U. s. 452, 67

S) Ct. 401, 91 L. Hd. 416 (1947)...... 222s eee es ee, tan

Kermarec v. Compagnie General Transatlantique, 358 ©

U.S. 629, 79 S. Ot. 406, 3 L. Kd. 2d 550 (1959)..... 22

Leathem Smith-Putnam - Navigation Co. v. Osby,. 19 a

F. 2d 280 (7th Cir. 1935), cert. den., 296-U. e 653, .

56 S. Ct. 370, 80 L. ‘Bd. 465-(1935)...--.2-08e e+ 3,17 -

Mitchell v. Trawler Racer Inc., 362 U. S. 539, 80 S. Ct. | a

> eee 926, 4 L. Ed. 2d 941 (1960) ouneeiwes apaepeawew®s 23,

Murphy vy. Hutzel, 27 F. Supp. 473 (E. D. Pa. 1. 1939)... .

Rose v. Stephens & Conduit Trans. Co., 11 F. Rep.

— 438 (D. C.N. Y. 1882) .. cae Whwmecccteedgccseesens exse 167

Rothman v. ~U-Steer-It Inc., “247. F. 2d 803 (ath Cir.

NODEY as ve coe cins =< c restore perme a eastey 7

The Columbia, 25 F'. 24 516 (E. DN. Y. 1927), aff'd.

* per curiam; 25 F. 2d 518 (2nd Cit. 1928), cert. den.,

| 277 U. 8. 599, 48S. Ct. 530, 72.1, Ed. 1005. (1928) .. 17

The Omar D. Conger, 1 F. 2d 732 (E. D. Mich. 1924).. 17

, The Rambler, 290 F. 791 (2nd Cir.-1928).:...%..- >: £3

Walker v. Harris, 335 F. 2d 185 (5th Cir. 1968).. 11, 19; 27

< ‘Statute Cited | | . e

28 U.S. Code:

See. 1254(1) Ce le ee we 9

Mat WRIRY ioc ecc les ncsaonce: cee eee eke 2

——

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—_ r ners

ae Lg TABLE OF CONTENTS ae came

PAGE: ;

Text Cited ° Sy

1 © yamer & Friedman, Froducta Liability |

Sec. 16.05 (2). state teen teen teen eee eden eee ye 26

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IN THE

— Supreme Court of the Mnited States

Ocroser Term, 1964

r ieee

No. es an

—+ ©

Rosa H. Benczt, Administratrix and Administratrix ad

Prosequendum of the Estate of Thomas Joseph Bencel,

deceased, e¢ al., *— 7 : ,

| vs.

_ Wriutam Frost and Mrs. —— J Simson, epivistrs-

trix and Legal Representative of the Estate of Captain

* Michael J. Simson, deceased,

| Respondents.

In THe Martrer oF THE PETition

° ae Pe =

Mrs. Micuamn J. Smwson, Administratix and Legal Repre-

~ sentative of the Estate of Captain Michael’ J. Simson,

Deceased, Owner of the Motor Boat ‘‘Onm More’ for

Exoneration from or Limitation of Liability, _

lie Respondents.

—

PETITION FOR WRIT OF CERTIORARI TO THE —

UNITED STATES COURT’OF APPEALS FOR THE

: ‘THIRD CIRCUIT Ry if

Petitioners, Rose HL Bencel, Margaret Amn Batson, :

~—“Stella Bencel, Mary Husti Vegh, and Julia Monti, Admin- ©

‘istratrices, pray that a writ.of certiorari issue to review

Petitioners, —

the judgment of the United States Court of Appeals for

_the Third Circuit in the above-entitled consolidated mat-

ters... |

a The Opinions of the’Courts Below

libek,and granting the petition for exoneration is printed

ae: inpthe Appellants’ Appendix in the Court below, and is

unreported. It is also printed as‘Appendix A hereto.. .

‘The opinion of the Court of Appeals for the Third Cir-

' euit, printed as. Appendix B hereto, is not yet reported.

eae _ Jurisdiction ce ;

The decision’ and judgment of the Court of Appeals for _

the Third Circuit, sought to be reviewed, printed as Ap-

pendix C hereto, was decided and entered on March 31,

4965.

“The jurisdiction of this Court is found in 28 U. S. Code,

Sections 1254(1) and 2101(c). .

Questions Presented

1. Whether -or. not, where there was undisputed proof

that a pleasure fishing cruiser was lost at sea with all hands

as a result of a disaster on board which would not occur in

the ordinary. course of events, an inference of negligence

arises and where there was no explanation concerning the

‘manner in which the accident happened which would ex- -

culpate the master of the vessel, an admiralty judge must

‘fnd in favor of the representatives of guests who were on ~ ~

' ‘board the vessel to engage in fishing? :

- Whether the Court of Appeals in, affirming the judg-

_ ment of the District Court below erroneously differed with

_ - the traditional. view of the Admiralty Law with fespect to -

the application of the doctrine of res ipsa loquitur, as set

all

7. 7

forth ; in — case of Leathem Smith.Putnam Navigation Co.

v. Osby, 79 F. 2d 280 (7 Cir. 1935), cert, den. ‘296 U. S. 653,

56 S. Ct. 370, 80 L. Ed. 465 (1935), and The Rambler, 290

F. 791 (2 Gir. 1923):7

3. Whether membérs of a fishin alg traditional

maritime activity—are entitled to the’ warranty of sea-

a worthiness, an important question in maritime law not yet

decided-in this ‘Court. mes :

Statutes bisnisteied

«46 U.S. C. A. Sée. 188(a). The liability of the

owner of any vessel, whether American or foreign,

' for any’ embezzlement, loss, or destruction by any

-person of any property, goods, or merchandise

/ Shipped. or put on board of such vessel, or for any

loss, damage, or injury by collision, or for any act,

matter, or Ahing, loss, damage, or forfeiture, done, .

occasioned, or incurred, without the privity or knowl-

edge of such owner or owners, shall not, except in

the cases provided for in subsection (b) of this sec-.

& tion, exceed the amount or value of the interest of

such owner in such vessel, and her freight then pend-

me,””

Statement of the Case

‘The appeal below was from a decision of a judge, sitting

in admiralty without a jury (63a). The ‘trial court found

’ «that ‘‘there has been no evidence to explain the nature and

‘cause of the fire which destroyed the ‘One More’ ’’ and

the respondent was not liable (61a). Three widows of three

- guests and the mother of another guest. aboard the ‘‘OnE

Morn’’ had filed a Libel and Complaint (1la). The re-

‘spondent, Mrs. Michael J. Simson filed.an Answer and also

filed a Petition for _Liqnitation of Liability (22a; 29a).

Claims for the three widows, the'mother, and the widow of ©

another guest of the ‘‘Onw More’’ were filed in the limita-

tion proceeding (46a; 47a; 49a; 50a; 51a). At a pretrial

conference, the action against William Frost. was dismissed

on consent (54a). | |

The Court heard all issues in a consolidated action (54a).

On July 19, 1961 the decedent,- Captain Michael J. Sim-

son, was the owner of the motorboat ‘‘Onz More’, a 26 7”

wooden hull, enclosed cruiser, Chris Craft, built in 1951 .

and propelled by twin 95 h.p. inboard gasoline engines. It

was fitted with-a small cabin, raised wheel stand and after

cockpit (87a; 127a; 128a; 175a; Exh. L-3) (294a). The boat

was purchased by Captain Simson in 1958. In the fall of —

1960 the boat was moved to Hoffman’s Anchorage in Bri-

elle, N. J., where it was then kept (248a). The boat was

used by Captain Simson as a pleasure craft and for sport

fishing (295a). Prior to July 19, 1961, Captain Simson in-

vited the deceased, Joseph Arthur Bencel, Lewis George

Batson, Thomas John Bencel, Michael Joseph Husti and

George Monti, to accompany him on a tuna fishing trip

out of Brielle to deep waters in the Atlantic Ocean some

20 miles off shore (114a; 120a; 205a; 206a; 222a; 223a).

The decedents were business acquaintances of Captain Sim-

son, who owned and operated a floor covering business in

. ‘Denville, N. J. The six men arrived at Hoffman’s Anchor-

age in Brielle during the evening of July 18, 1961 and re-—

mained at the anchorage overnight (206a). During. the

evening of July 18th certain arrangements were made by

Captain Simson with Raymond Caire, owner of the ‘‘ Fin

Foun’’, a pleasure boat also docked at the Anchorage. It

was the intention of both boats to fish for-tuna off Barne-

gat Light in a location known as “The Ridge’’, approxi-

mately 20 miles out to sea (205a; 223a). Arrangements

were.made for hourly radio’ communication between the

- two boats (235a; 236a). D

* Qn the morning of July 19, 1961. at approximately 5:00

A.M., Captain Simson departed Hoffman’s in command

of the ‘‘Onp More”’ with the five decedents aboard as pas-

sengers (227a). The boat was seen leaving by Raymond

Caire, who also left on the ‘‘Fix Fun’? less than 5 or 10

minutes after. Before the boats left Raymond Caire spoke

with Captain Simson on the radio and transmission was

good (226a). The weather.on July 19, 1961 at Brielle and

offshore was good, the: seas quite calm and visibility in

haze was variable from one to five miles (228a).

‘At about 6:45 A.M., or one hour and forty-five minutes

after departure, at a distance of some 15 or 20 miles out

on a course of 135° magnetic from Manasquan Inlet, Ray-

mond Caire in his boat ‘‘Fin Fun’’ passed by within one

hundred yards of the ‘‘Ons Morg’’ (229a). Caire spoke

by radio to the ‘‘Onz Morn’’ (231a; 232a; 237a). This was |

the last contact anyone had with the ‘‘Onz Morg’’ (233a)

although Caire tried unsuccessfully to call Captain Sim-

son hourly for.a few hours thereafter (237a; 238a). When ©

the ‘‘Fiw Fon’’ passed the ‘‘Qnz Morw’’, the ‘‘One Morp”’

was traveling at 10 or 12 miles per hour (230a; 231a)._-

The ‘‘Owe Morsz’’ did not return to Hoffman’s and upon —

its failure to return a search was instituted under the su-

pervision of the U. S. Coast Guard, and this commenced

on the morning of the 20th. Mr. Hoffman Sr. notified the

Coast Guard which sent out a general radio call to all

vessels to report. if the ‘‘Onz More”’, or a boat fitting its

description, had been seen. Planes were also sent out and

from July 20th until July 30th, 1961 the Coast Guard me- ©

thodically searched the Atlantic Ocean from Block Island

to the Maryland-Delaware line. Naval vessels and air-

craft in the area also assisted in the search which covered

20,000 square- miles per day, and a total of 78,000 square

miles were searched in the 10 day period. The search was

unsuccessful and terminated July 30, 1961 (17a; ‘172a).

On August 18, 1961, a piece of wreckage was found 12

* miles east northeast bearing 60 degrees true from the Bar-

negat Light vessel, which: was the same. gerieral area in <

which the ‘‘On» Mors’’ was:headed when last. seen (170a;

172a). The wreckage was produced in court (Exhibits L-1

and L-2). This wreckage was the, remains of the bow sec-

tion of a Chris Craft cuiser consisting of partial port

and starboard gunwales, a very small portion of the stem

and stemhead and some small sections of hull planking.

The interior of the bow section was badly charred but the

exterior was not; the starboard gunwhale was badly charred

both inside and outside; the starboard gunwhale was _

charred on the exterior to within three and one-half feet |

of the stem, and the interior was. extensively charred all

the way into the bow section (245a; 2468). ?

_ This wreckage was positively identified as coming from

the ‘‘Onm Norn’” by Lt. Cmdr. Walter B. Alvey, a Coast.

Guard investigating officer and Hareld Frost, an employee

of Captain Simson who was quite familiar with, the ‘‘Owx

Moris” (173a; 175a; 138a; 135a). The positive identifica-

tions were made independently of one another. Lt. Cmdr.

Alvey verified the New Jersey motorboat registration of

the wreckage from the paint differences under the plastic

- numerals on the bow which had melted from the fire, and

the number coincided with the registration number for Cap-

tain Simson’s boat, the ‘‘Onp More’’. Lt. Cmdr. Alvey ©

was assisted in the identification by information from Mr.

Frost concerning tacks put in the bow section by him (173a;

175a). Mr. Frost conclusively identified the wreckage from

copper tacks he had installed when he put. on new canvas

on the bow section a year and one-half before (131a).

No othet trace of the ‘‘Onp More’’ was ever recovered,

nor were Captain Simson and his five passengers ever seen

again, nor have their bodies been recovered. The deaths

of all six men have previously been adjudicated. In Re

Bencel’s Estate, 78 N. ‘J. Super. 545, 189 A: 2d 733,¢App.

Div. 1963). It is evident from the remains of the ‘‘Onz -—

Morn’’ that the boat burned and was destroyed by a fire

of great intensity (Exhibits L-1, L-2). The ‘‘Onp Morp’’

was not equipped with a stove or other cooking equipment

and no propane was carried aboard the boat (92a; 140a;

337a). The ‘‘Onm Morn’’ was equipped with four fire ex-

tinguishers. One was located under the boat’s rear seat,

another at the steering wheel, one was in the cabin and the

fourth was in the cockpit at the bow of the boat (305a;

306a). Going from the bow toward the stern the ‘‘Onz

‘Morn’’ had two bulkheads. The first was about 20 inches

from the tip of. the bow. This bulkhead formed the rope

locker. About 15 feet aft of the first bulkhead was a sec-

ond bulkhead. The second bulkhead was immediately for-

ward the engines (84a; 139a). Behind the second bulkhead _

was the engine compartment which; was covered over by a

wooden hatch which also served as part of. the main deck.

Both bulkheads were relatively watertight and would be

airtight (179A). There was one gas tank which. was under-

neath a seat in the rear of the boat; made of Monel of about .

60 gallon capacity (139a; 140a). A single fuel line came—

_ off the top of the gas tank (314a). The line then bisected

» and each branch ran off to the fuel'pump of each “or

(403a).

Lt. Cmdr. Walter Alvey, investigating ‘officer for: the

United States Coast Guard, whose duty was to determine ©

the cause of the disaster, and who investigated many ma-

rine disasters, testified that from the observation of the

charred remains of the ‘‘Owz More’”’ he found that the fire

commenced in or near the engine compartment (180a) and ~

that the probable cause was ati explosion prior,to the fire

' .(181a). It was his opinion that an explosion immobilized

the persons on board to permit the fire to gain headway in

order for it to be so extensive {182a). He excluded every

other probable cause.. A small fire without explosion of

gasoline vapors would have been confined to the engine

. space. A small fire would have been easy to extinguish by

six men with the fire extinguishers on board (199a). It was

his further opinion in the.absence of any inflammable ma-

terials or explosive materials on the boat other than gaso-

line, that a collection of gasoline vapors was ignited and

was the probable cause of the explosion (183a) and there

was no other probable cause (199a).

John C. Loeser, a Marine Surveyor, viewed the wreck-

age (Exhibit ‘‘L-1’’) and testified that. the fire originated

in the engine corspartment, that it was a most intense fire

which resulted from ignition and explosion of gasoline Va-

pors (250a; 256a), and that. there could not be any other

probable cause (252a; 256a). . nee

The source of ignition of gasoline vapors in the engine © :

compartment is present in the form of a spark from the

starter when the engines are being started and: while, the .

engines are operating from the generator and distributor

(257a; 279a). geet

‘ These 2 experts testified that the sole probable cause of

the loss of the ‘‘Onz More’’ was an extensive fire which

‘was caused by the ignition and explosion of an aecumula-

tion of gasoline vapors in the engine compartment. Cap-

tain Simson was an experienced boat handler and operator.

_- He had at least ten or twelve years experience in boating

_with both outboard and inboard boats (299a; 123a). He

was familiar with both the construction and the operation .

of boats. He had built from a kit a 16 foot Chris-Craft |

type boat which he owned for two years prior to acquiring

the ‘‘Onz More’’ (299a). He was aware of the dangers

_ of gasoline accumulating in the engine compartment on his

vessel and of the hazardous situation which exists if fumes

are allowed to accumulate (15la; 307a; 347a; 35a). The

9 v°

ignition range for typical marine gasoline is between about

1% % gasoline in a gas-to-air mixture and about 6% gaso- |

line in a gas-to-air mixture (373a). It is customary, and

- necessary as a safety precaution, for the operator af a

boat, prior to starting the engines to open the hatch to

. the engine compartment, and to smell and inspect the bilge.

This procedure is conducted for the purpose of inspection.

and ventilation of the engine compartment.

It is customary and necessary as a safety precaution ae

follow this procedure ‘before commencing a trip-and | also

if the engines have been stopped for-any period of time

before starting again (15la; 3 307a; 347a; 355a).

The followin statement, which appears in ‘‘ Piloting,

Seamanship and Small Boat Handling’’ by Charles Chap-"

man, was conceded to be authoritative and generally accu- .“)

rate by respondent’s witnesses (329a; 330a; 388a) :

‘Probably the first thought that comes to mind is that

.’ of safeguarding against fire. Fire is usually trace- <

* ‘able to the galley or,. engine room where faulty in-

stallation, -1 improper * equipment or carelessness in

operation are the direct cause. All of these things

are under our control. Gasoline fumes mixed with

air form an explosive mixture. These fumes being

heavier than air, find their way to the bottom of the

bilge. The obvious answer is prevention—make it

impossible for gasoline either in liquid .or gaseous ©

-form to get into the bilge in the first place. Then |

. keep the bilge. clean and ventilate the engine com-

partment thoroughly and there will be nothing that

can be ignited. Leakage of liquid gasoline into the

bilge can be prevented by proper installation, using

_ strongly-built gasoline tanks, copper tubing for fuel

lines, leak-proof connections, tight fittings, and —_—

lengths of flexible metallic fuel ees to take care of om

vibration.’’ 2

Michael. J. Simson was the captain atid master of tho

“Own Monn’? on July 19, 1961 and was the only person on — _

board qualified to operate the boat and he at all times op-

erated ‘and coritrolled. the boat. The engine compartment

was an enclosed area of the boat used only in connection

with the operation of the boat by the captain and master.

Among other thing’, the Court specifically fotind that

the vessel ‘Ons Mors’? was used as a pleasure bot and

for sport fishing (55a, Par. 1). The sea was calm at the

time. the vessel departed (56a, Par. 6). The wreckage sub-

sequently recovered was from the ‘‘Onp More’? (57a, Par.

14). All men perished at sea ‘beyond a Marine League

_ (Sia, Par, 17). The vessel was destroyed by fire (57a, Par.

18). The Court concluded that since there was no evidence

“to explain the nature and cause of the fire’’ the doctrine

- of res ipsa loquitur does not&apply (61a). . The Court also

held that the petitioners’ dededents did not belong to the

class of persotis entitled to a seaworthy vessel under mari- -

time law (59a). A decree in favor of respondent Mrs.

- Michael J. Simsgn was entered (68a). ~

Reasons for the Allowance of the Writ

1. ‘This case involves a fundamental question in admir-

alty law dealing with the problem of. proof where there was

a disaster at sea—a fire and explosion—resulting in the |

sinking of the vessel with the loss of all persons aboard,

including the owner and captain. By their very nature, |

such disasters rarely leave evidence of their cause, the sea

- itself usually erasing the evidence. Where there are no sur-

vivors, as in this case, there are no eyewitnesses to tell the

story of what happened. The issue then is who is to be

penalized by the paucity of proof, who has the burden of

persuasion, the owner and operator of the vessel or the

representatives of the innocent persons who were invited

to ride on the vessel by the owner and operator.

The owner of the vessel who was also the. operator or

captain, and who invited the guests aboard, was in the

best position to take the necessary precautions to prevent

accidents and must agsume the responsibility for any, dis-

asters which in the ordinary course of events do not hap-

pen in the absence of negligence. The doctrine of -res ipsa

loquitur originated from.the recognition thaf justice re-_

quired that those in the best position to do so should be

_ held to-béear the burden...‘Tlie owner-operator of the vessel

is also in the best position to distribute the loss through

insurante. Balancing the equities, the loss should be borne —

by the owner-operator of the vessel rather than the repre-

sentatives of the innocent persons who were invited to ride —

on the vessel, -

While the vessel was in the dxeju cjusive control of’ the cap-

tain-owner an extraordinary | fire’ and explosion occurred.

Under the doctrine of res ipsa loquitur an inference of neg- _

ligence is warranted, .which has not been explained.or re-

butted by the respondent.

. This argument substantially accepts the fact findings | |

made by the trial judge sitting in admiralty without a jury.

However, petitioners.contend that the evidence as a matter

of law compels an inference of negligence by the applica-

tion of the doctrine of res ipsa loquitur, or as a matter of

burden of proof and circumstantial evidence.

In the case of Walker -v. Harris, 335 F. 2d 185 (5 Cir.

_ 1964) C. J. John R. Brown stated:

‘The District Court held that a 52-year old wooden

inland tug which sank at sea ‘in wind and weather

which, although rough, she ought to have antici-

pated, was nonetheless seaworthy. Consequently,

the Court granted the vessel owner ’s right to limit

liability, 46 U. S. C. A. §§183-189, and, for double

“nicasure, held the owner] free from nogligence. his

‘decision encompassed also the ruling that’ the life-

bout was sufficient, that is, seaworthy, even though

~ none of the essential gear or supplies was tied down

or stowed to prevent accidental loss when the life-

‘boat capsized i in the effort to launch it after the ma-

nila fall in a boat davit parted apparently from old

age. By this appeal the two survivors and the es-

tates of two who did not complete the harrowing 110

hours in the lifeboat, attack: these actions. We re-

verse and remand for computation of damages.

**All counsel in briefs and argument seem preoceu-

pied with a question whether the Judge erred in de-

clining to hold that the tug was unseaworthy (with

the privity and knowledge of the owner) because of

(a) deficient pumps and (b). the inadequacy: of the

glass in the sash-type windows in the deckhousing.

As we approach the case, all of these things’are now

unessential since on basic principles, the evidence as

a matter of law compelled the conclusion of negli-

gent unseaworthiness causing the deaths and tnjur-

ies. This also greatly simplifies our discussion of

the evidence. As a preface we emphasize that while

our result is contrary to that of the District Judge,

we reach it without eg? as clearly erroneous

- fact findings made below. * * *’’-(p. sid (Italics

ours.)

Likewise, the dispute here is with the conclusion of law

made by the trial judge from the facts that (61a)

‘<1. Since there has been no evidence to explain the

nature and cause of the fire which desfroyed the ‘One

‘More’ and since there is no evidence warranting

more than speculation as to both the nature and

‘13:

cause of the catastrophe, :the doctrine of res ipsa

loquitur does not apply.” - 7

- The undisputed facts disclose_{ ttiat Captain Simson . was

the owner of the boat arid invited 5 of his business ac-

quaintances to accompany him on a tuna fishing trip out of

Brielle, N. J. ‘The boat ‘‘Onm Mone”’ with the-6 guests~

aboard left at about 5 A.M. on July 19, 1961. Before it left

Captain Simson was in radio communication with another —

- boat ‘Fix Fun’’ and transmission was good. The weather

was good, the seas.calm and visibility from 1 to 5 miles.

One hour and 45 minutes after departure the pilot of. the

“Win Fun’? spoke by radio to the ‘‘Onp More’’ while they -

were about 100 yards apart. This was the-last contact that

anyone had with the ‘‘Onm Monre’’, which disappeared. A

- search was instituted under the supervision of the U. 8.

Coast Guard. On August 18, 1961 a piece of wreckage

was found in the general area in which the ‘‘Onz. Mone’. —

--yas headed when last seen.. It was the remains of the bow

gection of a Chris Craft cruiser extensively charred. it

was produced in court and marked as an exhibit (L-1 &

L-2; 136a). This wreckage. was positively identified as

part of the ‘‘Onm Morp’’ by the numerals on the bow which -

-had melted from the fire and which coincided with its-reg- ©

istration number and from other ‘positive -identification by

‘Harold Frost, an employee of Captain Simson who was fa-

miliar with the ‘‘Onz More’’: No other trace of the ‘‘Omz

Morp’’ was ever recovered. Captain Simson and his 5

‘guests were nevér seen-again nor have their bodies been

recovered. The deaths of all six men have previously been .°

adjudicated. In re Bencel’s Estate, 73 N. J. — 549,

~ 189 A. 24 733 (App. Div. 1963). -

It is undisputed that.all of the deceased ‘tatinenies per-

ished at sea beyond a Marine League on July 19, 1961 as _—

a direct result of the loss- of the “Oxe Moze’’. It-is also .

3 extinguishers. &

e 14 {

evident from: the remains of the ‘ONE Mor’? that. the boat

- burned and was destroyed by.a fire of great intensity. It

is also undisputed that the vessel was not equipped ‘with a

stove or other cooking equipment and no: propane gas was

carried aboard, and that it 1 was equipped | with four fire

‘

There was testimony that when the boat» was put back

into the water the last of May or first part of June 1961 it

was in good condition (107a) after one motor was winter-

ized and the other motor remoyed and rebuilt (89a). The

witness, Harold Hoffman, -Jr. testified that he did not see

the boat operate and he received no complaints and as far

as he knew the engines performed: well (90a). He exam- ‘

ined the fuel lines which he said was in good condition

(110a to.-11la) but-did not examine the gas tank (111a)

which was 6 feet to the rear of the engines (112a).

Another witness, William Frost; an employee. of Captain

Simson testified that one engine was overhauled because it,

had reached an age that just required overhauling (142a)

that the boat was 9 or 10;years old ‘(143a) and that the last

time he had seen the boat was in-June 1961 (121a). Other .

| withesses for respondent testified to the-good condition or ©

seaworthiness of the‘ vessel without ws Sie examination as a.

basis for the testimony. uy

Under cross examination of the siapbeiiaite witness the

following statement from. the book ‘¢*Piloting Seamanship

and Small Boat Handling’” by Charles Chapman was con-

ceded to be authoritative and accurate cae The oo

portion states (329a) :

_ “Probably the first thought that comes, to idan iethat |

, _— “of safeguarding against fire. Fire is ‘usually trace- -

able to the galley or engine toom where faulty in-

stallation, improper equipment or carelessness in

operation are th: direct: cause. All de these things’

r 4

“ 7 a

are under our control. Gasoline fumes mixed with

air form ah explosive mixture. These fumes being

- heavier than air, find their way to‘the bottom of the | ~

bilge. The obvious answer is prevention—make it

impossible for gasoline either in liquid or gaseous

. form to get’into the bilge in the first place. Then

keep the bilge clean and ventilate the engine com-

partment thoroughly and there will be nothing that

can be ignited. Leakage of liquid gasoline into the

bilge can be prevented by proper installation, using

strongly-built gasoline tanks, copper tubing for fuel’

lines, leak-proof connections, ‘tight fittings, and

lengths of flexible metallic fuel hose to take care of —

vibration.”’ (Italics ours.) .

The vessel did not have a arip collector whiclr-would: ’

prevent gasoline from going into the bilge (33la). It did

not have a copper tube from bottom of pan to the intake

manifold to suck leakage back into the engine (331a).

Lt, Cmdr. Walter Alvey is an investigating officer for

the United States Coast Guard. -It was his duty to deter-

mine the cause of the disaster. He investigated many ma-

_ rine disasters, and he testified that from the observation .

of the charred remains of the “ONE More”’ he found that

the fire commenced in or near the engine compartment

(180a) and that the probable cause was an explosion prior

.to the fire (18la). It was his opinion that an explosion

immobilized-the persons on board to permit the fire to gain’

headway in order for it to be so extensive (182a). He ex-

' eluded every other probable cause (199a). A small fire .

without explosion of sasoline vapors would have been con-

fined to the engine space. A small fire would have been’ |

. easy to extinguish’ by six men with the fire extinguishers~

on ‘board (199a). It was his further opinion in the absence

of any inflammable materials or explosive materials on

. a 16 2

ee |

the boat other than gasoline, that a collection of sition

. vapors was ignited and was the probable cause of the ex-

plosion (188a). :

John C. Loeser, a Marine Surveyor, viewed the wreck-

age and testified that the fire originated in the engine com-

partment (250a). He stated that it was a most intense fire

which resulted from ignition and explosion of gasoline

vapors (250a; 266a), and that there could not be any other

probable cause (252a; 256a).

This summary of the essential facts show that while the

vessel was in the exclusive control of the captain: owner,

an unusual evént, # fire and explosion occurs. This gives -

rise to the doctrine of res ipsa loquitur and an inference

of negligence arises, which has not been explained or re-

butted. This satisfies the claimants’ burden of proof. Aus-

terberry v. United States, 169 F. 2d 583 (6 Cir. 1948);

Petition of Bogan, 103 F. Supp. 755 (D. C. N. J. 1952).

Compare Jesionowski v. Boston d M. R.R., 329 U. 8S. 452,

67 S. Ct. 401,.91 L. Ed. 416 (1947); Blumenthal v. United ©

States, 306 F. 2d 16 (3 Cir. 1962).

2. The Court of Appeals, in affirming the judgment be-

low, erroneously differed with the. traditional view of ad--

miralty law with respect to the re of the doctrine

of res ipsa loquttur.

It is recognized in maritime law that when an unusual

event such as an explosion occurs on a vessel in the con-

trol of a party charged with negligence, an inference of

negligence arises. In Rose v. Stephens & Conduit Trans.

Co., 11 F. Rep. 438 (D. C. N. Y. 1882), — Walines,

| stated at page 439:

‘<* * * As boilers do not usually explode when ‘they are

‘in a safe condition, and are properly managed, the

inference that the boiler was not in a safe condition,

or was not properly managed, was justifiable, and

the instructions to the jury were correct.’’ ~

In the case of The Omar D. Conger, 1 F. 2d 732 (EB. D..

Mich. 1924), the Court applied res ipsa loquitur in steamer —

explosion case. See also The Columbia, 25 F. 2d 516 (B. D..

N. Y. 1927), affd. per curiam 2% F. 2d 518 (2 Cir. 1928),

_ cert. den. 277 U. S. 595, 48 S. ‘Ct. 530, 72 L. Ed. 1005 (1928) ;

Leathem Smith-Putnam Navigation Co. v. Osby, 79. F. 2d

280 (7 Cir. 1935), cert. den. 296 U. S. 653, ali Ct. 370,

80 L. Ed. 465 (1935).

In the case of The Rambler, 290 F..791 (2 Cir. 1923),

the facts are stated as follows at page 791:

‘* Appellant is the owner of ‘the Rambler, a 2 small har- .

bor tug whose boiler blew up without, notice or|warn-

ing, just as she was Preparing to take in tow the

‘ seow of one of the claimant appellees. The explosion

‘destroyed the. Rambler, hurled. fragments of vessel

and boiler to a great distance, killed the crew on ~

board, and injured property and other persons.

From the nature of things there could not be. any

evidence of what was done or omitted on board the

tug immediately before explosion. The reason for

disaster remains wholly unknown, so far as any di-

rect evidence of recent acts is concerned Pee

The Court then said at page ‘792:

‘“‘The facts upon which liability densnite are ¢ simple i m

_ the extreme.- The Rambler’s boiler blew up, al-

though of good, if not superior, make, shortly after

satisfactory inspection, and while in charge of duly

licensed men. By the contention of the petitioner, no

° reason is shown for the explosion. We have no

doubt that these facts present a clear case for ap- —

plying the rule commonly spoken of as that of ‘res’

ipsa loquitur’. Of the nature and effect of this rule

we have nothing to add to what we said in Central

Railroad v. Peluso, 286 Fed. 661. But since this is a

ease of a boiler explosion on shipboard, we refer to

the.opinion of Wallace, J., in Rose v. Stephens, ete.,

Co, (C. C.) 11 Fed. 438, There & jury was instructed

that they might infer negligence from the fact of ex-

plosion; i.e., the explosion spoke for itself. The rea-

_ son for this rule and its application ~ as Wallace,

J., remarked:

‘Boilers do not usually ¢xplode when they are in a

safe condition, and are properly managed ; there-

fore the inference that this boiler was not in a safe

condition, or was not properly managed, was justi- —

- fiable.’

**The court as trier a the facts i is like a jury; we may

infer negligence from the bald fact of explosion, and

we do. Juries do not ordinarily explain the reasons

for their inferences from the testimony ;. something

more is expected from the court; therefore we ex-.

plain that, since all experience shows ,that good boil-

ers, well taken care of and managed, do not ordinar-

— ily explode, we think that: the Ramble?’s. boiler ex-,

ploded, not because it was a poor boiler, but because

it was mismanaged at and shortly before the moment:

of disaster.’ . (Italics. ours.) .

‘The fact that the captain-owner of the vessel died in this

disaster does not prevent the application of res ipsa loqui-

_. tur, This was discussed in Haasman v. Pacific Alaska Air

Express, 100 F. Supp. 1 (D. C. Alaska 1951), affd. per

curtam Des Marais v. Beckman, 198 F. 2d 550 (9 Cir. 1952),

cert. den. 344 U. S. 922, 73 S. Ct. 388, 97-L. Ed. 710 (1952)

19.

which involved an airplane which disappeared in flight

' without a trace. Judge Folta stated at page 2: ,

‘‘The rule precluding the application of the doctrine

_where the plaintiff's knowledge is equal to that of

the defendant is stated in 65 C. J. S., Negligence,

§220(5), page 1000 and 38 Am. Juris. 995, Section

299. An examination of the authorities cited in sup-

port of the rule however, discloses that it is applied

. to cases where the plaintiff has equal knowledge or .

where knowledge of the cause is equally accessible to

the plaintiff—not to cases in which there is an equal-

ity of ignorance as im the instant case. Since inabil-.

ity, because of a lack of knowledge, to show specifi¢

acts of negligence is a prerequisite to the applica-

— tion of the doctrine itself, it follows that equality of

. knowledge precludes its application. But from this

it does not follow that conversely equality of ignor-

ance will likewise preclude applicability, for the

function of the doctrine,.as stated in the introduc-

tion to Shain’s Res Ipsa Loquitur, is to supply a

fact, ie. defendant’s negligence, which must have

existed in the causal chain. stretching from the act

or omission by the defendant to the injury suffered

by the plaintiff, but which the plaintiff because of

circumstances surrounding the causal chain, cannot

know and cannot prove to have actually existed. I

conclude, therefore, that the rule barring the appli-

-eation of the doctrine where there is equality of

sah is not ‘applicable tothe case at bar * * *.””

In the case of Walker v. Harris, 335. F. 24-185 (5 Cir.

1964) Judge Brown stated:

‘‘This analysis brings us, therefore, to the application

of the familiar doctrine, so often invoked where ves-

sels sink in calm — as sinking (or other fail-.

- wre) under circumstances and conditions which the

vessel must reasonably anticipate and overcome ts the

best proof of, and makes out the classic case of un-

seaworthiness. Although not articulated im such

terms; itis a sort of sea-going res ipsa liquitur. Once © nn

it is assumed (or judicially held) that the vessel must

anticipate the particular hazard and be staunch

enough to override it, the. only escape from the i-

ference of unseaworthiness is proof that some new, -

unforeseen, intervening force or factor brought

about the failure of ship or gear. There is none of

that here.

‘‘It.is true, of course, that.the sudden increase in the

northwester put tug and captain in a difficult spot.

To head on or turn tail? To maintain or reduce

speed? Risk pounding and leakage? Avoid pound- —

ing but risk broaching? It is equally true that the

mortal blow came from the broaching which we may

assume-was unavoidable and consequence of the non-

negligent decision to slov down: Aggravating these

choices and the consequences of decision were the

other characteristics of the Tug. This included such

__things as sash type windows with ordinary window

*glass panes. And so did the pumps which, although

claimed by the shipowner, and found by the Court,

to be in good condition, were nevertheless unable to

_ keep up-with the intake of sea water. But none of

these things or conditions was unknown, unexpect-

ed, or unpredictable. Indeed, it was just such things

which made the Tug reasonably. unfit for these

waters in this season. Forces and conditions which

she had the duty of anticipating cannot amount to an.

intervening and new cause to excuse the disastrous

result.’’ (193) (Italics ours.)

‘The Court then held that the evidence as a matter of

- law’ compelled the conclusion of negligent unseaworthiness -

causing the deaths and injuries and proceeded to reverse

the trial judge and remanded the case for computation

-.of.damages.. The Court reached this conclusion without

_ rejecting as clearly erroneous the fact findings made be-

low, finding as matter of law that the unseaworthiness of

the vessel was due to the negligence of the shipowner with

.. the privity and knowledge of the owner.

In the case at issue, the Court in its conclusion of law

held that the doctrine of res ipsa loquitur does not apply

as there was no evidence to explain the nature and cause

of the fire. If there was clear evidence; then there would

be no need to seek the application of res ipsa loquitur. The

doctrine applies, in the absence of specific evidence, giving

rise to an inference of negligence which must be explained

or rebutted. A fire. and explosion do not ordinarily occur

on a vessel in absence of someone’s negligence.

There is an inference of negligence 4n this case, which

has not been explained or rebutted. Although specific cause

of the disaster is not established, the policy of the law is

to place the burden of explanation on the owner and opera-

tor of the vessel and to make an inference of negligence

in the absence of a satisfactory explanation. The trial |

court stated that it did not find that there was a satisfac-

tory explanation. The Court erred in holding that the doc-

trine of res ipsa loquitur does not apply. The. petitioners )

should have prevailed as matter of law.

3. ‘The Court of Appeals in affirming the judgment be-

low affirmed the trial court’s ruling that the decedents were:

not entitled to a seaworthy vessel under maritime law. An -

important question in maritime law not yet decided .in this

- Court, is presented in this case, whether members. of a fish-

ing party—a traditional maritime activity—are entitled to |

the warranty of seaworthiness. —

‘ 22

Pho trial judge did not, in his findings of fact, make any -

reference to the ciroumstances under which the deceased

had come to be on the vessel except to say that Captain

Simson invited ‘five frionds—-to nooompany him on a tuna

fishing trip’’ (33a). Captain Simson was in the floor cover.

ing business (114a). Joseph Bencel, deceased, Was a cua-

tomer of Captain Simson (14a). The ‘deceased, George

Monti, Lewis Batson, and Michael Tlusti all worked for

. Joseph Beneol (Aida). The relationships of the parties

were colored by economic interests,

A trial court held that the claim for aiuiibaueteaes

does not apply (59a). Lt is the contention of the petition-

ers that as'a matter of policy and as part of the growing:

‘area of application of the doctrine of liability without fault

it should have been applied. Cf. Rothman v. U-Steer-It

Tne., 247 BF. 2d 808, 808 (5 Cir. 1957),

The trial court ruled that the decedents were not entitled

te a seaworthy vessel under maritime law, citing Aermarec

v. Compagnie General Transatlantique, 358 U. S. 625, 79

S Ct., 406, 3 L. Ed. 2d 550 (1959) as authority for its rul-

ing (50a). In that case the Court held that a duty to pro-

vide a seaworthy vessel was not owed to one aboard a ves-

sel *‘not to perform ship's work, but simply to ‘visit a

friend’*. However this case did not involve social guests.

It involved a fishing party. Fishing is one of the tradi-

tional maritime’ activities.

It was established that the purpose of the trip was to go

fishing. The manager of Hoffman’s Anchorage testified .

with reference to Captain Simson (84a-1): —

“*A. Well, as I can recall, sir, he usually went out

on weekends fairly regularly throughout the sum-

mer.

as. Q And’ did -” go out for any particular —

poso? Was it just boating or fishing? Could you tell

us that.

A. To my knowledge, it was just for fishing.

- Q. What type of fishing, do you know?

A. Well, sport fishing, such | ay es for bluefiwh

and tuna. si

The witness Frost testified to the fact that the partiey

were going fishing (1191). Mr. Hoffman, Sr., ‘testified

(2050-12) :

> 4A, On the evening rot the 18th’ I was sitting on

the lawn and Mr. Simson came up and sat down

alongside of me. He said that-he had invited some | |

friends to go fishing with him the next day, and they ~

were really going for the big ones, big tuna.’

Captagn Simson also told this witness that ‘‘they were

business. associates and friends that he had invited down

to go fishing with him’’ (206a-15)..The court found as

a fact that the party had gone fishing (50a, par. 3).

In a normal commercial fishing venture all those who

participate in the operation of the vessel, even in a col-

lateral sense, are entitled to a seaworthy vessel, See Mitch-

ell v. Trawler Racer Inc., 362 U. 8. 539, 80 8. Ct. 926, 4 L.

Ed. 2 941 (1960). Since the object of the trip in this case

" was fishing,.even if it was of a sporting nature, the issue

of seaworthiness arises. ‘Unless it is deemed mandatory

that the decedents have been in the pay or hire of the mas-~

ter of the vessel, they were doing seamen’s work when they

‘engaged in fishing operations. In the case of Murphy v.°

Hutzel, 27 F. Supp. 473-(E. D. Pa. 1939) the libellant had

been a guest on a gasoline launch used for pleasure, At

the time the boat was being used for a ‘‘érabbing party.””.

In describing the relationship of the parties, Judge Dickin-

son stated at page 475: . o> ;

‘The relation of the owner of a boat and those invited

- to join a junketing trip on her is often a peculiar

one..The boat myst be managed, and otherwise

guests, if familiar with thé handling of boats, act as -

members of. the crew.. Such was the case here, and

the libellant was hurt while acting as a member of

the crew. The host and guests were common adven-

turers, much as if two or more together hire a boat.

They are both host8 and guests.’’ ‘(Italics ours.)

In the present. case the guests were present for. the pur-

pose of participating in fishing. The relationship of the .

parties was a peculiar one which does not fall into the or- -

dinary passenger-carrier relationship or into the: usual

master-crewman relationship. There was no evidence that

the guests were to have anything to do with the operation

of: the vessel. The court in its findings stated that Captain —

. Simson was ‘‘a well qualified and skillful operator of mo- |

tor boats’’ (58a, par. 22). The court noted that there was

testimony that “‘one of the guests’’ had ‘‘some knowledge”’

of the operation of a motor boat (58a, par. 24). The activi-

ties of the guests therefore related to the fishing aspect of

the trip rather than the operation of the boat itself. :

In the case of Clevenger v. Star Fish & Oyster Co.,-325

F. 2d 397 (5 Cir. 1963) a seaman, while helping to unload

fish from a vessel was assaulted by the first mate. The

trial judge had found that the ‘‘fishing excursion’’ had

been concluded before the attack and that the work of un-

loading being done at the time wag not in furtherance of

duties connected with the vessel. This. was réversed.

Among other things J udge Wisdom stated at page 402:

“‘The trial court found in effect that, Clevenger was |

not a seaman, after the vessel reached port; that ‘as

-to the operations of the ship in connection with the

‘actual fishing ‘operations, as well as the disposal of

the fish after they reached the port and there being

unloaded. * * * (all) were members of a joint ven- °

ture.’ We think that Clevenger did not lose his

status as a seaman. But in any event, he was a sea-

man’s substitute in unloading fish at the time of the

attack. In Sieracki the injured libellant was a long- |

shoreman, employed by an independent contractor.

In Pope & Talbot v. Hawn 1953, 346 U. S. 406, 74

S. Ct. 202, 98 L Ed: 143, a carpenter, employed by

an independent contractor to repair grain loading

equipment, fell through an uncovered, hatch on a

ship. The Court, following Sieracki, saw carpentry

among the traditional responsibilities of seamen and

allowed recovery against the shipowner. Sieracki,

. Hawn, and Clevenger, while doing a seaman’s work,

were exposed to’ the hazards of an unseaworthy

ship. The shipowner owed them the absolute duty

- of furnishing a safe ship.

“There is no evidence that Clevenger was converted

from a seaman to a joint venturer on the return of

the Star Queen to Mobile, Alabama, except that the

officers and crew were paid in shares. This fact alone

does not establish a joint venture. Osland v. Star

_ Fish & Oyster Co., 5 Cir. 1989, 107. F. 2d 113; 118 F.

~ 94 772. And im this case its significance has a bear-

ing only on the question whether there is an em-

ployer-employee relationship under the Jones Act. ©

For recovery on the warranty of seaworthmess, it is

not significant that conceding Clevenger was a joint

venturer, the breach or warranty might be said to

have been that of the joint venture. Unseaworthi-

ness may arise from the acts of an. ‘injured long-

shoreman himself employed by an independent con-

tractor. See Grillea v. United States, 2 Cir. 1956, .

ao 26'

232 EB, 2d 919; Atal S.S. Co. v. Peterson. Here,

there is no contehdion, no suggestion that the owner

surrendered control by a demise charter or that the —

effect of a joint venture is to transfer control and °

responsibility from the shipowner to the joint ven-

turers. See Guzman v. Pichirilo, 1962, 369 U. S.

- 698, 82 S. Ct: 1095, 8 L, Ed. 2d 206. Vitozi v. Balboa |

Shipping Co., 1 Cir. 1947, 163 F. 2d 286.

‘¢When the action for unseaworthiness is available, its

’ notion of liability swallows up any notion of mari-

‘time negligence, no matter how leniently: conceived.

We see ‘no need, ss be to discuss negligence.’’

(Italics ae

The area of appitnation of liability without. fault has ex-

panded tremendously * within the last decade.’ See Hen- |

ningson v. Bloomfield Motors Inc., 32 N. J. 358, 161. A. 2d

69. (1960), 75 A. L. R. 2d tT (1961) 1 Frumer & Friedman,

Products Liability, §16.05 (2). The concept has broken

out of { the narrow confines of contract law based on privity

and special relationships and is more ‘broadly based on pol-

icy consideration involving human safety and welfare. A

similar expansion has been going on in niaritime Jaw with

_ qgeference to she warranty of ‘seaworthiness. “GF. Gutierrez

v, Waterman Steamship Corp., 373 U. S. 206; 88. JS. .

1185, 10 L. Kd. 2d 297 (1963). sli “ey,

Courts. recognize the difficulty of proving fault in many’ io

situations. In product liability cases, it is the difficulty m

obtaining proof of fault in events in the plants and ware-

houses of a manufacturer. Iw maritime cases it is equally

difficult. to reproduce the conditions. under which accidents

occur. The ocean, in a very real sense, is a giant eraser

forever wiping the slate clean.

Secondly the older concepts, developed with ieee of

“ privity” are being abandoned. Courts recognize that

> . bal

strict liability in personal injury and death cases is not

rooted in contractual obligations or in @onomic arrange

ments but arise from a high regard for human life and .

safety for all who may be exposed to a given risk of harm.

The courts recognize that it is fairer to placé the burden

of loss on the one who controls the manufacture of the in-

- strument or the owner in control of the vessel than to leave —

it with the injured party. These people are in the best po-

sition to take the precautions necessary to prevent acci-

..dents. They are also in the best position to distribute the

. loss through i insurance.

In Walker v. Harris, 335 F. 2d 185 (5 Cir. — at page

193, Judge Brown stated.

“This analysis brings us, therefore, to the application

of the familiar doctrine, so often invoked where ves- —

sels ‘sink in calm waters, that sinking (or other fail-.

ure) under circumstances and conditions which the ,.,

vessel must reasonably anticipate and overcome is

the best proof of, and makes out the classic case of,

unseaworthiness. * * *’’

‘Under the peculiar status of the deceased on this vésse]

the court should have held that they were entitled to a sed-

worthy vessel. ‘They were on board to engage in a mari-

time activity, ie., fishing. Their rights should not-be made

to depend on whether they were paid for participating in

the activity.. This case is one where the traditional rules

_ establishing ‘unseaworthiness apply. The court erred in

failing to permit recovery. ;

_ Unless this Writ of ‘Certiorari is granted and this error

is. corrected, it will result in prejudice to the substantia!

rights of these petitioners and of other persons whose cases

might be’decided in a similar fashion contrary to the deci-

sions of this Court and traditional admiralty law.

4 !

CONCLUSION

F, or the above -reasons a Writ of Certiorari should be

granted as prayed for.

Respectfully submitted,

Naraan Baker,

Counsel for Petitioners. -

APPENDIX A.

Findings of Fact and ee es

‘(Piled—Mareh 6, 1964.)

UnItTED Mateus pee Courr

District or New JERSEY

Ross H. Bencet, Administratrix and Administratrix ad

Prosequendum of the Estate of Thomas Joseph Beneel,

deceased, et als, |

, Lébelianté: :

ys,

Wituiam Frosr and Mrs.°Micwaru J. Stmson, Administra-

trix and Legal Representative of the Estate of ‘Captain .

Michael J. Simson, seiceaietes

Respondents.

Civm Action No. 1020-61

In the Matter of the Petition of: Mrs. Michael J. Simson,

Administratrix and Legal Representative of the Estate

of Captain Michael J. Simson, Deceased, Owner of the

-itation of Liability.

Crviu ie te ee +

Appearances :

Baker, Garper & CHazen, For Libellants Claimants

By: Natuan Baker .

| [la] | .

Appendia A

Mzap, Pm Sie & Panrtaces, for ncaeatael

titioner, Mrs. Michael J. Simson, 7

By: Vicror C. Hansen.

Mmaney, District Judge.

The present action was commenced by way of a libel and

complaint of Rose H. Bencel, Administratrix and Admin. °

istratrix ad Prosquendum of the Estate of Thomas Joseph

Bencel, -deceased; Margaret Ann Batson, Administratrix

and Administratrix ad Prosquendum of the Estate of

Lewis George Batson; Jr.,; deceased; Stella Bencel, Ad-

ministratrix and “‘Administratrix ad Prosquendum of the

Estate of J oseph Bencel, deceased; ‘Mary Husti Vegh, Ad-

ministratrix and Administratrix ad Prosequendum of the

Estate of Michael J. Husti, deceased against. William Frost

and Mrs. Michael J. Simson, Administratrix and Legal

Representative of the Estate of Captain Michael J. Simson,

deceased, in a cause of action in tort for damages for per-

sonal injuries, civil and maritime.

‘The respondent, Mrs. Michael J. Simson, anawered in ef-

fect denying the pertinent allegations of damage to the

various libelants and claimed limitation of liability to the

value of the boat, which, by: reason of ee had no

value, and asked exoneration.

Both issues were consolidated by order of the court upon

application of counsel for the Tespondent. |

At a pretrial conference it was “determined that William

Frost was not a part owner of the’ vessel involved in the

suit and the action against him was dismissed by consent

of both counsel. :

Sa:

Appendia A

_ Although both actions, the libel and claim for limitation

of liability, were initiated by the various parties as admin-

istratrices and administratrices ad prosequendum before

letters were actually issued, letters were finally issued be-

fore trial upon determination by an appellate court of

New Jersey that the presumptive death of Joseph Bencel

was declared to have occurred on July 19, 1961. Thereafter.

_ all parties to the libel and limitation proceedings obtainéd

letters of administration. By stipulation and order of this

court the same were filed nunc pro tune as of the date of the:

institution of the libel .and claim for limitation.

Trial was had and testimony was taken and evidence ad-

mitted. On said testimony dand'evidence the following fing.

ings of fact and conclusions of law a are made:

" Fibipawos OF Wise

1. Michael J. Simson, the respondent’s decedent, was the

- owner of a 27 foot, wooden hulled enclosed Chris Craft

cruiser, built in 1951, powered by twin 95 horsepower in-

board gasoline engines. It had a small cabin,.raised wheel

stand and after cockpit. It was. used as a pleasure boat

and for sport fishing. It was called. the ‘One More’’.

' 2. The boat was purchased by Simson in 1958 and was

kept since 1960 at Hoffman’s, Anchorage in Brielle, N. J.

3.. Prior to July 19, 1961 Cap‘ain Simson invited five

friends, among them the libelant’s decedents, to accompany

him on ‘a tuna fishing trip to —_ waters some twenty |

miles off shore. i

rangements with one Raymond Caire, owner of a boat

named the ‘Fin, Fan” ‘who was 3 to go to ™ same fishing ’

* ; 4a

Appendia A

_ grounds on July 19th, to maintain hourly radio ¢ communi-

cation between the two boats. :

5. On the morning of July 19, 1961, at about 5: 00 A.M., -

_ Simson departed from Hoffman’s Anchorage in charge of

his boat, the ‘‘One septal with the five decedents aboard

as passengers. |

6. “The weather at Brielle and offshore was good, the sea

calm, and visibility varied from one to five miles.

7. Before leaving Hoffman’s, Raymond Caire sits to

Captain Simson on the radio, and transmission was good.

8. The ‘‘One More’’ had received clearance from the

Coast Guard in June 1961 as to standard required equip- »

ment, such as life preservers, fire extinguishers, standard

lights and warning devices. | |

9. The boat ‘‘One More”’ was in ‘good — as to

general seaworthiness. :

10. Both engines of the ‘‘One More”? ‘had been over-

hauled previous to its last voyage, the port engine in 1960,

the starboard in 1961, and according to the overhauler were

found to be in operating order, with the engine compart-

ment clean and the hull sound. ‘

11. The ‘‘One More’’ had made several —_" with the

overhauled engines, prior to its last one.

12. At About 6:45 A.M. on July 19th, at.a distance of

about 15 or 20 miles off shore, Caire on the ‘‘Fin Fun’”’

passed ‘the ‘‘One More’’ within 100 yards of it and had.

radio communication with the ‘‘One More.’’ This was the

last contact he had with the ‘‘One More’’ (which was trav-

eling at 10 or 12 knots per hour at the time) although he

| Appendic A

tried sietiil for a few hours thereafter to establish radio

communication with it..

13. The ‘‘One More’’ did not sebiii to Brielle-and an

intensive search was made for at least ten days, planes and

Coast Guard vessels being used and a general radio call

‘sent out’to all vessels to watch out for the ‘‘One More’’

or any boat of its description. The search, which covered

a total of 78,000 square miles, was fruitless. |

14. On August 18, 1961 a piece of wreckage consisting

of a charred remnant of the bow section of a Chris Craft:

boat was discovered in the vicinity of Barnegat Light Ship,

and was unmistakably identified as part of the bow section

of the ‘‘One More.”’

15. None of the parties who had left on the ‘‘One More’’

on July 19, 1961 was ever.seen or heard from since. .

16. The deaths of all six men have been adjudicated by

the courts of New Jersey (In re Beneel’s Estate, 78 N. J.

Super. 545).

17. All six men perished at sea beyond : a Marine League

on July 19th as a result of the loss of the ‘‘One More.”?

18. The mute evidehoe of the charred remnant of the

bow of the ‘‘One More”’ is indicative of the fact that the

‘‘One More’’ was destroyed by fire. There is no other evi-

dence of its loss.

19. On July 19, 1961 ene: was no stove or other cooking

equipment nor any propane gas on the. ‘One More.”? |

20. The ‘‘One More’ was equipped. with four fire extin-.

guishers—one under the boat’s rear seat, one.in the cabin,

one at the steering wheel, and one at the bow of the boat.

21. The ‘‘One More’? had two bulkheads, one about 20

inches from the tip of the bow, and one about 15 feet aft

Appendia A

immediately forward of the engines, which were housed in

a compartment covered by a wooden hatch which served as

' part of the main: deck. There was one gas tank made of |

monel of about 60 gallons capacity. From this there ran a

single fuel line which bisected,.a branch running to the fuel .

pump of each engine.

22. Captain Michael J. Simson was a “well qualified and

skillful operator of motor boats, his familiarity resulting -

from ‘ten to twelve years of operation of such boats. He

was familiar with the hazards attending the operation of

such boats, and the proper precautions to take.

“93. ‘There was testimony that one of the guests of Cap-

tain Simson had some knowledge of the operation of a

- motor boat.

24. There is a conflict in the testimony of experts as to-

the probable’ nature and location of the initial conflagration

and no agreement as io the probable cause of it.

25. Several possible causes were suggested by the ex-

perts from the condition of the charred remnant both as

to the nature and origin of the fire. i an

: Discussion

Granted the complete absence of any direct testimony

as to the happening of the accident, we must arrive at-rea-

sonable inferences to be drawn from that fragment which

constitutes the sole remains of the ‘‘One More.’”’ The libel-

ants’ claims seem to be based on unseaworthiness and neg-

- ligence. The claim of unseaworthiness does not apply to

their claims as none of the deceased, for whose estates |

claims have been made, was a member ,of the class. pro-

tected by the martime law of seaworthiness, since they —

were merely passengers to whom was owed the duty of

Appendiaz A

reasonable care under the circumstances (Kermerac v. Com- .

pagnie Generale Tramsatlantique, 358 U. S. 625; Benedict

on Admiralty, Vol. 1, p. 260). Further, the testimony seems

to indicate seaworthiness. —S , :

Thus the right of recovery of the libelants turns upon

their claim of negligence, the violation: of the duty.on the

_ part of the owner and, in this case, operator of the boat.

That duty was to exercise reasonable care under the cir-

cumstances. To establish their claim, libelants, in the ab-

sence of any testimony or other evidence than the charred.

remnant of the bow of the ‘‘One More’’ rely upon the doc-

trine of res ipsa loquitur. This doctrine is a means by

which negligence is inferred rather than explicitly proved.

To warrant the drawing of any such inference certain con-

ditions must be met. ‘‘The conditions usually stated as

necessary for the application of’the principle of res ipsa

loquitur-are three :- (1) the accident must be of a kind which: '

- ordinarily does not occur in the absence of someone’s négli- _

gence; (2) it must be caused by an agency or instrumental-

ity within the exclusive control of the defendant; (3) it |

must not have been due to any voluntary action or con-

tribution on the part of the plaintiff.’’ Prosser on Torts,

2nd Ed. p. 201. Thus res ipsa loquitur is usually used to

- infer negligence after a definite accident has been proved

and circumstances warrant the inference of negligence.

In the ease of the Petition of Bogan (103 F. Supp. 755}

this court applied the doctrine of res ipsa loquitur to a sit-

uation involving a shipboard explosion. In that case the

fact of an extraordinary explosion had been established,

- circumstances antecedent thereto had indicated conditions

which justified the inference of negligence, and the vessel

was inthe exclusive control of the master. To such a situa-

tion the court felt that the doctrine of res ipsa loquttur

was apposite, and so applied it.

Appendia A

In the instant ease libelants would havé the court use in- .

ferences both with respect to the accident and the negli-

gence which they alleged caused the accident.

-The rationale of most of the cases referring to the appli-

cation of the res ipsa loquitur doctrine would seem to be

. that more than mere speculation is required, that a more

\.or less compelling and practically exclusive probability

must be the basis of the inference of negligence. .

The instant case might, with due regard for the determin-

able facts, be termed unique. There is no evidence of

unseaworthy condition of the boat at the time of its de,

parture, nor evidence of any condition indicative of tha

existence of suspicious or dangerous elements on board the

boat. It disappeared with all on board, leaving no trace

execpt the piece of wreckage to which reference has been

made. The sole question is: does that. single piece of evi-

dence justify the application of the doctrine of res ipsa

loquitur? . : ;

In the Bogan case this court was able to determine the

precise nature of the accident, and in view of.testimony as

to the surrounding circumstances could appropriately apply

the doctrine of res ipsa loquitur. os

In the ‘present. case, however, all that is known is that

there must have been a fire which destroyed the boat. But:

the record is devoid of facts sufficient to infer the existence

may indulge in various speculations and possibilities but

\ . a

a a

P \

‘

bed .

‘ of negligence on the part of Captain Simson. True, one —

lation.’’- (The Mist-Chief, 57 ¥F. 24.875). er

Even granting that there was an explosion; this court

feels that it cannot say: from the testimony that it was

caused by the negligence of Captain Simson, or that he

ete eh ae

Appendix A

knew or should have known of the existence of what esaia

have caused an explosion.

In view of the above this court makes the following

_Conc.usions OF Law

a,’ ide there has been no evidence to explain the nature

and cause of the fire which destroyed the ‘‘One More’’ and

since there is no evidence warranting more than speculation |

~ as to both the nature and cause of the catastrophe, the doc-

trine of res ipsa loquitur does not apply.

_ 2.. The respondent is not liable i in Suara bi the libel-

ants. ;

3. In view of these findings, it is not nocienaty to deter- -

mine the claim of limitation of liability.

Let an order be submitted.

\ —

7 “APPENDIX B

" Opinion of the Court’

(Filed Mareh 31, 1965) ae

UNITED STATES COURT OF APPEALS |

For 1 THE THIRD Cmovrr

- No. rl

. ROSE H, BEN CEL,- ADMINISTRATRIX AND ApmrinisreaTarx

AD PRoSEQUENDUM OF THE Estate OF ‘THOMAS JOSEPH

Banom,+Daceasep, ET AL.,

Libellants- Claimants-Appellants, i |

| WILLIAM. FROST AND ‘MRS. MICHAEL J. SIMSON,

, ADMINISTRATRIX AND .LEGAL REPRESENTATIVE ‘OF THE

* Estate or Caprain MicHakEL J. Simson, D&cEASED,

Respondents-Appeliees.

IN = MATTER OF THE PETITION

- oF:

oar

MRS. MICHAEL J. SIMSON, ApsrnierRaTaox AND LEGAL

. Representative or THE Estate or Caprain Micuaen J.

“Simson, DecEasED, OWNER oF THE Motor Boar ‘‘ONE

- MORE’, For EXONERATION From. oz LIMITATION OF

—— . |

an ae ‘Petitionor-Appellee.

r *)

lla

Appendia B-

. AppzaL From THe Unirep States Disrricr Courr ror THE

_Disraict.or NEw JERSEY

‘

Argued March 15, 1965 |

Before McLavéuuin, Hastig and Smits, Circuit Judges.

Per CuRIAM.

The opinion of Judge Meaney in the district court com-.

pletely and properly disposes of the unseaworthy and res

ipsa loquitur questions raised on this appeal.

The judgment of the district court will be affirmed. _

Teste :.

for the Third Circuit.

Clerk of the United States Court of Appeals —

12a

APPENDIX C

Judgment

UNITED STATES COURT OF APPEALS

For THe Turp Circuir

No. 14,973

' Rose H. Bencer, Administratrix and Administratrix ad

-Prosequendum of the Estate of Thomas Joseph Bencel,

deceased; Mircarer Ann Batson, Administratrix and

Administratrix ad Prosequendum of the Estate of Lewis

George Batson, Jr., deceased; Sretta Bencen, Adminis-

tratrix and Administratrix ad Prosequendum of the

Estate of Joseph Bencel, deceased; Mary Husti Vzcu,

Administratrix and Administratrix ad Prosequendum of

Appellants,

v8.

v -

Wuutam Frost and Mrs. Micuazn J. Simson, Administra-

trix and Legal Representative of the Estate of Captain

Michael J. Simson, deceased

(Admiralty 1020-61)

Tw rue Marrer or THE Peririon

o = 7 of .

Mrs. Micuaex J. Simson, Administratrix and Legal Repre-

sentative of the Estate of Captain Michael J. Simson,

Deceased, Owner of the Motor Boat ‘‘One.More”’ for -

Exoneration from or Limitation of Liability

ee eactence nterctn! wih ina onthe nes Wipe en to os

13a

Appendix C

(Admiralty 91-62) |

Ow APPEAL rroM THE UNiTep States Disrrict Court

ror THE Distkict or New JERSEY

Present: McLavucHuin, Hastiz and SmitH, Circuit Judges. -

This cause came on to be heard on the record from the

United States District Court for the District of New Jer-

sey and was argued by counsel.

On consideration whereof, it is now here ordered and ad-

judged by this Court that the order of the District Court,

filed April 3, 1964, be, and the same is hereby affirmed, with

costs. aia | ,

ATTEST:

Ipa O. CrEskKorF,

Clerk. ©

March 31, 1965

ee .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.