Petition for Writ of Certiorari — Young v. Clear Lake Yacht Basin, Inc.

IN THE

Supreme Court of the United States

o 78°63

ROBERT B. YOUNG, Petitioner

v.

CLEAR LAKE YACHT BASIN, INC., ET AL,

Respondent

PETITION FOR WRIT

OF CERTIORARI TO THE FIFTH CIRCUIT

COURT OF APPEALS

Brock & WILLIAMS

Warner F. Brock

250 The Main Building

Houston, Texas 77002

224-6433

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

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Questions Presented for Review .....................00-

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Appendix A (Memorandum and Order of District Court)...

Appendix B (Order of Fifth Circuit) ...................

Appendix C (Fifth Circuit’s Order Denying Petitioner’s Mo-

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LIST OF AUTHORITIES

CASES

Austerberry v. United States, 169 F.2d 583 (6th C.A. 1948)

Commissioner of Internal Revenue v. Duberstein, 363 U-S.

ST

Senko v. LaCrosse Dredging Corp., 352 U.S. 370 (1957)...

Strakos v. Gehring, 360 S.W.2d 787 (Tex. Sup. 1962).....

The New Berne (4th C.A.) 80 F.2d 244 ................

Tropical Mauve Products, Inc. v. Birmingham Fire Ins. Co.,

247 F.2d 116 (Sth C.A. 1956) Cert. den. 355 US. 903

RRS EER EEE AD Loca

UNITED STATES STATUTES

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Supreme Court of the United States

NO.

ROBERT B. YOUNG, Petitioner

v.

CLEAR LAKE YACHT BASIN, INC., ET AL,

Respondent

PETITION FOR WRIT

OF CERTIORARI TO THE FIFTH CIRCUIT

COURT OF APPEALS

To The Honorable Chief Justice and Associate Justices

Of The Supreme Court Of The United States:

Petitioner prays that a Writ of Certiorari issue to re-

view the Judgment of the Fifth Circuit Court of Appeals

entered in the above case on March 7, 1973, affirming

the opinion of the District Court entered on January 19,

1972.

CITATIONS TO OPINIONS BELOW

The Memorandum and Order entered by the District

Court can be found at Young v. Clear Lake Yacht Basin,

RAO MONEE LEME ADE SINE SAB eh IA AE lt i hi AES BODE A Ne

2

Inc., 337 F.Supp. 1305 (S.D. Tex. 1972). A copy is

attached hereto as Appendix “A”. A copy of the Order

of the Fifth Circuit Court of Appeals’ affirmance of the

District Court is attached hereto as Appendix “B”,

(R. II-3,4) The Order denying Petitioner’s Motion for

Rehearing on April £6, 1973. is attached as Appendix

_". (Rh. BS)

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254.

QUESTIONS PRESENTED FOR REVIEW

I. Whether this is to be the only reported case where

one cannot recover damages for injuries sustained on

navigable waters while on board a yacht when it caught

fire as a result of gas in the bilge from a leaking gasoline

tank, a patently unseaworthy condition, against:

(a) The marine surveyor who certified that the vacht

was seaworthy, or;

(b) The insurance company who issued their policy

on the yacht only after the survey of reasonable fitness

had been made, or;

(c) The marine repairman who warranted that the ves-

sel was reasonably fit after the repairs were made and

was negligent in failing to test the gasoline tank, or;

(d) The owner of the vessel?

2. Whether, under the facts, the Petitioner can rely upon

breach of the maritime warranty of seaworthiness as

well as the common law warranty of reasonable fitness?

LA IE LOCO PORTE V0 9

3

3. Whether the Circuit Court of Appeals erred in affirm-

ing the District Court’s holding that Plaintiff not only

had the burden of proving the source of the fire and ex-

plosion aboard the Yacht Topaz, but also had the burden

of disproving alternate sources suggested by the defend-

ants.

4. Whether the Circuit Court of Appeals erred in af-

firming the District Court’s holding that the Defendant

marine repairman could not owe the warranty of sea-

worthiness to plaintiff after making extensive repairs on

the Yacht Topaz.

5. Whether the Circuit Court of Appeals erred in af-

firming the District Court’s holding that Petitioner did not

have the status of a “seaman” at the time of his injuries;

to whom was owed the warranty of seaworthiness.

6. Whether the Circuit Court of Appeals erred in af-

firming the District Court’s holding that Plaintiff was

not only contributorily negligent but also that such negli-

gence would bar his recovery under any theory.

7. Whether the Circuit Court of Appeals erred in af-

firming the District Court’s holding that the Texas

“accepted work” doctrine prohibited recovery against the

marine repairman.

8. Whether the Circuit Court of Appeals erred in af-

firming the District Court’s clearly erroneous holding that

Surveyor Roberts was not an agent of the insurance

carrier and that any negligence by Roberts was not a

proximate cause of Plaintiff’s injuries.

9. Whether the Circuit Court of Appeals erred in af-

firming the District Court’s clearly erroneous holding that

Plaintiff had compromised his claim against the insur-

ance carrier.

STATEMENT

Petitioner filed his lawsuit before the Federal District

Court for the Southern District of Texas alleging that _

a repairman, marine surveyor, marine insurance carrier

and a yacht owner had in varying degrees breached a

duty of seaworthiness and common law warranties in

regard to the condition of the Yacht Topaz as well as

committing various acts of negligence. The Yacht Topaz

was owned by the Young Manufacturing Co., Inc., of

which Petitioner and his brother were the principal offi-

cers. Shortly after the Yacht was purchased their marine

insurance carrier required the company to submit the

yacht to an inspection by a marine surveyor who in turn

required it to be submitted to a repairman for certain

repairs. A month after the repairs Petitioner was aboard

the yacht when there was a fire and explosion which

Petitioner alleged resulted from a leaking gasoline tank

which condition should have been patently obvious to

the inspector and the repairman.

The trial court found that none of the Defendants

had made warranties to the Plaintiff and furthermore,

that none of them, including the yacht owner owed a duty

H of seaworthiness to the Plaintiff. The trial court dwelled

on its finding that Petitioner had failed to prove up

the source of the leaking fuel or the source of the igniting

spark.

From a reading of the trial court's opinion it is obvious

that the Court made an initial determination of who was

to prevail in the lawsuit and then attempted to reconcile

Petitioner's three theories of negligence, common law war-

ranty and seaworthiness against each of the four de-

fendants, into a common factor of no recovery. Such an

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approach has led the Court into inconsistencies of law

and required it to ignore the great weight of the evidence

to the injustice of the severely injured Plaintiff-Petitioner.

For example, the Court holds that the repairman Clear

Lake Yacht Basin made no common law warranties. Assum-

ing they did, the Court says: the deteriorated twenty (20)

year old gas tank shown in numerous photographic ex-

hibits was not in that condition while in the possession

of Clear Lake Yacht Basin several months prior to the

taking of the pictures; careful observation would not

have revealed that a defect was likely to occur in the

future (R.I-Appendix p. 151); there was no negligence

because Plaintiff failed to prove proximate cause; even

if he did prove proximate causation he was barred by his

contributory negligence; there was no duty of seaworthi-

ness because that can only run from the Yacht owner;

however, the Yacht owner is not liable because Plaintiff

is not a “seaman.”

This tightly woven path through the forest by the

trial court has caused it to miss seeing the trees. The law

is not a neat and orderly chess game but must concern

itself with such messy details as evidence. The explosion

and fire on board the Topaz was per se evidence of its

unseaworthiness. No one contended that the Plaintiff

walked up to the boat, poured gasoline in the bilge and

struck a match to it. Furthermore, the only serious evi-

dence as to the source of the fuel was a deteriorated fuel

tank inspected and handled by a marine inspector and

marine repairman. Even the trial court felt called upon

to question the propriety of the Defendart surveyor’s in-

spection which only took an hour and a half. (R. 1-A.

161-162). Was this intended to sweeten the quality of

Justice dealt to the Petitioner.

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REASONS FOR GRANTING THE WRIT

1. The Court of Appeals’ affirmance of the finding that

a repairman cannot owe the duty of seaworthiness is in

direct conflict with this Court’s holdings in Reed v. The

Yaka, 373 U.S. 410 (1963) and Ryan Stevedoring Co.

v. Pan Atlantic S.S. Corp., 350 U.S. 124 (1956). While it

is clear that the duty of seaworthiness is a “nondelegable”

of the ship owner it is also clear that this duty can run

concurrently from a repairman to perform his duties in

a workmanlike manner.

2. The Court of Appeals’ affirmance of the finding that

Petitioner did not have the status of a “seaman” to whom

the duty of seaworthiness is owed is in direct conflict

with this Court’s decisions in Desper v. Starved Rock Ferry

Co., 342 U.S. 187 (1952); Seas Shipping Co. v. Sieracki.

328 U.S. 85 (1946) and Senko v. LaCrosse Dredging

Corp., 352 U.S. 370 (1957). The non-maritime nature

of the so-called regular work or duties is completely irrele-

vant. Flowers v. Travelers Ins. Co., 258 F.2d 220, 221,

(Sth C.A. 1958), cert. den. 359 U.S. 920 (1959).

Whether or not compensation is received is not controlling

on the issue of whether Petitioner was a member of a

“crew” at the time of his injury. In Re Read, 224 F.

Supp. 241 (S.D. Fla. 1963).

3. The burden of proof placed on the Petitioner in

proving negligence and unseaworthiness exceeds ele-

mentary principles of law requiring a preponderance of

the evidence rather than beyond a reasonable doubt.

Evidence that presence of gas fumes emanated from a

gasoline tank may be based on circumstantiai evidence

alone. Austerberry v. United States, 169 F.2d 583 (6th

C.A. 1948); cf. The New Berne (4th C.A. 80 F.2d

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244. Defects even though latent can be presumed to

establish per se evidence of unseaworthiness. Tropical

Mauve Products, Inc. v. Birmingham Fire Ins. Co., 247

F.2d 116 (5th C.A. 1956) cert. den. 355 U.S. 903

(1959).

4. The trial court’s finding that Petitioner was con-

tributorily negligent and that such negligence was a com-

plete bar to recovery under any theory was patently

erroneous in regard to Petitioner’s claim the Yacht was

unseaworthy. Petitioner’s negligence must be found in

terms of degree which reduces his recovery pro rata.

Mason v. Lynch Bros. Co., 228 F.2d 709 (4th C.A.

1956); Mevin v. Wilner, 424 F.2d 1058 (Sth C.A. 1970).

The burden of proof on the issue of contributory negli-

gence is on the defendant. Garrett v. Moore-McCormack

Co., Inc., 317 U.S. 239 (1942). Petitioner can only re-

fer this Court to the voluminous record and exhibits in

this case to show that the trial court’s finding on this

important issue was based on evidence in the realm of

conjecture and rank speculation.

5. The trial court’s finding that Petitioner’s recovery

against the marine repairman Clear Lake Yacht Basin,

Inc., was barred by the so-called Texas “accepted work”

doctrine is in direct conflict with the State Law of Texas.

The Texas Supreme Court in Strakos v. Gehring, 360

§.W.2d 787 (Tex. Sup. 1962) has held that acceptance

of defective work should not be a legal excuse for the

negligent performance of that work.

6. The trial court’s finding affirmed by the appeals court

that (1) the marine surveyor was not an agent of the

insurance carrier; (2) that any negligence by the surveyor

could not have been a proximate cause of Plaintiff's in-

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juries; and (3) that Plaintiff had compromised his claims

were not supported by substantial evidence and clearly

erroneous. This Court can only be left with the “definite

and firm conviction that a mistake has been committed”

if it reviews the transcript and the numerous exhibits in

this case. United States v. U. S. Gypsum Co., 333 US.

364, 395 (1945); Commissioner of Internal Revenue v.

Duberstein, 363 U.S. 278, 291 (1960).

7. The questions presented are one of general public

importance to the field of maritime law and to the in-

creasing numbers of pleasure boat owners in the general

public who are inexperienced mariners. Commenting on

the Defendant Roberts cursory inspection of the Yacht

Topaz the trial court noted:

“A marine surveyor, particularly one who engages

in the burgeoning pleasure boat field where the ma-

jority of boat owners are not educated and experi-

enced mariners, performs an indispensable service,

often a life-saving service, to his clientele. Whether

the survey be conducted for insurance purposes or

for the purchase or sale of a vessel, this examination

may be, in all likelihood, the only one made by an

experienced hand. The landlocked public perhaps

can rely on workmen to inspect and repair most

major household appliances and not be placed in

jeopardy of serious injury or death, at least in the

majority of instances, in the event that the repair-

man inspects in a cursory manner or performs sub-

standard work. But reliance by laymen on such skilled

professionals as marine surveyors to inspect and ad-

vise as to pleasure boats with their sophisticated ma-

chinery, high powered engines and other gear must

be of a different caliber, one of which the law must

take cognizance in a proper case. “There are few

other uses of petroleum fuels by the public in which

9

the fire and explosion hazards parallel those possible

in motor craft.”

Petitioner submits that this is the “proper case.”

CONCLUSION

For the foregoing reasons Petitioner respectfully re-

quests that this Petition for Writ of Certiorari be granted.

Brock & WILLIAMS

Warner F. Brock

250 The Main Building

Houston, Texas 77002

224-6433

CERTIFICATE OF SERVICE

I hereby certify that on this 4 day of July 1973, a

true copy of the foregoing Petifion For Writ Of Certiorari

To The Fifth Circuit Court Of Appeals, was placed in

the United States mail, postage prepaid, to the following

counsels: Mr. James E. Ross, Ross, Griggs & Harrison, At-

torneys At Law, Chamber of Commerce Building, Hous-

ton, Texas 77002; Mr. L. Glen Kratochvil, Attorney At

Law, One Shell Plaza, Houston, Texas 77002; Mr.

William E. Hall, Jr., Attorney At Law, Houston First

Savings Building, Houston, Texas 77002; Mr. Eugene A.

Cook, Butler, Binion, Rice, Cook & Knapp, Attorneys

At Law, Esperson Building, Houston, Texas 77002; Mr.

John Lee Watkins & Hamilton, Attorneys At Law, The

Main Building, Houston, Texas 77002.

ULenasn~F. bok

WARNER F. Brock

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11

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Civil Action No. 68-H-489

(January 21, 1972)

ROBERT B. YOUNG, Plaintiff,

v.

CLEAR LAKE YACHT BASIN, INC., SECURITY

INSURANCE COMPANY OF NEW HAVEN, CAP-

TAIN JACK ROBERTS, JACK YOUNG and YOUNG

FURNITURE MANUFACTURING COMPANY, INC.,

Defendants,

UTICA MUTUAL INSURANCE COMPANY, ALL

RISK INSURANCE AGENCY and MICHIGAN MILL-

ERS INSURANCE COMPANY, Intervenors.

WARNER F. BROCK, Brock & Williams for the Plain-

tiff.

L. GLEN KRATOCHVIL, Schirmeyer & Kratochvil for

Defendant Clear Lake Yacht Basin.

JAMES E. ROSS, Ross, Griggs & Harrison, for Defend-

ants Security Insurance Co. of New Haven, Cap-

tain Jack Roberts and Jack Young.

WILLIAM E. HALL, JR,. and EVERETT L. AN-

SCHUTZ, Jr., for Defendant Young Furniture

Manufacturing Company, Inc.

JONATHAN DAY, Butler, Binion, Rice, Cook & Knapp

for Intervenors Michigan Millers Mutual Insurance

Co. and All Risk Insurance Agency.

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A. J. WATKINS and JOHN LEE, Watkins & Hamilton

for Intervenor Utica Mutual Insurance Company.

MEMORANDUM AND ORDER

Early in 1966, a single engine, twenty-six foot Chris-

Craft Sedan Cruiser, model 1948, was purchased with

funds supplied by Young Furniture Manufacturing Com-

pany, Inc. [hereinafter the Company], and title was taken

in the name of Jack Young, an executive officer of the

Company and brother of the plaintiff. The actual owner-

ship of the vessel is disputed. On April 16 of that year

a Houston independent marine surveyor, Captain Jack

Roberts, made a survey of the yacht TOPAZ, and shortly

thereafter Clear Lake Yacht Basin, Inc. [hereinafter

Clear Lake] was engaged to make certain repairs on the

vessel, some of which were upon the recommendation of

Surveyor Roberts. Prior to and contemporaneously with

the execution of the commissioned work by Clear Lake,

certain officers and employees of the Company, including

the Young brothers, engaged in repair work aboard the

TOPAZ, a major portion of which work was painting,

replacing brightwork, upholstering and other cosmetic

repairs. After Clear Lake completed its repairs on or

about May 7, 1966, Surveyor Roberts certified that the

repairs had been performed satisfactorily on the eighteen

year old pleasure craft. Security Insurance Co. thereupon

issued its policy Y 118 126 to Jack Young on the TO-

PAZ, providing protection and idemnity insurance for

bodily injury for one person in the amount of $50,000.

The Young brothers and Young Furniture Company paid

for the repairs, and all work done on the vessel was

accepted. The TOPAZ was then used for pleasure and

business purposes on several occasions by the Young

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13

brothers over a period of approximately one month prior

to the casualty.

One June 9, 1966, an explosion and fire occurred on

the TOPAZ, seriously injuring the plaintiff, Robert

Young, who was the only person aboard at the time. It

is this event which culminated in the suit now before

the Court. Plaintiff has alleged numerous derelictions of

the defendants including counts of negligence and

breaches of warranty to furnish a seaworthy vessel. These

breaches and the potential liabilities therefor will neces-

sarily be explored in depth, infra, as will the alleged

contributory negligence of plaintiff. The Court’s initial

inquiries, however, must be directed toward the explosion’

itself, its nature, intensity, and proximate cause.

1.

CIRCUMSTANCES LEADING UP TO THE

EXPLOSION

After Surveyor Roberts completed his condition and

valuation survey of the yacht TOPAZ and made certain

written recommendations as to repairs necessary for the

obtaining of insurance coverage,” the Youngs engaged

1. Throughout this opinion, the occurrence will be variously re-

ferred to as an explosion and/or fire. The use of one term or the

other is not intended as a specific finding that both actually occurred.

While this Court does find that a fire occurred, the evidence does not

clearly support an additional finding of an actual explosion, and,

inasmuch as this is not critical to a resolution of the case, no such

finding is made.

2. See plaintiff's exhibit 1, report of survey by Surveyor Jack

— On page 3 of the report, the following recommendations are

made:

(A) Toilet be secured in place, through hull fitting for intake

be reseated and hose clamp be replaced; (B) Fire extinguisher

be located at wheel and at afterdeck while refinishing vessel;

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Clear Lake to accomplish this work on the yacht. The

TOPAZ was hauled out at the Clear Lake yard for about

two weeks commencing in late April and terminating

approximately May 7, 1966. Clear Lake’s employees

completed the recommended repairs which were subse-

quently approved by Surveyor Roberts, and in addition,

they performed separate repairs to the hull which were

requested by the Youngs. As indicated, the TOPAZ was

put back into the water at Clear Lake repair yard in

early May, and subsequently it was operated by either

Jack or Robert Young on a number of pleasure and

business entertainment excursions.* In fact, a total of

almost 150 gallons of gasoline were purchased on several

occasions for the operation of the TOPAZ during this

period of approximately one month.* Also during this

time it is undisputed that no gasoline leakage from any

(C) Broken frame knee on starboard side be replaced or sis-

tered; (D) Deck drain flanges on transom be reseated and

missing screws be replaced; (E) Battery be secured in place and

frayed cable be replaced; (F) Tachometer cable be replaced

and water pump be overhauled; (G) Fuel and vent line be se

cured in place and broken band on tank be replaced with chaf-

fing pad between tank and band; (H) Keel be scarphed in where

split and keel bolts be replaced where bent and damaged; (I)

Shaft bearing be replaced, shaft straightened and propeller be

reconditioned. Rudder is fractured and should be replaced.

3. Also subsequent to the completion of Clear Lake’s work, from

May 7, 1966, to the date of the fire on June 9, 1966, Jack and

Robert Young performed various miscellaneous repairs on the TO-

PAZ.

4. See plaintiff's exhibit 32, receipts for the purchase of gas at

Boat Town on several occasions totaling 147.5 gallons, and testimony

of Robert Young (cross-examination by Mr. Kratochvil), that fuel

consumption of the vessel’s single engine was believed to be approx-

imately six gallons per hour. Assuming the accuracy of such estimate,

this indicates some 25 hours of operation of the TOPAZ, less the

time necessary to consume the disputed quantity remaining in the

tank after such operations.

—————————— ROR SB AK DMARD Caen

15

source was noted on the craft by either Jack or Robert

Young. No test was ever made by plaintiff or any of the

defendants herein for leakage in the gas tank, and, indeed,

no need tor such a test was ever evidenced prior to June

9, 1966.”

On June 9, while the TOPAZ was berthed at Boat

Town Marina in Seabrook, Texas, plaintiff who was alone

had parked his automobile within a few feet of the

covered slip where the vessel was moored and prepared

to go aboard. He immediately smelled strong gasoline

fumes coming from the TOPAZ. He boarded the vessel,

and shortly thereafter the explosion occurred. It is the

sequence of events which took place between the time

plaintiff went aboard and the time of the explosion that

constitutes one of several major areas of sharp dispute

in this lawsuit.

A.

SOURCE OF THE SPARK

There is considerable testimony that plaintiff opened

the engine hatch, determined that the fumes were coming

from the TOPAZ, and then went forward into the cabin

and switched on the electric blower and the electric bilge

pump, with the explosion and fire immediately following.

This is the plaintiff's story. Additionally, after he initially

smelled gas fumes and actually heard gasoline leaking, it

is his version that he reached down into the engine com-

partment and felt gasoline dripping from the gas tank.

Then, either unaware or unmindful of the possible conse-

quences, he proceeded to turn on both the blower and the

bilge pump in an effort to clear the TOPAZ of the com-

5. Testimony of Robert Young.

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bustible fumes which permeated the vicinity. A likely

conclusion suggested by this account would be that the

explosion or fire was caused by gasoline dripping from

the tank which was ignited by an electrical spark from

the energizing of either the blower or the bilge pump.

There is, however, only the most speculative testimony

in this case concerning the condition of the pump and

blower, that is, whether or not they were operational,

whether they were explosion proof, and whether the wires

connecting this gear to their respective starter switches

were in good condition.

A second theory as to the source of the spark was

advanced and developed at the trial. There is evidence

that plaintiff had planned to install a new voltage regula-

tor in the engine compartment on the TOPAZ.° Plaintiff

testified that the voltage regulator had been malfunction-

ing when he had used the boat on one or more occasions,

that he had removed the cover from the voltage regulator

on May 30, when he was last aboard the vessel prior to

the date of the explosion and that the cover had never

been replaced. He also testified that on June 9 he had

brought a new voltage regulator with him in order to

replace the faulty one. There is further evidence in the

record from other witnesses to the effect that a voltage

regulator was seen on the deck near the port side of the

engine hatch on June 9, and that it was still there the

following day.’ However, plaintiff denied actually working

on the voltage regulator on the day of the casualty and

asserted that the voltage regulator was never taken from

his car.

6. Deposition of Robert Young at 42.

7. Deposition of Williams at 22-23; testimony of Surveyor Rob-

erts.

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17

To lend credence to the theory that plaintiff set off

the explosion by causing a spark while replacing the

voltage regulator in the engine compartment, there is

evidence in the record as to the nature of plaintiff's ex-

tensive injuries as well as evidence of probable location

of the greatest concentration of flames on the boat. The

most severe burns which plaintiff received were on his

face, arms, shoulders, thighs and knees; that is, on the

front portion of his body extending from his head to his

knees.”

Testimony and exhibits further establish that the great-

est concentration of flames emanated from the engine

space which is located below the deck and reached

through a hatch immediately aft of the cabin door. Mr.

Cliff Williams, one of the persons who assisted in ex-

tinguishing the fire, testified that the main source of

flames was from the engine hatch.’ The plaintiff likewise

indicated this to be a major source of fire, testifying that

he tried to leave the cabin after starting the pump and

blower and hearing the explosion, but was blocked by

a “wall of flame” immediately outside the door.’® In line

with such testimony, plaintiff's expert, Mr. Lynn Mc-

Waters, a consulting chemical engineer and certified

marine chemist, testified that the area most severely

damaged by the fire was the starboard side of the engine

compartment. There is further proof to the effect that,

considering the relatively minor amount of burn damage

8. Testimony of Robert Young on cross-examination by Mr. Ross;

deposition of Williams at 28-29.

9. Deposition of Williams at 30.

‘ 10. Testimony of Robert Young on cross-examination by Mr.

Oss,

Retisitiiiceinte rere cict atest

18

shown to have occurred aboard the TOPAZ, although

the initial burst of flame was of great intensity, the dura-

tion of the fire was very short.’' The suggested conclusion

which the defense urges should be reached from an analy-

sis of this evidence is that the plaintiff was not in the

cabin when the fire or explosion occurred, bu* was stand-

ing or squatting over the open engine hatch changing a

voltage regulator and, while so occupied, he struck a

spark in some manner which ignited the gasoline.”*

B.

SOURCE OF THE FUEL

It is the plaintiff's thesis in this lawsuit that the source

of gasoline which fueled the fire causing his injuries was

the leaking gas tank on the TOPAZ which Surveyor

Roberts and personnel at Clear Lake should have de-

tected and corrected. The plaintiff's testimony that he

felt gasoline dripping from the bottom of the gas tank

shortly before the fire has been vigorously challenged

by Surveyor Roberts who related that it is physically

impossible for a person to reach or feel the bottom of

the gas tank from a position on the deck. According to

Roberts the only way such an examination of the tank

could be made without removing the tank would be to

lie prone in the bilges.

There is further testimony contradictory of plaintiff's

version. Surveyor Roberts testified that his original survey

of the TOPAZ including visual inspection of the gas tank

and all attachments, during which he crawled into the

11. Testimony of Dr. Gary Fisher.

12. Deposition of Williams at 27-31.

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19

bilges of the vessel and examined the bottom of the tank.

He found no significant corrosion or damage to the tank

which would evidence a leak, and, indeed, he found no

leak. Both Surveyor Roberts and Mr. Gerald Holderby

employed by Clear Lake testified that on or about June

13, some three or four days subsequent to the fire, they

conducted a hydrostatic test of the gas tank in its cradle

and still found no leakage. In order to make the test,

they had to fill the remaining space in the tank with

water which took approximately a half hour. A full tank

of mixed gas and water remained after the test was per-

formed.

The plaintiff's expert, Marine Surveyor Lynn McWa-

ters also looked into this aspect, and his testimony casts

the record into a state of irreconcilable confusion. Al-

though the written report of his findings was not offered

into evidence, McWaters related that he examined the

gas tank on board the TOPAZ on July 26, over six weeks

after the casualty, and physically removed the tank from

the vessel on August 2. He thereupon drained the tank

which was approximately two-thirds full of gasoline, and

transported it by truck to his testing laboratory in Hous-

ton where he filled it with water. Rust was then scraped

from the outer surface of the tank, and a small leak

appeared, indicating to McWaters that the interior of the

tank had rusted or corroded.

If Mr. McWaters is to be believed, then other testimony

at the trial is necessarily cast in jeopardy. The reverse

is also true. Either no hydrostatic testing was done by

Mr. Holderby and Surveyor Roberts on June 13, or at

some time between June 13 and July 26, a quantity of

gasoline found its way into the tank. Otherwise, it could

not be two-thirds full of fuel when examined by Mr.

Y aaa ESE

rE ~

20

McWaters. It is equally evident that plaintiff's own ex-

amination of the tank on June 9, the day of the fire, can

only have been less than conclusive, if it is in truth physi-

cally impossible to touch the bottom of the tank from

any position on the deck of the TOPAZ as indicated by

the testimony of Surveyor Roberts. The Court is thus

left with unchallenged evidence only that the tank did

leak some six weeks after the explosion and fire, after

it was removed from the TOPAZ, after it was hauled

some miles in a pickup truck from LaPorte to the testing

laboratory on Harrisburg Boulevard in Houston, and after

it was filled with water and scraped.

Were it necessary to dissect each and every facet of

asserted causation in order to resolve the issue of liability

in this case, the multiple problems on credibility would

be virtually insurmountable. Fortunately, when all of the

proof is fairly assessed, it becomes evident that it is un-

necessary to resolve the hotly disputed issue as to whether

or not the gas tank leaked on June 9, 1966, the date

of the fire. This is so because there is a significant inter-

vening period of time after the Young brothers took

delivery and assumed custody and control of the vessel

from Clear Lake and the date of the casualty. By that

date Robert and Jack Young had already been using the

TOPAZ for over a month on business and pleasure

cruises and had burned almost 150 gallons of gasoline

in operating its single engine without any semblance of

a leak in the gasoline tank or any where else on board.

The critical point in time as concerns the liability of the

various defendants thus becomes May 7, 1966, the date

that the repair work of Clear Lake was accepted and

possession and control of the TOPAZ returned to the

plaintiff and his brother. Similarly, the tests and surveys

21

conducted on the vessel at various times subsequent to

the explosion and fire are also non-determinative, inas-

much as they fail to relate back to May 7 or even to

June 9, 1966, the date of the fire.

As for other testimony at the trial, there is a dearth

of persuasive evidence supportive of the size and nature

of the leakage allegedly found by the plaintiff. From

July 26 to August 2, six or seven weeks after the fire,

there was little or no leakage from the gas tank. The

small amount of change (one inch) in the level of gaso-

line in the tank was no more than that normally expected

from evaporation or from a discrepancy in measuring

or “sticking” the tank.’* Surveyor Roberts, Mr. Holderby

and Mr. Williams all testified that they smelled no gaso-

lines fumes after the explosion and fire. On the other

hand, Mr. Solomon testified that he could smell gas in

the bilge of the TOPAZ some time subsequent to the

explosion when he cleaned and washed the bilges, and

Jack Young, the plaintiff's brother, testified that there

were strong gas fumes present on the Saturday following

the fire. Obviously, these versions cannot be reconciled,

and the Court must look elsewhere in the proof.

Other factors militate in favor of little or no leakage

from the gas tank which can be causally related to the

casualty. The great weight of the evidence indicates a

fire of short duration, a flash fire accompanied by a dull

“thud” or “whoosh” rather than an actual explosion.*

This account is supported by the fact that the TOPAZ

was only slightly damaged by the fire."° The wooden

13. Deposition of McLaughlin at 52-54.

14. Testimony of Robert Young.

15. Photographs, Plaintiff’s exhibits 78 and 79.

torso

- . iredgien .

| RS

ae

Praeeiséornn: Ac ichte

22

cradle upon which the starboard side of the gas tank

rested, and which lay directly under the section of the

tank allegedly leaking, was virtually undamaged, as was

the padding between the tank and cradle. Little scorching

or blistering occurred on the painted surfaces of the vessel

in the vicinity of the gas tank. The tank did not explode

and showed no fire damage.’* The cumulative effect of

this proof weighs heavily against the existence of a leak

in the gas tank on June 9 or at any time prior thereto,

particularly the existence of a leak of such size that gaso-

line could be heard or felt dripping beneath the tank.

Speculation as to the source of the fuel which was

ignited is plentiful in the record of this case. Gasoline

could have been deposited in the bilge of the TOPAZ

as a consequence of spillage during refueling or perhaps

by leakage or overflow from the dual carburetors, the

latter being a common problem in the design and make

of the particular engine installed on the TOPAZ." AI-

though leakage or overflow from the dual carburetors

would provide only a very limited fuel source, perhaps

a teacup full of gasoline, the presence of this small

amount in a vaporous state and enclosed beneath the

deck of the vessel is viewed as entirely consistent with

the type of fire that occurred.**

A further complicating factor in determining the source

of the fuel is created by testimony that the TOPAZ,

16. Testimony of McWaters and Holderby.

17. Testimony of Mr. Holderby.

18. But see plaintiff’s exhibit 87, a speed memo from John Barnes

of Wm. H. McGee & Co., dated June 10, 1966, reporting on Sur-

veyor Roberts’ post-explosion examination of the TOPAZ:

Surveyor viewed boat today and reported all gasoline connec-

tions|,] fill lines and vents proper[;] however there was about

2” of gasoline in bilge.

23

similar to most Chris-Craft vessels of like design, nor-

mally lies afloat somewhat down by the head, that is,

with the bow section of the vessel lower in the water

than the stern.’ Thus, assuming that there was gasoline

floating on the water in the bilge, it is suggested that

such water and gasoline could have passed through the

limberholes in both the longitudinal frame the (keelson)

and the transverse frames (the ribs), and thence toward

the bow. The argument is made that this accounts for

the presence of flames coming through the deck of the

cabin and the amount of fire damage which resulted in

the cabin. However, in all fairness this situation might

also be urged to account for the presence of minimal

damage in the vicinity of the gas tank, well astern of

the cabin, even if the tank were thought to be leaking.

This Court finds itself confounded in its efforts to

forge solid links in a chain of credible, consistent and

conclusory proof as to how this casualty occurred.*® How-

ever, it is not alone in this respect. Captain Eugene

20. The record is replete with antithesis of which these are ex-

amples: The plaintiff testified that he leaned down from the deck to

feel gasoline dripping from the tank; Surveyor Roberts stated that

such an act is physically impossible. Three witnesses were sure they

smelled no gasoline after the fire; two others did smell fumes around

the same time. Cliff Williams could recall some five years later a

voltage regulator and Delco-Remy box aboard the TOPAZ on June

9, 1966; Robert Young could recall never having taken the purchased

voltage regulator on the TOPAZ. A hydrostatic test was performed

on the gas tank by Surveyor Roberts and Mr. Holderby, about June

12, 1966, by filling the remaining space in the tank with water in

an abortive effort to force gasoline out through the vent line; a full

tank remained after the test; yet on August 2, 1966, Mr. McWaters

again drained the same 45 gallon tank of 25 to 30 gallons of gasoline

before performing a similar hydrostatic test which revealed a damp

area on the tank.

19. Testimony of Surveyor Roberts.

Papaee oY) ]

Preicdverxs Pad

24

McLaughlin, a yacht broker and marine surveyor, testi-

fied that he could not determine the cause of the fire.*'

Surveyor Roberts testified similarly. Mr. Bill Jones, a

yacht man of some 35 years experience and also a marine

surveyor, testified that he could venture no opinion as to

the cause of the fire. Mr. Gerald Holderby, president and

past general manager of Clear Lake Yacht Basin, ven-

tured an opinion as to gasoline leakage or spillage from

the dual carburetors of the TOPAZ, but he equivocated

later in his testimony, stating that gasoline could have

come from a number of places. Surveyor Lynn McWaters

ventured an opinion that the spark could have emanated

from the fathometer cable, which was heavily burned,

but he agreed that other sources were also present.

When all is said and done including the careful weigh-

ing of the credibility of the witnesses in this case, the

conclusion to be reached is that the plaintiff simply has

not met his burden of proof. He has failed to demonstrate

by a preponderance of the evidence that the alleged dere-

lictions of one or more defendants contributed to cause

the fire and explosion; instead, a record has emerged

from this trial which is replete with confusion and con-

tradiction. Under these circumstances, this Court, there-

fore, does not feel warranted in selecting any one of the

various theories of causation brought out in the testimony, ©

as none fairly stands up under scrutiny. To the contrary,

certain other evidentiary matters are clear and can be

reliably used in reaching a result.

The Court does find that the explosion and fire were

proximately caused by some act, event or condition

initiated by the plaintiff while the vessel was in his ex-

21. Deposition of McLaughlin at 68.

eee ————e

25

clusive control and possession.** The Court does find that

the gasoline tank did not leak on or before May 7, 1966,

at which time the plaintiff and/or Company inspected and

accepted the repair work performed by Clear Lake, and

took possession of the TOPAZ. On the basis of the testi-

mony of the plaintiff himself and his brother, the Court

does find that the gasoline tank did not leak while in

their possession and under their control after May 7 and

before June 9, 1966. However, this Court does not make

a finding as to whether the gasoline tank leaked on the

date of the fire, June 9, 1966, and, indeed, it is unneces-

sary to do so in order to resolve this case. The absence

of further findings of fact as to the source of the fuel

is not determinative of this suit, inasmuch as recovery

against all defendants must necessarily be denied, even

assuming, arguendo, that all facts occurring on the date

of the casualty and thereafter were found exactly as

alleged by plaintiff.

Il.

THE NEGLIGENCE OF THE PLAINTIFF

If, it is assumed, arguendo, that the plaintiff, in fact,

did no work on the voltage regulator or any other wiring

on the TOPAZ, and it is further assumed, as plaintiff

alleges, that the spark was caused by some defect in the

22. Plaintiff has repeatedly tried to establish some legal connec-

tion between Clear Lake Yacht Basin and Boat Town Marina, to

support his contention (1) that Boat Town conducted or should have

conducted periodic checks on all vessels berthed at that facility and

(2) that Clear Lake is responsible for the failure of the Boat Town

attendant to discover gasoline fumes on June 9, 1966. The Court

finds, on the evidence presented, that the two were separate business

entities (testimony of Mr. Holderby), and that in any event the

TOPAZ was in the possession and control of the Youngs, rather than

the Boat Town personnel.

Peinates icons: siiitd aialeboanisierved 3

DA SORE EP NEP TES TDS

26

wiring or switches of the bilge pump or blower, plaintiff's

actions were so patently wrong that this Court must con-

clude his own negligence proximately caused the explo-

sion and fire. No reasonably prudent man acting under

the same or similar circumstances, that is, a man board-

ing a vessel absolutely reeking with the odor of gasoline,

and then hearing and feeling gasoline drip from the gas

tank, would proceed to activate any electrical apparatus.

This is so, even if the electrical gear was in perfect work-

ing order, given the attendant and foreseeable risk of

generating a spark from such equipment which could

ignite the heavy concentration of gas fumes, cf. In re

Reading, 169 F.Supp. 165 (N.D.N.Y. 1958), aff'd, 271

F.2d 959, 1960 A.M.C. 214 (2d Cir. 1959). Plaintiff's

own testimony reflects beyond question that he knew and

fully appreciated the danger of explosion or fire before

he pulled the switches to activate the electric blower and

the electric bilge pump.

Ill.

THE REASONS FOR NON-LIABILITY OF THE

DEFENDANTS

Notwithstanding plaintiff's failure to prove by a pre-

ponderance the causative facts of the explosion and fire,

and irrespective of this Court’s conclusion that plaintiff's

negligence was the proximate cause of the occurrence,

there are other strong factors which preclude the directing

of a recovery in favor of plaintiff against any of the de-

fendants in this case. Normally, under such circumstances,

the Court would go no further in making its findings.

However, since the opinions and conclusions arrived at

are the composite result of plaintiff's inability to meet his

a a nace

27

burden of persuasion as well as the result of affirmative

findings distilled from the other evidence including the

making of credibility choices, where necessary, this Court

feels obligated to rule as well on the specific theories of

liability advanced by the plaintiff against the various

defendants.

A.

CLEAR LAKE YACHT BASIN, INC.

Plaintiff alleges that, in making repairs to the TOPAZ,

Clear Lake warranted that the TOPAZ, including the

gas tank, was reasonably fit for the purpose for which it

was intended, that it was free of defects and that this war-

ranty was breached.

This Court cannot find that Clear Lake made any

general warranty of fitness or freedom from defect, either.

express or implied. First, Clear Lake was not hired to

survey the vessel and make all repairs necessary to place

such vessel in a seaworthy condition. Clear Lake was

hired to make certain specific repairs on the TOPAZ, as

listed in the survey report of Surveyor Roberts and as

supplemented by independent requests for certain hull

repairs by the Company or the Young brothers, cited

supra. Not included in the specific work order and not

authorized or ordered separately were testing, repair or

replacement of the gas tank. Even assuming, arguendo,

that some duty developed upon the repairman to advise

the owner of the TOPAZ that the gas tank was leaking

or would probably leak, the evidence established, and this

Court so finds, that the gas tank was not leaking while

in the possession and control of Clear Lake. Nor was

the tank in such a deteriorated condition that normally

Mere?

wyage

Etnitietle Hh Ds te CRER Bie ae mn

StS i aac vr met 4

Pittitcetsricsiire. APES Laas sos Wed Bia Rede OLE

SES Se CENTER DE aa? Si

28

careful observation would indicate a defect likely to occur

in the future. Plaintiffs’ own testimony is that he never

requested or authorized any work to be done on the gas

tank, nor did he ever have any reason to suspect that

such work should be done prior to the date of the explo-

sion. No witness testified to the presence of gasoline

fumes or leaks prior to June 9, more than thirty days

after the TOPAZ left Clear Lake’s facilities on May 7.

The fire occurred approximately a month after the second

examination of the vessel by Surveyor Roberts, after

acceptance by the Young Brothers and the Company of

all repairs done by Clear Lake and after repeated use

of the vessel by one or both of them for various pleasure

and business excursions. The vessel was and had been

for sometime under the exclusive control and possession

of the Company and the Young brothers. Under the evi-

dence presented at the trial of this case, there is no

legally sound way for this Court to find that any defect

in the TOPAZ or her appurtenances that might have

existed on or after June 9, 1966, also existed on or before

May 7, 1966, or that any such defect should have been

discovered by Clear Lake. Cf. The Wheeler-Shipyard Hull

No. 304, 1 F.Supp. 402 (E.D.N.Y. 1932).

If it is assumed, as this Court believes it must, that no

traceable defect in the TOPAZ existed for Clear Lake

to discover and repair, then it must necessarily follow

that Clear Lake cannot be held liable to the plaintiff.

However, it is also a general rule that an independent

Contractor such as Clear Lake cannot be held liable for

injuries resulting from defects traceable to such contrac-

tor’s failure to satisfactorily complete his repairs, once

the owner of the vessel has accepted the work and taken

possession and the defect is observable to the owner

29

upon a reasonable inspection. See Hartford v. Coolidge-

Locher Co., 314 S.W.2d 445 (Tex.Civ.App.—San An-

tonio 1958, no writ), 27 Am. Jur. 2d, Independent Con-

tractors § 49 (1968). Although this theoretical alternative

is not factually relevant here, the legal result is the same.

Clear Lake can have no liability to the plaintiff on a

warranty or a negligence theory.

Lastly, the claims alleged by plaintiff against Clear

Lake based upon the warranty of seaworthiness are legally

invalid, inasmuch as the warranty is (1) a nondelegable

duty of the shipowner, and is (2) extended only to sea-

men and those shore-based workers who perform work

traditionally done by seamen, Seas Shipping Co. v.

Sieracki, 327 U.S. 85 (1946); Mahnich v. Southern S.S.

Co., 321 U.S. 96 (1944). Clear Lake is not the vessel

owner and does not stand in the position of any other

who owes the warranty such as an owner pro hac vice;

the plaintiff is not a seaman and, upon the evidence before

this Court, cannot be said to be engaged in work tradi-

tionally performed by seamen. The TOPAZ was a pri-

vate pleasure craft. It was used in such a manner at

all times material to this suit, and it did not have a

crew. Although it was manned by either Robert or Jack

Young or both, whenever it was operated, their “sporadic

contacts for brief periods of time” aboard the TOPAZ

fall far short of meeting the criteria established to place

them in a position to enjoy the status of seamen, Labit

v. Carey Salt Co., 421 F.2d 1333 (Sth Cir. 1970);

Offshore Co. v. Robison, 266 F.2d 769 (Sth Cir. 1959)

and cases cited therein.

These findings by the Court resolve the question of

whether the warranty of seaworthiness is owed by any

defendant to the plaintiff herein, since the plaintiff simply

RADE eR =a

t PRR RAKE ice

30

cannot qualify to be characterized as falling within the

class of persons protected by such a warranty. That being

so, it is unnecessary to resolve the question of owner-

ship of the yacht TOPAZ as it relates to the issue of

seaworthiness.

B.

SECURITY INSURANCE COMPANY

OF NEW HAVEN

A policy of insurance was issued to Jack A. Young by

Wm. H. McGee & Co. which is the general agent and

marine manager in Texas for Security Insurance Co. of

New Haven. Under the provisions of this policy written

on a Security Pleasure Purpose Yacht Form, the hull

of the TOPAZ was insured for $2,600 and the Protec-

tion and Indemnity Insurance coverage insured Jack

Young against liability for loss of life and bodily injury,

with coverage as to any one person limited to $50,000.

Plaintiff contends that the issuance by McGee of

Security’s insurance policy constituted an express or im-

plied warranty by Security that the TOPAZ was reason-

ably fit as a yacht and was therefore seaworthy for all

purposes. This contention is overly broad and obscures

the true legal relationship. An underwriter, by request-

ing and receiving a condition and valuation survey as

well as a report that survey recommendations had been

met, and by issuing a policy on the vessel predicated upon

such survey information, can be said to have admitted

seaworthiness of the yacht for insurance purposes. In

short, the vessel is found to be insurable by the insuror

vis-a-vis the insured pursuant to policy conditions. How-

ever, these acts of the underwriter do not constitute any

2 Lie ARI LIBEL OTR AY TS

31

warranty of seaworthiness analogous to that owed by a

shipowner to seamen or any other category of person

including the plaintiff who may see fit to fashion such a

remedy.

Inasmuch as Security can therefore only be liable

under the policy to the extent that its assured, Jack

Young, is liable, his status requires examination. For rea-

sons discussed in detail in section C, infra, this Court

finds that Jack Young is not liable to the plaintiff under

any theory advanced in this lawsuit. Accordingly, Se-

curity has no liability to plaintiff under the policy in

question as a consequence of the activities or status of

Jack Young.

No contention has been made that Security committed

any tort, either negligent or intentional, whether by mis-

feasance or nonfeasance. It has been urged, however,

that Surveyor Roberts, in performing his survey, acted as

an agent of Security, that he was negligent and that his

negligence should be imputed to Security. This Court

finds from the evidence, however, that Surveyor Roberts

was not an agent of Security and that he was, instead, an

independent contractor, engaged either by Jack Young

or Robert Young to perform a condition and valuation

survey for insurance and appraisal purposes. Robert

Young testified that Surveyor Roberts was recommended

by Mr. Ralph Zinnecker, Assistant Manager of Clear

Lake, to make the survey. Jack Young testified that Billy

Gilbert, then employed by Wm. H. McGee & Co., rec-

ommended Surveyor Roberts.** Assuming, arguendo, that

Mr. Gilbert of Wm. H. McGee & Co. did recommend

Roberts from an approved list of marine surveyors, this

23. See also deposition of Billy Gilbert at 18.

Beiset cr ccns ne

32

Court can only conclude that Surveyor Roberts was actual-

ly hired by the insured, Jack Young,”* and was not in any

legal sense an agent of Security.

One of the prime elements necessary to establish an

agency relationship is “the existence of some degree of

control by the principal over the conduct and activities

of the agent.” 3 Am. Jur. 2d, Agency, § 2 (1962). Courts

have construed this rule to mean that, even though a

principal employs another to achieve a certain result, if

the principal has no right of control over the manner

and method by which that result is reached, then the

negligence of the actor is not imputed to the principal,

Walter Irvin, Inc. v. Vogel, 158 S.W.2d 93 (Tex. Civ.

App.—Amarillo 1942, writ ref'd w.o.m.); Restatement of

the Law Second; Agency § 250 at 549 (1958). Cf. News-

papers, Inc, v. Love, 380 S.W.2d 582 (Tex. Sup. 1964).

In the instant case, there was merely a recommendation

made by an employee of Wm. H. McGee & Co. that

Surveyor Roberts would be a competent marine sur-

veyor. Security Insurance Co. did not hire Surveyor

Roberts and did not pay his fee;*° it had no right to, and,

in fact did not, exercise any control over the manner

and mode of Roberts’ performance of the survey. Simi-

larly, Wm. H. McGee & Co., through which Security

acted, is an independent contractor over which Security

exercises no control. This is particularly so in connec-

tion with marine insurance matters in which McGee acts

as insurance manager, rather than agent for Security.

24. Testimony of Surveyor Roberts; see deposition of Billy Gil-

bert at 67-68.

25. It was agreed that McGee would pay Surveyor Roberts’ fee

if McGee wrote insurance coverage on the TOPAZ.

2 DS he NP RON PE A DAR ACIS al AOE TS .

a

hie

33

Security, therefore, is not chargeable with the liability for

any of McGee’s actions.

Contrary to another of plaintiff's contentions, and irre-

spective of the actual ownership of the yacht TOPAZ,

Security is not liable under its policy issued to Jack

Young for any duties owed to the plaintiff by Young

Furniture Mfg. Co. It is Jack Young, individually, and

not the Company that is the assured. There is testi-

mony to the effect that Wm. H. McGee would not have

written insurance for a corporation on a Yacht Form in

return for a pleasure purpose premium rate, since the

potential liabilities of the corporation were much greater

than those in situations where an individual is concerned.*°

In short, a larger premium would have been charged to

the corporate client. This Court cannot find any basis

in the record justifying reformation of the policy so as

to obligate Security to insure the Company, absent a

showing that the named assured was so designated as

a matter of mutual mistake, particularly since reforma-

tion in this case would extend the risks covered by the

insurer without any consideration for such an extension,

J. Appleman, 4A Insurance Law & Practice § 2914 at

649 (1969). See also, J. Appleman, 13 Insurance Law

& Practice § 7618 at 390-91 (1943).

Finally, this Court finds that Robert Young compro-

mised and settled his claim for personal injuries result-

ing from the explosion and fire aboard the TOPAZ

by his endorsement of Wm. H. McGee & Co.’s settle-

ment draft in the amount of one thousand dollars, which

draft reads:

26. Testimony of John Barnes.

Bee

Pee ABET a 5 EE a a. Biren ea te 3 ‘ ehas. L

= GEESE

34

being in full payment and satisfaction of all claims

and demands for loss, damage or expense for: All

losses and/or personal injuries sustained from fire

and/or explosion of subject vessel.

His acceptance of the same in a case such as this where

liability is disputed, notwithstanding the attempt to vary

the terms of the draft by unilaterally marking through

certain portions of the material quoted, supra,”" operates

as a bar to further claims on the assured or his insurer,

Groves v. Sawyer, 384 S.W.2d 193 (Tex. Civ. App.—

Eastland 1964, writ ref'd n.r.e.).

C.

JACK A. YOUNG AND YOUNG FURNITURE

MANUFACTURING CO.

Plaintiff alleges that either Jack Young or the Con-

pany is the owner of the TOPAZ, and that the party found

to be the owner by the Court is liable to plaintiff for

breach of the warranty to furnish a seaworthy vessel.

Plaintiff further contends that if Jack Young is found

to own the TOPAZ, then the Company should be con-

strued to occupy the position of bareboat charterer or

owner pro hac vice. This Court has already discussed

and ruled on the question of the doctrine of seaworthiness

and its inapplicability to this plaintiff for reasons inde-

pendent of any ownership question, section A, supra.

Such discussion and ruling are dispositive of the issue.

No allegations have been made that Jack Young was

negligent, and no evidence has been presented which

could support such an allegation. This Court therefore

27. See defendant Security’s exhibit 1.

35

finds that Jack Young has breached no duties owed to

the plaintiff, nor has he in any manner contributed to

plaintiff's injuries.

It is contended that Young Furniture Mfg. Co., Inc.

owed a duty to the plaintiff to furnish him a safe place

to work as he cleaned and serviced the TOPAZ in prepa-

ration for the entertaining of clients of the Company.

If any such legal duties are theoretically owed to sea-

men or land-based marine workers by the Company under

the facts of this case, they are clearly inapplicable to

the plaintiff who does not qualify under either category.

The only possible relationship between the Company

and the plaintiff, a company executive officer, which is

conceivably productive of such a duty is that of employer-

employee, breach of which is compensable under the

Texas Workmen’s Compensation Act. The pre-trial order

and the final judgment of the State Court** filed in this

case establish that plaintiff made a claim in state court

against the compensation carrier for Young Furniture

Mfg. Co., his employer, which claim was settled during

the trial thereof, but before the issue had gone to. the

jury.” This recovery, accepted as a full and final settle-

ment, precludes any further recovery by the plaintiff from

the Company, Huckabay v. Hughes Tool Co., 122 S.W.2d

233 (Tex. Civ. App.—Galveston 1938, writ dism’d); see

Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705

28. Defendant Clear Lake’s exhibit 4.

29. Plaintiff recovered in settlement the total sum of $32,500 less

attorney’s fees, of which Utica Mutual Insurance Company paid

$16,500, and J. R. Martin, Jr., Robinson & Company, and All Risk

Insurance Agency, jointly and severally, paid $16,000. Intervenors in

this lawsuit are subrogated insurors, and have intervened in an effort

+ recover such payments out of any judgment awarded to the plain-

tll.

Rate oes pei Diesireriz’s

Si a i a ee ee a

36

(Tex. Civ. App.—Dallas 1963, writ ref'd n.r.e.). Further-

more, this Court finds that the Company was not negli-

gent and that it in no way contributed to the plaintiff's

injuries.

D.

SURVEYOR JACK ROBERTS

Although this Court has already treated and dismissed

the contention of plaintiff that an agency relationship

exists between Security and Surveyor Roberts out of which

the liability of either party to plaintiff ensues, there re-

mains for consideration plaintiff's alleged cause of action

against Roberts individually. Specifically, plaintiff con-

tends that both the initial marine survey of the TOPAZ

and the re-examination and report prepared subsequent

to the completion of vessel repairs by Clear Lake con-

stituted an express or implied warranty by Roberts that

the TOPAZ would be reasonably fit for the purpose for

which it was intended when all recommended repairs

had been completed.

As was the situation in the case of Clear Lake, it is

impossible from the record of the trial of this case to

find that Surveyor Roberts’ actions were a proximate

cause of plaintiff's injuries. The negligence of the plain-

tiff, the intervening period of time subsequent to the

completion of repairs and relinquishment of custody by

Clear Lake, the use for pleasure to which the vessel was

put by the Young brothers during such time plus a total

lack of proof in a confused record as to causal facts link-

ing this marine surveyor to the casualty compel this

Court to find no liability against this defendant.

Although liability cannot be affixed against Surveyor

Roberts under the facts of this case, the relationship of

37

a marine surveyor to the growing number of people own-

ing pleasure boats is worthy of note. As in any profession

calling for the exercise of judgment and expertise, there

are no rigid guidelines for marine surveyors covering all

situations. Yet common sense as well as the law dictate

that there is a level of performance below which a sur-

veyor cannot go and escape exposure to liability where,

contrary to the present case, such performance can be

proven to be causally related to the casualty.

Surveyor Roberts is a marine surveyor of some eighteen

years experience, much of his work being in the pleasure

craft field. His testimony in this case reflects that the

type of marine survey which is performed in a given

instance varies greatly with the situation. For example,

a vessel which was being purchased would normally be

given a thorough examination, and a survey report setting

out in detail all defects and potential hazards would be

issued. On the other hand, a survey for insurance purposes

on a vessel already purchased by the person requesting

the survey would be, by comparison, rather limited in

scope and duration.*° The survey conducted on the TO-

PAZ was of the latter variety, taking some three hours

from start to finish including travel time which was esti-

mated to be 1% to 2 hours. Recognizing that this Court

has found no casual relationship between Surveyor Rob-

erts’ actions and this plaintiff's accident, the question

might well be asked by a layman as to whether a thorough

survey could be made upon a vessel of the size, age and

condition of the TOPAZ in the space of an hour to an

hour and a half.

30. Direct testimony of Surveyor Roberts when called as a wit-

ness for defendants.

38

Surveyor Roberts further testified that of the three to

five marine surveyors in this area who specialize in a

yacht practice, most conform to the same standards which

he himself seeks to apply to his surveys, namely the

National Fire Protection Association release No. 302

(1966).** Although no specific provisions contained in

this manual were alluded to at the trial, it is obvious

from a review of this exhibit that the Fire Protection

Standard for Motor Craft is a high one:

The purpose of this Standard is to provide guidance

for the prevention of fuel leakage, the elimination

of possible sources of vapor ignition from particu-

larly dangerous locations, the provision of adequate

means for keeping vital areas ventilated at all times,

the avoidance of unnecessary use of combustible

materials in exposed locations and the provision of

proper fire extinguishing equipment.

(Introduction, plaintiff's Exhibit 123).

A marine surveyor, particularly one who engages in

the burgeoning pleasure boat field where the majority of

boat owners are not educated and experienced mariners,

performs an indispensable service, often a life-saving serv-

ice, to his clientele. Whether the survey be conducted for

insurance purposes or for the purchase or sale of a vessel,

this examination may be, in all likelihood, the only one

made by an experienced hand. The landlocked public

perhaps can rely on workmen to inspect and repair most

major household appliances and not be placed in jeopardy of

serious injury or death, at least in the majority of in-

stances, in the event that the repairman inspects in a

cursory manner or performs substandard work. But reli-

31. Plaintiff’s exhibit 123.

39

ance by laymen on such skilled professionals as marine

surveyors to inspect and advise as to pleasure boats with

their sophisticated machinery, high powered engines and

other gear must be said to be of a different caliber, one

of which the law must take cognizance in a proper case.

“There are few other uses of petroleum fuels by the

public in which the fire and explosion hazards parallel

those possible in motor craft.”*”

IV.

The Court having found against the plaintiff and for

the defendants on the liability issues, it becomes unneces-

sary to explore and pass upon the issues of damages and

intervention. The above constitute this Court’s Findings

of Fact and Conclusions of Law. Counsel will submit

within twenty (20) days a proposed Order consistent

with this Memorandum. Clerk will notify counsel.

Done at Houston, Texas, this 19th day of January,

1972.

Signed:

CARL O. BUE

United States District Judge

True Copy I Certify

By: MILDRED THOMAS,

Deputy Clerk

32. Introduction, plaintiff’s exhibit 123.

De eT th

40

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1972

No. 72-2967

Summary Calendar

D. C. Docket No. CA 68-H-489

ROBERT B. YOUNG,

Plaintiff-Appellant-Cross Appellee,

versus

CLEAR LAKE YACHT BASIN, INC., et al,

Defendants-Appellees,

UTICA MUTUAL INSURANCE COMPANY,

ALL RISK INSURANCE AGENCY and

MICHIGAN MILLERS MUTUAL

INSURANCE COMPANY,

Intervenors-Appellees-Cross Appellants.

Appeal from the United States District Court for the

Southern District of Texas

Before BELL, GODBOLD and INGRAHAM, Circuit

Judges.

Skea

SE

41

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Texas, and was taken under sub-

mission by the Court upon the record and briefs on file,

pursuant to Rule 18;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of said District Court in this cause be, and the same is

hereby, affirmed;

It is further ordered that plaintiff-appellant-cross appel-

lee pay to defendants-appellees the costs on appeal to be

taxed by the Clerk of this Court.

March 7, 1973

Issued as Mandate:

42

APPENDIX C

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 72-2967

Summary Calendar

(Filed April 6, 1973)

ROBERT B. YOUNG,

Plaintiff-Appellant-Cross Appellee,

versus

CLEAR LAKE YACHT BASIN, INC., et al,

Defendants-Appellees,

UTICA MUTUAL INSURANCE COMPANY,

ALL RISK INSURANCE AGENCY and

MICHIGAN MILLERS MUTUAL

INSURANCE COMPANY,

Intervenors-Appellees-Cross Appellants.

Appeal from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING

(April 6, 1973)

43

Before BELL, GODBOLD and INGRAHAM, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby denied.