Appeal from judgment entered in the United States District Court for the District of Connecticut, Thos. F. Murphy, Judge, dismissing all claims of claimants-appellants against the petitioner and third-party defendants and the claim of third-party plaintiff against third-party defendants. Affirmed.
Lumbard and Hays, Circuit Judges, and Jameson, District Judge.*fn* Hays, Circuit Judge (dissenting).
Rose Santini, as administratrix of the Estate of Aldo Santini, Deceased, and The State of Connecticut have appealed from a judgment denying them recovery of damages from Howard Klarman, Town of Westport and Frederick Kellogg, Jr., as the result of a boating accident on the navigable waters of the Saugatuck River in Connecticut on July 26, 1964, in which Aldo Santini was fatally injured. The Town of Westport and Kellogg have appealed from the denial of their indemnity claim against Klarman for counsel fees and expenses.
At about 4:30 P.M. on July 26, 1964 Klarman and several guests boarded the 28-foot Fling at Westport Harbor for a sail on Long Island Sound. Under power the Fling headed south along the main channel of the Saugatuck River. Near Buoy No. 13 off Bluff Point, it ran aground on the mud or sand bottom while being piloted by Klarman's brother-in-law. Klarman attempted unsuccessfully to back out of the strand by using the Fling's engine. A private motor cruiser was hailed and also tried unsuccessfully to free the Fling by towing from her bow.
At about 4:45 P.M. the Marine I arrived on the scene. The Marine I, a 26-foot launch powered by a 125 horsepower engine, was owned by the Town of Westport and operated as a patrol boat by its Police Department. It was under the command of Kellogg, a member of Westport Police Department.
Aldo Santini was aboard the Marine I as a volunteer member of the Westport Civil Defense, receiving on-the-job training as an auxiliary police officer.*fn1 This was his first and only time aboard the Marine I. Kellogg testified that Santini was not "more or less permanently attached" to the Marine I, that the sole reason for his presence on the launch was to receive on-the-job training, and that he was not really "supposed to do anything". Kellogg normally operated the Marine I by himself, the only exception being when an auxiliary policeman was assigned to accompany him on patrol.
Klarman hailed Kellogg for assistance. Prior to rendering aid, Kellogg prepared and had Klarman sign an agreement by which he accepted "full responsibility" for being towed and promised "to pay for all damages which may occur".
Thereafter, a line approximately 28 feet in length and one-half inch in diameter, with a bowline knot at one end and a back splice at the other, was passed from the Fling to the Marine I.*fn2 The bowline knot was placed over the Samson post in the bow of the Fling, and the other end was secured by Santini to a towing bar in the stern of the Marine I. The Marine I then attempted unsuccessfully to free the Fling by pulling for 15 to 20 seconds forward and to port at approximately a 45 degree angle to the bow of the Fling.
A second attempt, from the stern, was also unsuccessful. Klarman testified that he placed the bowline knot on a cleat at the Fling's stern, and ran the line through a chock on the starboard side of the taffrail.*fn3 Klarman then handed the other end of the rope to the Marine I, and again it was secured by Santini to the towbar. The Marine I commenced towing at a 40 degree angle to the Fling's port stern. Klarman noticed that the chock had loosened due to the stress of the tow, and accordingly called a halt to the second attempt.
On the third attempt Klarman secured the bowline knot by doubling it on the port-side Merriman winch, located near the stern of the Fling at the after-end of the cockpit. Klarman testified that the winch was primarily used to sheet the Genova sail and for mooring, but that on one prior occasion, in the summer of 1962, it was used as the point of attachment during a towing operation when the Fling had run "aground in Watch Hill and [was] hauled off a ledge from the stern".
The other end of the line remained fastened to the Marine I, and towing was resumed in an almost broadside direction. During this operation the winch tore loose from its pedestal and struck Santini in the head, knocking him overboard. Santini was rescued and taken to Norwalk Hospital, where he died on August 1, 1964.
Proceedings in District Court
Klarman, owner of the Fling, filed a petition in admiralty seeking exoneration from or limitation of liability.*fn4 Rose Santini, as administratrix of her husband's estate, answered the petition and filed a claim against Klarman, contending that the death of her husband was due to Klarman's negligence and that he had the requisite privity and knowledge. The State of Connecticut also appeared as a claimant, seeking reimbursement for compensation benefits paid to the deceased's family under the Connecticut Workmen's Compensation Act.
Klarman was granted leave to implead the Town of Westport, owner of the Marine I, the other vessel involved in the accident, and Frederick Kellogg, Jr., commanding officer of the Marine I. Petition of Klarman, 270 F. Supp. 1001 (D. Conn. 1967). Klarman's third-party complaint alleged on behalf of Mrs. Santini (1) a claim against the Town of Westport under the Jones Act, 46 U.S.C. § 688 and the unseaworthiness of Marine I; and (2) a claim against Kellogg based upon his alleged negligence. On his own behalf Klarman claimed that he was entitled to indemnity or contribution for any damages which Mrs. Santini might recover against him.
At the trial Mrs. Santini moved to amend her answer to the limitation petition to assert a wrongful death action under Moragne v. States Marine Lines, 398 U.S. 375, 26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970),*fn5 and to amend Klarman's third-party complaint so that the claims stated on her behalf would be in her own name and right. The Town of Westport moved to amend its third-party answer to include a counterclaim against Klarman for indemnity. Both motions were granted at the close of the trial.
As the district court stated, under a "complex limitation proceeding admiralty", Mrs. Santini in effect was "suing Klarman, Westport and Kellogg as tortfeasors for the wrongful death of her husband", claiming he was killed as a result of their negligence "and/or the unseaworthiness of the Fling and/or Marine I". The principal areas of dispute in the non-jury trial concerned the propriety of the tow employed and the fitness and adequacy of the Merriam winch, its fastenings, and the towrope. On these issues the court heard testimony from Klarman, Kellogg and five experts -- three on behalf of Klarman (Blumenstock, Atkins and Raymond), one on behalf of Kellogg and the Town of Westport (Love) and one on behalf of Santini (Prosser). The testimony of these witnesses was conflicting.
Following the trial, the district court in a detailed and well considered opinion based on its ...