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DUNN v. SOUTHERN CHARTERS

May 27, 1982

Martin DUNN, John Lynch, Robert Moll, Lyvia Y. Moll, Emanuel Lorras, and Irene McDermott, Individually and as Administratrix of the Estate of John J. McDermott, Deceased, Plaintiffs,
v.
SOUTHERN CHARTERS, INC., Norman Stern, Fairwind Yacht, Inc., William Farr, Marine Trading International, a division of Miller Yacht Sales, Inc., North Fork Shipyards, Inc., Defendants



The opinion of the court was delivered by: NEAHER

MEMORANDUM OF DECISION AND ORDER

These consolidated actions for injuries and a wrongful death arise from the accidental burning of a chartered yacht, the "Second Wind," while anchored off the coast of Rhode Island. Jurisdiction is grounded upon 28 U.S.C. § 1333, and the issue of liability was tried by the court without a jury. The facts and legal discussion below constitute the court's findings and conclusions, Rule 52(a), F.R.Civ.P.

 EVIDENCE AT TRIAL

 The Second Wind, a traditional design 37 foot ketch clipper, was built on behalf of Miller Yacht Sales, Inc. (Miller) in Taiwan. Miller sold the boat new to North Fork Shipyard, Inc. (North Fork), located in New Suffolk, Long Island, shipping separately an alcohol stove purchased from Seaward Products, Inc. *fn1" Subsequently, a carpenter employed by North Fork installed the stove in the main cabin of the Second Wind, mounting the range upon gimbals, a contrivance which suspends the stove and permits it to remain plumb despite rocking motions of the boat. A mechanic in North Fork's employ then connected the flexible hose supplied with the stove for conducting pressurized alcohol to the burners and tested the operation of the stove. Tr. at 1409.

 North Fork fully commissioned the yacht and resold it in August 1976 to Southern Charters, Inc. (Southern), a Delaware corporation formed for the purpose of purchasing the vessel and chartering it to private individuals. The president of Southern, Norman Stern, arranged orally and by letter with Wornall Farr, the president of Fairwind Yacht, Inc. (Fairwind), for the latter to manage the chartering of the Second Wind in exchange for a commission of 35% of the chartering fee. Based in Greenport, Long Island, Fairwind agreed to maintain the boat and all equipment, assure the competency of each charterer, deliver the yacht to each charterer in clean ready-to-sail condition, arrange for advertising and charter payments, conduct inspections before and after each charter, and perform minor repairs. Southern remained responsible for major repairs, insurance, winter storage and fundamental maintenance costs. Tr. at 1076; Pl. Exh. 11.

 Stern sailed the Second Wind once in November 1976 and several times in May 1977. Tr. at 1071, 1178. He encountered no problems in operating the stove or the forward hatch. *fn2" At the end of May 1977, Fairwind chartered the yacht for the first time, receiving no complaints from the chartering party. Tr. at 1076. In accordance with prior arrangements, the Second Wind was then chartered through Fairwind by John McDermott, deceased, for the fateful voyage commencing June 9, 1977.

 McDermott chartered the Second Wind for the purpose of taking a four day pleasure cruise to Cape Cod with four other men, Martin Dunn, John Lynch, Robert Moll and Emanuel Lorras. The latter four did not participate in the charter agreement, although the expenses were shared equally among the entire group. The charter instrument was not offered at trial, but it appears that no master or crew was supplied with the yacht; McDermott was given possession and control of the vessel for the four day rental period. Def. Exh. J; Tr. at 1079-80.

 Of the five men, Moll and Lorras were not experienced sailors. McDermott, 40 years old at the time of death, had served in the Navy for four and a half years, had owned a 27 foot tartan as well as a small motor boat, had taught sailing for several years, and had remained generally active in sailing from the age of seventeen. Tr. at 54-56. Dunn, then a lieutenant in the New York City Police Department, had owned a 22 foot sailboat for three years which was equipped with an alcohol stove. Tr. at 581-82. As a police officer and in the Army he had on various occasions used fire extinguishers similar to the ones supplied on board the Second Wind. Tr. at 570. *fn3" Finally, Lynch had sailed on approximately 15 to 20 chartered yachts prior to the Second Wind. Tr. at 81.

 The McDermott party boarded the Second Wind late at night on June 8, 1977. Dunn inspected the safety equipment on board and requested from Farr a fifth life preserver, flares, and current navigational charts, all of which Farr provided. Tr. at 576-78. Farr instructed McDermott on the operation of the stove and pointed out the written instructions appearing on the bulkhead above the stove. Tr. at 693. *fn4" Prior to departure on the morning of June 9, Dunn attempted to open the forward hatch from inside the berthing compartment but was unable to do so. Tr. at 598. He did not pursue the endeavor, nor did he inform anyone on board of the apparently inoperative condition of the hatch. Tr. at 651-52. Also prior to departure, Dunn ignited one of the burners on the stove and made coffee without incident. Tr. at 581, 599.

 After motoring out from the north shore of Long Island, the Second Wind encountered inclement weather in Block Island Sound. Tr. at 606. Because of the weather, the party headed for the Point Judith Harbor of Refuge on the coast of Rhode Island rather than toward Cape Cod. The weather worsened, and three to four foot waves began violently rocking the boat. Tr. at 92; Pl. Exh. 8, at 3. At approximately 8:00 P.M. on June 9, they arrived at the Harbor of Refuge and anchored the boat in relatively calm water. Lynch, Lorras and Moll participated in an anchor watch through the night while McDermott and Dunn slept. Tr. at 415, 611.

 At 6:00 A.M. on June 10, Dunn awoke and lit the stove in preparation for cooking breakfast. He turned on the valve for the right front burner, let a little alcohol run into the priming cup, shut the valve off and repeated the same procedure with the back burner. Tr. at 612. He then struck a match and lit the alcohol in both cups, after which he turned to the adjacent ice box to obtain the breakfast food items. He observed a small flame emanating from a fraction of an inch of alcohol in the splash pan below the burners but was not concerned because he had experienced such a flame previously. Tr. at 614, 641. After continuing his endeavors in the ice box for one to five minutes, Dunn saw a flame shoot out from behind the stove. Tr. at 614, 636-38. Suddenly, he heard a "woosh" sound as the flames shot swiftly over his head and along the ceiling to the other side of the boat. Tr. at 615. He shouted "Fire" and ran for a fire extinguisher. After pulling the pin, Dunn squeezed the handles together, but the extinguisher did not work and he threw it to the floor. Tr. at 573, 653-54. Dunn never testified that he had first lifted the handle before squeezing the lever as required by the instructions on the extinguisher. Within seconds of the initial combustion, the fire encircled the entire circumference of the boat where Dunn was standing. Tr. at 616. He did not see the ceiling actually burning, nor did he observe any smoke until he, Lorras and Moll had reached the cockpit via the aft companionway. Tr. at 620-21.

 Meanwhile, McDermott and Lynch initially sought the second fire extinguisher, but encountered too great a conflagration and proceeded to the forward hatch to escape. Tr. at 107. McDermott pushed up on the hatch but was unable to open it, whereupon Lynch turned and saw the main cabin completely enveloped in black smoke and flame. Id. Touching McDermott, Lynch told him to run. Lynch then ran through the fire and climbed up the companionway into the cockpit, but McDermott did not follow. Lorras and Dunn tried unsuccessfully to open the forward hatch with a winch handle. After a few minutes they succeeded in breaking a small hole in the cover, but when black smoke poured out they concluded that McDermott had died below. Tr. at 500, 623. After a short time the four men abandoned the burning vessel and were rescued from the water by the Coast Guard.

 Coast Guard personnel boarded the Second Wind to fight the fire and initially encountered difficulty in removing the hinge pins from the forward hatch. Pl. Exh. 8, at 5. Subsequent inspection of the interior of the boat revealed that the flexible hose which supplied alcohol from the tank to the stove had burned through. Id. at 6.

 Plaintiffs produced four expert witnesses at trial. Daniel O'Connor is a civil and mechanical engineer, having spent three years in post-graduate work at the School of Engineering, Columbia University. He has had varied experience in the field of thermodynamics, including teaching, laboratory testing and investigation. Martin Perl is employed by Consolidated Edison, performing failure and accident analyses and establishing safety procedures. He has a doctorate degree in mechanical engineering and is a member of the American Boat & Yacht Council (ABYC). Walter MacLean, acting director of the developmental laboratory of the National Maritime Research Center, has a doctorate degree in naval architecture and is a graduate of the United States Merchant Marine Academy. Carl Abraham is a professional safety engineer associated with a testing and consulting firm. He has a doctorate degree in chemistry. The substance of each expert's testimony follows.

 Daniel O'Connell

 As a result of the fitting used, a large quantity of alcohol vapor leaked from the manifold connection at the rear of the HilleRange. Unknowingly, Dunn was standing knee-deep in alcohol vapor when he lit the stove. Such a quantity of vapor would not have been noticeable because it was odorless. Since alcohol vapor weighs more than air, it remained behind the stove and along the floor of the cabin until air ...


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