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March 11, 1957

Petition of TRANS-PACIFIC FISHING & PACKING CO., a corporation, for exoneration from and limitation of liability, THE MV WESTERN CLIPPER. M. Doremus, Administratrix of Estate of Phillip LaFata, et al., Claimants

The opinion of the court was delivered by: BOWEN

Statement of the Case

This action was submitted for the Court's decision upon the evidence adduced at the trial and upon the petition for limitation of liability on behalf of the vessel owner Trans-Pacific Fishing & Packing Co., a corporation, of Seattle, and also upon the claims and answers of three members and the administratrix of the estate of one deceased member of the crew of the tuna fishing vessel M. V. Western Clipper, respecting personal injuries and damages connected with two accidents, one on May 19, 1954 and the other on May 29, 1954, while the vessel was tuna fishing in Mexican and Central American ocean waters.

 As to the May 19th accident, while the vessel was tuna fishing off the coast of Nicaragua, the crew including Sam Sizgorich was bringing in a fish net after it had been set for and had made its normal fish catch, when a hook and shackle was let fall upon Sizgorich's shoulder because of the breaking and giving-away of the nylon sling necessarily attached to the net and used in bringing the net in. The use being made of the nylon sling when it broke was in harmony with the normal use ordinarily made of the nylon sling in customary fishing operations. The Court found unseaworthiness of the vessel and privity thereof of the owner-petitioner, denied limitation of liability, held the petitioner liable for negligent injury of crew man Sizgorich and awarded him $ 7,500 for his injuries.

  As to the May 29th accident, three of the crew members, Mrvica, Neri and LaFata, while carrying out orders connected with refastening down of the canvas hatch cover after it had been pulled loose from its nailed fastening to the wooden coaming of the fish hatch by rough water breaking over the deck, and just as they were leaving the afterdeck upon finishing the hatch cover refastening work, a heavy sea came over the deck sweeping Mrvica, Neri and LaFata overboard. The seas were rough, the vessel was undergoing considerable labor, some shorting out of electrical ignition and lighting circuits resulting in small but difficult-to-control fires were being experienced in the engine room due to water leaking through a broken port and also through the deck. The weather was very bad and the vessel's skipper did not, immediately after they were swept overboard or when the weather moderated about 6:30 to 7:00 o'clock A.M., some 2 1/2 hours after the men were swept overboard, nor at any other time, turn the vessel about or order it to do so to search for those men because he said it was dangerous, the vessel was hard to steer in the heavy seas, the weather was bad and the engineer advised against it. The skipper, however, did send out a 'May Day' call for assistance, without obtaining relief. All three of the men after being washed overboard remained for at least a few minutes in sight of each other. Thereafter they became separated. The tropical sea water in which they were had a temperature of about 80 degrees.

 Other testimony was to the effect that, if the canvas had been fastened properly with cleats, it would not have come loose and required the crew's exposure to waves washing over the deck. It was also testified the vessel could have safely turned about to search for and pick up Mrvica, Neri and LaFata from the sea.

 After being in the water about 14 hours, Mrvica was rescued by a passing steamship bound for Panama where he was hospitalized. He resumed his work in December 1954, again quit working in April 1955, and later worked for about a month on another fishing vessel. He had been under the care of a psychiatrist up to the time of the trial. He was 42 years of age at the time of the May 29th accident, and was earning about $ 6,000 to $ 8,000 per year as a fisherman. During the time he spent in the water, he experienced the nerve-racking ordeal of defending himself against numerous bites of small fishes and the savage threats of a large ocean going turtle which he finally overcame by thrusting his fingers in the turtle's eyes, -- and then 'she go away', as he piteously testified. As to his cause of action for personal injuries and damages, the Court found the vessel unseaworthy and the owner-petitioner in privity therewith, denied the petition for limitation of liability and awarded Mrvica $ 21,000 for such injuries and damages.

 At the time of the May 29th accident, Neri was a young Mexican, 22 years old. At the trial he spoke no English, but through an interpreter testified that he swam, drifted and treaded water for about 56 hours after he was swept overboard before he was rescued by two sports fishermen who immediately took him to Acapulco where he was hospitalized because of sunburn and numerous bites of small fishes which caused much of his skin to be lost and damaged. His vision was temporarily injured by the bright sunlight while he was in the water, and he sustained shock. After a few days in the Acapulco hospital, he was returned by the Western Clipper to his home at Ensenada, Mexico. Due largely to his youthful age and vigorous health at the time of and since the accident, he has fully recovered from his injuries, having worked for some time regularly in his employment of a deep-sea fisherman. As to Neri's claim for personal injuries, the Court found the vessel unseaworthy, and the owner-petitioner in privity therewith, denied the petition for limitation of liability and allowed Neri the sum of $ 6,500 for his personal injuries and damages.

 The foregoing is intended by the Court only as an outline statement of the facts.

 The Court: From a preponderance of the evidence in this case the Court finds, concludes and decides as follows:

 As to the amount of damages sustained by the various damage claimants and the decedent Phillip LaFata, whose claim is represented by M. Doremus, administratrix of the estate of Phillip LaFata, deceased, the Court finds to be expressed reasonably in the following respective amounts:

 The claimant Sizgorich sustained some personal injuries on account of the matters set out in his claim, but in the Court's opinion the extent of the damages is nothing like as great as he represented it to be. If taken in the most favorable light possible in his claim that there was some kind of a fracture in one of his shoulder bones, the medical testimony is not unanimous that surgery is necessary to correct any unfavorable condition existing in it, that there is no atrophy of muscles or tissues, he is in splendid general health and vigor after irregular work periods following his accident, and the Court finds his damages to date have been and are the total sum of $ 7,500 for all his general and special damages.

 The Court finds as to the claim on behalf of his mother for wrongful death of the decedent Phillip LaFata, that the mother at the time of his death had a valuable prospect of very substantial support money from decedent as indicated by his turning over to his mother of a large part of his earnings regularly up to the time of his death in response to a definite family need that he do so, and that the mother has been damaged by the wrongful death of the decedent LaFata in the sum of $ 15,000, claim for which is included in the Doremus claim's first cause of action; and that, as to the second cause of action in the same Doremus claim, that is, for the alleged personal injuries suffered and sustained by the decedent Phillip LaFata from the time he was washed overboard until he drowned, he sustained damages in the sum of $ 4,000.

 That the claimant who has filed a claim in this action who has in the Court's opinion suffered the greatest amount of personal injuries, as seems to me to be clearly and convincingly established by a preponderance of the evidence, is the claimant Mrvica. The Court cannot say and is not required to say why the results of his injuries, exposure and terror, and his fear and concern for his own safety, injured and damaged him so much more than a similar experience over a much longer period of time injured and damaged the claimant Neri who did not suffer anything like as large an amount of damages as were sustained by Mrvica. One thing I believe which figured in the difference in the seriousness of the results to those two men is the fact that when the injuries were occurring to them during the times these men were in the water between the time they were washed overboard and the times they were rescued is that Mrvica was forty-two years old and Neri was then a very much younger man, only about twenty-two years old, not much more than half the age of the claimant Mrvica, that is, when Neri was being exposed for fifty-six hours in the water to the personal injuries sustained by him while he was in the water from exposure to sun and wind and water and exhaustion from remaining in the water and exerting the effort which was involved in staying afloat all of those hours, and from the injuries he received from the schools of fish that nibbled and bit his body. However that may be and for possible many reasons we shall never know, this young man Neri shows no signs of any injuries whatsoever at this time, and according to his work history since he returned to work following this ordeal of fifty-six ...

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