The opinion of the court was delivered by: BOLDT
In September, 1965 plaintiffs, with a group of home-town friends interested in sport fishing and hunting, went on a fishing trip to Westport, Washington. The adjacent Pacific Ocean coastal waters are widely known for their runs of King and other species of salmon. Through defendants Rockey, who do business as "Rockey Charters," plaintiffs' group engaged defendants West and their fishing boat the LEE to take them fishing in the Westport area.
Sneaker waves are caused by current movements pushing surface waters in a peculiar manner leaving the back of the wave vertical. They suddenly arise without any known or observable pre-existing conditions and dissipate rapidly. They are observed infrequently - two or three times a season - and rarely strike a boat. A vessel meeting and passing over or through such a wave will drop after passing the crest. The effect upon persons in the boat is as though the deck had dropped from beneath their feet.
Just prior to the incident in question the skipper of the LEE saw a sneaker wave approaching the bow of the vessel a short distance away. He immediately shouted a warning, "Hang on." This warning was heard by the witness Peters, a friend and fishing companion of plaintiffs. He looked up, saw the wave approaching and relayed the warning to other passengers in the boat. Other than plaintiffs, no passenger was injured, although every one of them experienced substantially the same shock from the drop of the boat after passing the crest of the sneaker wave.
Since the final argument of counsel was presented about three weeks ago, the court has extensively reviewed significant phases of the testimony, the transcript of the argument, the briefs of counsel and the authorities cited therein.
In the final pretrial order entered in the case, plaintiffs contend defendants were negligent in the navigation and operation of the LEE in two particulars: in failing to adjust the speed and direction of the vessel to meet prevailing and reasonably foreseeable conditions of the sea; and in failing to anticipate and adjust speed and direction to meet the particular wave encountered by the LEE at the time of the incident in question. Plaintiffs also contend defendants were negligent in causing or permitting plaintiffs to be in positions on the vessel where they were at the time of the incident in question; in failing to cause plaintiffs to go within the vessel or to the stern; and in failing to warn plaintiffs of the risks of injury.
Defendants deny fault or negligence on their part in any particular proximately causing or contributing to plaintiffs' injuries, allege contributory negligence on the part of plaintiffs and claim limitation of liability pursuant to 46 U.S.C.A. § 183 et seq.
As was affirmed by all counsel during argument, no party contends negligence or contributory negligence has been either established or negatived as a matter of law. Thus, counsel have agreed and the court considers all issues as to negligence and contributory negligence ultimately fact questions both as to the particular circumstances which have been shown by the evidence and the reasonable inferences to be drawn therefrom.
The applicable standard of care chargeable to operators of vessels carrying passengers for hire is stated in Moore v. American Scantic Line, 121 F.2d 767 (2nd Cir. 1941) at page 768:
"* * * A passenger is entitled to have a carrier exercise for his safety as much skill, care, and prudence as an exceedingly competent and cautious man would bring to the task in like circumstances and is liable for injuries to passengers due solely from a failure to do that."
After full and careful consideration, the finding of the court as to each fact issue necessary for decision will now be stated. Extended or detailed dissertation does not appear necessary or desirable and for the most part the court's final and ultimate determination of the controlling facts will be presented.
The court finds and holds there was no joint venture or other form of agency relationship between defendants Rockey and defendants West requiring or authorizing the imputation to defendants Rockey of the alleged negligence of defendants West. Defendants Rockey were engaged in the business of arranging fishing boat charters with the owners of such boats for fishermen contacting Rockey Charters for that purpose. Defendants Rockey had granted and vested in defendants West, without reservation or qualification as to the use, management or control of the boat, the beneficial ownership, possession and use of the LEE, and this status was in effect at all times pertinent to the present case. This finding precludes statutory limitation of liability as to defendants Rockey.