Kell v. Zermatten

101 F. Supp. 898, 1952 U.S. Dist. LEXIS 2006
CourtDistrict Court, S.D. California
DecidedJanuary 24, 1952
DocketNo. 12344
StatusPublished

This text of 101 F. Supp. 898 (Kell v. Zermatten) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kell v. Zermatten, 101 F. Supp. 898, 1952 U.S. Dist. LEXIS 2006 (S.D. Cal. 1952).

Opinion

YANKWICH, Chief Judge.

Evidence oral and documentary was introduced; the cause was 'argued orally and submitted, whereupon the Court rendered its decision from the bench.

Thereafter formal Findings of Fact and Conclusions of Law were waived by stipulation of counsel in open court; however inasmuch as the libelant has subsequently indicated his desire to prosecute an appeal in this cause, and Findings of Fact and ’Conclusions of .Law are desired by the parties, and the Court being fully advised in the premises, it now makes its

Findings of Fact

as follows:

I

At the times mentioned in the Libel, the libelant George Kell was an American citizen, residing in the City of Long Beach, State of California, and was the owner of the fishing vessel “Newcomer”, a vessel of the United States of America, 52 feet in length and of 59 gross and 55 net tons, and of a reasonable market value in sound condition of not less than $49,000.

II

At the times material hereto, the respondent ’and cross-libelant, Earl C. Axtell, Jr., was master of the American fishing vessel “Jesse A”, which vessel was an oil screw fishing vessel approximately 38 feet in length and of the reasonable value of $16,500, or thereabouts. Said vessel was owned by Earl C. Axtell. The respondent and cross-libelant Earl !C. Axtell, Jr. was sued in the Libel under the fictitious name of John Doe and thereafter appeared on behalf of himself and on behalf of the owner thereof, the said Earl C. Axtell, and of Martin Axtell, crew member of said vessel.

III

At the times material hereto, the respondent and cross-libelant Laur Koozmin was the owner of the American fishing vessel “Paloma”, a gas screw fishing vessel, approximately 38 feet in length and of the reasonable market value of $15,000, or thereabouts. Laur Koozmin did not appear personally at the trial of this, cause, but was represented by his attorney in fact, George Rogwald, formerly known as George Ikonokoff, who was one of the members of the crew of the vessel “Paloma” at the times material hereto. The Cross-Libel of Laur Koozmin was maintained for the benefit of himself as owner of said vessel, and for the benefit of the crew members of said vessel “Paloma”, namely the said George Rogwald, William Ushin and Fred Burnett.

IV

On March 16, 1950, the vessel “Newcomer” was en route from Cape San Lucas, Baja, California, to San Pedro, 'California, with a partial cargo of between 20 and 25 tons of frozen yellowfin tuna on board. The going price and the market value of yellowfin tuna delivered in sound condition at San Diego, California, or San Pedro, California, was the sum of $310 per ton. The “Newcomer” put in to a small fishing port or town at Cedros Island off the coast of Baja, California, known as The Village, approximately 330 miles South East of San Diego, California, for the purpose of delivering a passenger.

On March 16, 1950, at about 12:30 p. m., at which time the “Newcomer” was approximately four miles from The Village, Cedros Island, and under way, fire broke out in the engine room of the vessel. The engine room of the vessel quickly filled with flames and smoke. There was no adequate means on board the vessel to extinguish the fire. The vessel was equipped with a C02 fire fighting system. This system was inoperable as the vessel had experienced another fire earlier on the same fishing voyage, and the C02 gas sup[900]*900ply had been ■ exhausted in extinguishing the former fire.

The libelant George Kell, master of the “Newcomer”, made some effort to extinguish the blaze with hand fire extinguishers, but because of the intensity of the flames, heat and smolce, he could not approach near enough to the fire to effectively engage or subdue it.

There was grave danger of explosion because of the proximity of the vessel’s ammonia receiver to the location of the fire, which reasonably caused the master to believe that it was unsafe to remain on board the vessel.

The libelant accordingly gave orders to abandon the vessel, and the crew of the “Newcomer”, consisting of five men in addition to the libelant, did immediately enter the vessel’s skiff and abandon the "Newcomer”.

The libelant Captain Kell was unable to request assistance by radio for the reason that the vessel’s radio was found to be inoperable after the fire was discovered. At the time Captain Kell and his crew abandoned the “Newcomer”, Captain Kell believed, and rasonably so, that there was no opportunity of saving the vessel, and that the vessel, together with its cargo, would shortly become an absolute total loss,

The “Newcomer” fire was observed by the personnel on board the vessels “Paloma” and “Jesse A”, which were then lying at anchor at The Village, Cedros Island, and said two vessels, together with a third small fishing vessel known as the “Lyl Evelyn”, immediately proceeded to the assistance of the “Newcomer”, and arrived at the “Newcomer” in approximately half an hour, or at approximately 1:00 o’clock p. m., March 16, 1950.

On arriving at the location of the “Newcomer”, the crew of the “Newcomer” was found to be safe and the “Newcomer” was observed to be heavily involved with fire, particularly from approximately midships forward, the cabin and superstructure was a mass of flames, with a resulting area of intense heat in and about the vessel.

Captain Kell first boarded the small fishing vessel “Lyl Evelyn” and then proceeded from the “Lyl Evelyn” to the vessel “Jesse A”, went aboard the “Jesse A”, and there had a discussion with Earl C. Axtell, Jr., and Martin Axtell with reference to the fire on the “Newcomer”..

Captain Kell advised the Axtells that he considered that the “Newcomer” was an absolute total loss and that by reason of the general conditions which obviously existed on the “Newcomer”, together with imminent danger of violent explosions on said vessel, it was unsafe for anyone to attempt to board the “Newcomer” in an attempt to fight the fire or to save the vessel.

Captain Kell further stated to the Ax-tells that there was a cargo of fish on the “Newcomer” and that if the vessels “Jesse A” and “Paloma” should be successful in saving any of the fish, that they had his permission to do so for their own account, as he had abandoned the fish. Captain • Kell’s statements were understood by the Axtells to mean that any fish which they might be able to save would be the sole and absolute property of the persons saving the fish.

Thereafter the vessel “Jesse A” maneuvered close to the burning “Newcomer”, and Martin Axtell went aboard the “Newcomer” with a line from the “Jesse A”. The “Jesse A” proceeded to tow the “Newcomer” toward shallow water near the beach of Cedros Island.

Martin Axtell remained on board the “Newcomer” and proceeded to fight the fire on the “Newcomer” with a hand bucket, and in this activity Martin Axtell was joined and assisted by an unidentified member of the crew of the vessel “Lyl Evelyn”.

The “Jesse A” succeeded in towing the “Newcomer” into shallow water and then rigged a fire hose and proceeded to play a stream of water upon the fire in the “Newcomer”, which fire continued to burn with considerable intensity.

The vessel “Paloma” ■ then approached the “Newcomer”, and members of the “Paloma” crew, namely William Ushin and Fred Burnett, boarded the “Newcomer” and assisted in fire fighting operations.

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101 F. Supp. 898, 1952 U.S. Dist. LEXIS 2006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kell-v-zermatten-casd-1952.