Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW MILES, Senior District Judge. The instant case is a wrongful death action, originally brought by the surviving families and representatives of four decedents against the manufacturer of a boat. Plaintiffs have claimed that, due to defects in the boat caused by defendant’s negligence, the four decedents lost their lives while driving the boat across Lake Michigan. Defendants, in turn, have filed a third-party complaint in admiralty, under Fed.R.Civ.P. 14(c), against two marinas that assertedly were the employers of the decedents, and against the owner of the boat. Jurisdiction over the complaint was asserted on the basis of diversity of citizenship, as well as on the basis of admiralty. An explanation of the various claims and contentions of the many parties requires a brief summary of the underlying facts. Plaintiffs claim that on September 25,1980, their decedents took off from Montrose Harbor in Chicago on a Trojan F-32 cabin cruiser manufactured by defendants. Decedents allegedly were bound for Holland, Michigan. Plaintiffs claim that the Trojan F-32, which had been given the name “Sea Mar III” by its owner, was at the relevant time the subject of a product recall issued by the manufacturer. They assert that the product was in fact defective, in that the air vents on either side of the stern were constructed in such a way that water could enter the boat and accumulate in the aft bilge. Plaintiffs have asserted that the Sea Mar III (hereinafter simply referred to as the “Sea Mar”), which never reached Holland and has never been found, sank as a result of water accumulation through these vents. They also claim that the four decedents, who have never been seen or heard from by plaintiffs since September 25, 1980, and whose bodies have never been found, were killed due to the sinking. The complaint alleges counts based upon negligence; gross negligence (reckless, wilful, and wanton conduct); implied warranty; express warranty; and strict liability. Defendants filed an answer to the complaint, admitting that they had manufactured the boat in question but denying other material aspects of the claim. In addition, they filed a third-party complaint in admiralty, under Fed.R.Civ.P. 14(c), against three new parties. The defendants claim that at the time of the alleged accident involving decedents, third-party defendants Bay Haven Marina, Ottawa Beach Marina, and Claude C. Boles were decedents’ employers. They claim that Boles was the owner of the Sea Mar at the relevant time. Whittaker claims that third-party defendants are liable to the third-party plaintiffs for contribution as joint tortfeasors; they also have claimed, under the rule allowing impleader in admiralty, that the marinas and Boles are liable to the principal plaintiffs in the action on theories of negligence and strict liability. The claims against third-party defendants are premised upon allegations that Boles as owner was negligent and also that he owed decedents an absolute duty to provide a seaworthy vessel, and that the marinas are liable for negligence in that decedents were acting within the course of their employment. Defendant Whittaker also filed a counterclaim against decedent Anderson’s estate, claiming that as “captain” of the Sea Mar crew Anderson was individually negligent in several respects, and that for this reason Anderson is liable as a joint tortfeasor with respect to the claims of the other plaintiffs. The complaint as originally pleaded contained a demand for a jury. Principal defendants filed a motion to strike the jury demand, stating that insofar as plaintiffs had pleaded their case in admiralty as well as at law, the presence of admiralty jurisdiction precluded any right to a jury. Before this motion was ruled upon, however, plaintiffs and all other parties stipulated to a waiver of the jury demand. The case therefore proceeded to trial before the Court. Defendants in the case, through their answers to the complaint and subsequent responses during discovery, have narrowed the case down to a few basic issues. Defendant Whittaker in fact conceded that it had conducted a “recall” or “retrofit” campaign on 1974-model Trojan F-32s, in the course of which the manufacturer sent out letters stating that the boat’s air vents, as designed, allowed water to enter and to accumulate in the stern of the boat. Defendants have maintained, however, that the defect did not cause the disappearance of the boat and alleged death of the crew, and they further have claimed that plaintiffs cannot show otherwise. Whittaker also has raised issues intended to shift liability, if any is found, to the third-party defendants. It has claimed that if the Sea Mar was “unseaworthy,” as plaintiffs have maintained, it is only because third-party defendant Boles removed a stern bilge pump that a former owner of the boat had installed. Whittaker claims that Boles, as owner of the boat at the time of the incident involving decedents, is strictly liable for the boat’s unseaworthiness. Further, the manufacturer has asserted that each of the three third-party defendants is liable as the employer of the decedents; it also claims that Bay Haven Marina is liable because of the fact that it should have had knowledge that the Sea Mar was under a recall at the time of the incident. The case was tried to the bench over approximately three and a half weeks. During that time the Court heard extensive testimony, both live and through depositions; reviewed numerous exhibits in the form of letters, charts, photographs, and actual debris from the Sea Mar; and took a “view” of a Trojan F-32 cabin cruiser docked in Holland, Michigan. Upon careful review of all of the evidence presented, the Court is compelled to find that plaintiffs have shown that it is more likely than not that the Sea Mar, during the time that decedents were aboard, took on water because of the alleged defect and that the water proximately caused decedents’ deaths. The Court’s findings of fact and conclusions of law, entered pursuant to Fed.R.Civ.P. 52(a), are set out in the following paragraphs. Findings of Fact A. Jurisdiction 1. Plaintiffs Anderson & Brower, personal representatives of the estates of two of the alleged decedents, are citizens of the state of Michigan; plaintiff Miller is a citizen of the state of Indiana; plaintiff Willsey is a citizen of the state of Ohio. 2. Defendants Whittaker Corporation and Trojan Yachts Company are California corporations with their principal places of business in California and Pennsylvania, respectively. Defendant Trojan Yacht Corporation was, before its dissolution, a Pennsylvania corporation with its principal place of business in Pennsylvania. 3. Third-party defendant Claude C. Boles is a citizen of the state of Illinois. Third-party defendants Bay Haven Marina and Ottawa Beach Marina are Michigan corporations with their principal places of business in Michigan. B. Circumstances of the Sea Mar’s Departure 4. On September 25, 1980, the four decedents, Curt Anderson, Michael Stevenson, Steven Brower, and Harvie Willsey, attended the IMETC marine trade show at McCormick Place in Chicago. Decedent Curt Anderson was employed at the time as the manager of Ottawa Beach Marina, in Holland, Michigan, a job he had held since 1975. Anderson also worked as a salesman for Bay Haven Marina, also located near Holland. Decedent Steven Brower also was a salesman for Bay Haven. Decedent Michael Stevenson was an employee of Bay Haven; he worked in the marina store. (M. McMahon deposition at 11-12.) Decedent Harvie Willsey was not employed by either marina, but he was a friend of the other three and had extensive boating experience. The IMETC marine trade show is an annual event, attended as a matter of course by members of the boating industry. The three decedents who were employed by the marina had gone to the show in furtherance of their businesses, which involved the sales of boats and boating products. 5. Prior to that date, decedent Anderson had arranged to handle the sale of a Trojan F-32 cabin cruiser, 1974 model, for defendant Claude Boles. This boat had been named the Sea Mar III. Boles was the fourth owner of the Sea Mar. He was at the same time engaged in the purchase of a 42-foot Grand Banks; Anderson was handling this sale as well. Anderson was known to Boles as a salesman for Bay Haven Marina in Holland, Michigan. (Boles deposition at 139-40.) Boles had no knowledge at that time that Anderson also was employed at Ottawa Beach Marina, nor did he believe that Ottawa Beach was in any way involved in his transactions. (Id. at 138-39.) As part of the arrangements involving the sales of the two boats, Boles was to relinquish possession of the Sea Mar so that it could be sold by Bay Haven at its Michigan marina. (Boles deposition at 14.) Bay Haven, through Anderson, had agreed to forward the purchase price, less its commission, to Boles after a sale had been made. (Id. at 12-13.) In the course of final discussion over the telephone concerning the proposed transactions, Anderson offered to transport the Sea Mar from Chicago to Holland on the day that he had planned to be in Chicago for the marine trade show. This offer was not solicited by Boles, who had planned to take the boat across to Holland himself, and who in fact already had had maintenance work done on the boat in anticipation of making the crossing. (Id. at 109.) This conversation took place five days before the date of the show, or on Saturday, September 20. It was agreed that on the following Thursday, September 25, Anderson would meet Boles at Montrose Harbor in Chicago, when Anderson would take possession of the boat in order to transport it to Bay Haven Marina and hold it for ultimate sale. (Boles deposition at 22.) On September 24, decedent Anderson discussed with decedents Brower and Stevenson plans for bringing the boat back over Lake Michigan on the following day. Originally, decedents had considered bringing Anderson’s and Brower’s wives along for the cruise across the lake. It was ultimately decided that the three decedents, along with their friend Harvie Willsey, would travel to Chicago by car on September 25 and return on the Sea Mar, across the lake, that same evening. 6. On the day of the boat show, decedents were seen at McCormick Place by Michael McMahon and his wife, Sue McMahon. The McMahons also were in the business of dealing in marine merchandise, and they were acquainted with decedents Anderson, Brower and Stevenson through dealings with Bay Haven. (M. McMahon deposition at 12-13.) The McMahons saw the decedents twice during the day; first, in the middle of the day while the McMahons were eating lunch; and second, between 3:30 p.m. and 4:30 p.m. (EDT). (Id. at 7-8.) Decedents discussed with the McMahons their plans to transport the Sea Mar across the lake later that afternoon and were observed to carry duffel bags and jackets. Mike McMahon discussed with Steven Brower the fact that the sky looked overcast, but that there was not a great deal of wind. (Id. at 8.) The McMahons received the impression from decedents that the boat trip was regarded as a “novel way of coming home,” and a combination of business and pleasure. (Id. at 17.) The decedents were not observed to consume any alcoholic beverages. (S. McMahon deposition at 7.) 7. The decedents received a ride from McCormick Place to Montrose Harbor from Yaile Scott. Scott had made arrangements to meet Anderson at McCormick Place that afternoon, in order to exchange some papers in connection with the purchase of a sailboat. (Scott deposition at 6.) During the drive to Montrose Harbor, Scott discussed with the four men their route back to Michigan; decedents indicated that they were going “straight across,” and that they expected to reach Holland by 10:00 p.m. (EDT) that evening. (Id. at 10.) Scott noticed many thunderclouds in the sky at that time, but did not recall any discussion about them other than perhaps a brief comment. (Id.) Scott also noted that the decedents carried light bags and foul weather gear, and he stated that the men did not appear to be in any way intoxicated or “high.” (Id. at 15, 17.) 8. At Montrose Harbor, decedents were met by Claude Boles. Boles was introduced to the three men with Anderson, and he spent approximately 30 minutes with them going over the features of the boat. (Boles deposition at 39.) One of the decedents looked in the engine compartment. Boles handed over the keys and pointed out such things as the location of the radio and the life preservers. (Id. at 42.) Boles informed decedents that, based upon his calculations, there was slightly over half of capacity, or 160 gallons of fuel in the tanks. Boles watched the four decedents leave the dock at Montrose Harbor at approximately 4:00 p.m. (Chicago time). The Sea Mar proceeded out of the harbor, with Anderson at the helm, in what Boles described as an “easterly” direction, which looked to Boles as though decedents were heading straight across the lake to the Michigan shore, rather than directly towards Holland. (Id. at 47.) The boat was being driven on plane, at a speed of 22-25 m.p.h. Boles watched the boat for about ten minutes; after that, he never saw the boat or any of its crew again. (Id. at 48-49.) 9. The weather over Lake Michigan earlier that day had consisted of calm conditions, interrupted by several late summer “squalls.” David Haase, who sailed from Holland to Chicago during the day on September 25, noted that he passed through at least two sudden storms, marked by rain, heavy winds and hail. (Haase deposition at 27-28.) At one point during his trip, Haase noted waves that were eight to ten feet in height. (Id. at 27.) When Haase sailed into Chicago, at between 5 and 6 p.m. (EDT), conditions were calm and there were no small craft warnings posted. (Id. at 53-54.) Observers from the shore in Chicago noted that the sky late that afternoon was overcast, with scattered clouds. (Scott deposition at 18; M. McMahon deposition at 18; S. McMahon deposition at 9.) Boles remembered that, looking out from the harbor at the approximate time of decedents’ departure, he noted that the sky contained “tall thunderheads.” There had been a few drops of rain, and Boles’ wife had driven through a small hail storm on her way to Montrose Harbor shortly before 4:00 p.m. (Chicago time). (Boles deposition at 49.) Boles opined that the conditions looked as though storms were brewing, and he stated that, being a cautious boater, he would not have started across the lake at that time. (Id. at 49-50.) Decedents were not overly concerned about the weather conditions. (Scott deposition at 10; M. McMahon deposition at 18.) There is no indication that before their departure they made specific inquiry into the weather forecast for lower Lake Michigan for the evening. Two of the decedents made calls to their spouses in Holland prior to departure from Chicago; Jacqueline Anderson Goodson stated that she received a call from her husband at approximately 5:00 p.m. (EDT). Anderson apparently asked about the lake conditions on the eastern side of the lake, and was told that Lake Macatawa, which empties into Lake Michigan north of Holland, looked “glassy.” Steven Brower spoke to his wife, Martha Brower Walker, at about the same time. Brower informed his wife that the decedents planned to go straight across the lake, but that they would follow the shoreline if the weather became rough. 10.Decedent Anderson was described by all witnesses who testified on the subject as an experienced boater. He had attended the maritime academy for one year, and had been a member of a coast guard for four years, where he attained the rank of bosun mate. He was a member of the coast guard reserve after his active service. He had been stationed at the Holland search and rescue station and had piloted many search and rescue calls. As part of his employment with the two marinas, he had extensive experience operating many different types of pleasure craft. His widow described him as a “dependable” boater, and stated that although he was not a mechanic, he was able to handle small engineering problems that arose on the boats. The other decedents also had boating experience. Decedent Brower also was a salesman at Bay Haven, and as part of this job he spent considerable time demonstrating different types of boats. (M. McMahon deposition at 15.) He was observed on many occasions handling either power boats or sailboats. (Id.) Decedent Stevenson, who worked in the marina store at Bay Haven, dealt in power boat equipment such as pumps, motor parts and engines. He was seen by the McMahons driving a boat on the lake on occasion. (Id.) Finally, decedent Willsey, although he had no employment relationship with either of the two marinas, was known by Jacqueline Anderson Goodson to have had extensive boating experience. He held a pilot’s license, and had been observed by Goodson on one occasion reconstructing a broken-down car engine. She remarked that Willsey had gone boating with her husband many times, that he was “always” in the bilge of his boat, and that he was very “particular” about his boat. 11. During the evening on Thursday, September 25,1980, the wives of two of the decedents, Jacqueline (Anderson) Goodson and Martha (Brower) Walker, had dinner with another friend at a restaurant overlooking Lake Michigan near Holland. By the time dinner was over, the three noticed that conditions over the lake were much more windy and turbulent than they had been before. The water looked sufficiently rough to the women that Martha Brower went down to the lake and tried to raise the Sea Mar by means of a marine radio on a boat moored at the dock. However, she was unable to find an operable radio. 12. The Sea Mar did not reach Holland at the expected time, which was around 10:00 p.m. on the evening of September 25. The decedents and the boat still had not appeared by 7:00 a.m. the next morning, and the wives of two of the decedents contacted the local coast guard station. The coast guard commenced a search for the Sea Mar and its crew at about 11:00 a.m. on that day, which was Friday, September 26. By the following Sunday, September 28, the coast guard began to find various items of debris that were later identified by Claude Boles as parts and equipment from the Sea Mar. 13. Between September 28 and early October of 1980, items of debris were found at locations between South Haven and Saugatuck, Michigan. The items were: several orange-colored personal flotation devices (PFD’s); one seat cushion that came from the dinette area, which was in the lower cabin of the boat next to the galley; two bench cushions from the fly bridge, one with vinyl covering intact and the other with no cover; a section of vinyl-covered plywood from an inside panel of the fly bridge; a marine signal kit, which had been kept on the fly bridge of the boat, containing a flare gun and several apparently unused flares; two large hatch covers from the floor of the main cabin, one with an unexploded halogen fire extinguisher attached to the underside; one small hatch cover from the center of the main cabin floor; and a ring buoy inscribed with the words “Sea Mar III.” All items except for the ring buoy had been found afloat on the lake, a short distance from shore. All were identified by Claude Boles as items that were known to him to have been aboard the Sea Mar when it departed Chicago and was last seen by him on September 25; most of the items bore some distinctive features that enabled Boles positively to state that they were from his boat. None of the items of debris showed signs of fire or explosion. 14. A memorial service for the four decedents was held at Dimnent Chapel, Hope College in Holland on October 11, 1980. Certificates of presumptive death were issued for Anderson, Brower and Stevenson by the state of Michigan on December 22, 1980. (Plaintiffs’ exs. 18-20.) A judgment of presumptive death was entered by a probate court in Ohio as to decedent Willsey on January 12, 1981. (Plaintiffs’ ex. 21.) 15. The hull of the Sea Mar has never been found, nor have the bodies of any of the four decedents. The wives of decedents Anderson and Brower have not seen or heard from their husbands since September 25, 1980. The Court finds that it is more probable than not that the Sea Mar in fact sank somewhere on Lake Michigan in the vicinity of South Haven. The Court further finds it most likely that all four of the crew members died at that time. C. Evidence of conditions during the Sea Mar’s crossing 16. The Sea Mar III was a 1974 model 32-foot cabin cruiser, equipped with two Chrysler engines. The boat had been owned by Claude Boles since 1977, and during that time one of the engines had been partially rebuilt. (Boles deposition at 23.) On September 25, 1980, when Boles turned possession of the boat over to Anderson and his mates so that they could transport the boat to Holland, the boat had one automatic bilge pump located in the forward bilge. (Id. at 24.) That pump was relatively new, having been installed by Boles to replace the pump that formerly was in the forward bilge. (Id.) The boat had one bilge, extending the length of the hull, which was separated by bulkheads open at the bottom. Water therefore was enabled to run the length of the boat with no impediment. (Id. at 25.) The boat could be steered either from the main steering station, located in the central cabin or “main salon” of the boat, or from the fly bridge up above. (Id. at 24.) The engine compartment was located directly beneath the central cabin floor, and it was accessible through four hatch covers. (Id. at 28.) Two of the hatch covers were located in the center of the floor; the two side hatch covers, which were larger, sat underneath the helmsman’s chair (on the starboard side), and a couch (on the port side). (Id.) The Sea Mar was equipped with a 12-channel radio with “excellent range.” (Id. at 27.) The radio took power from the main batteries, and it was located at the main cabin steering station. It also could be operated from a remote location on the fly bridge. (Id. at 31.32.) There were two compasses, one located at each steering station. (Id. at 28.) The boat had full charts aboard. There were three batteries, one hooked directly to each engine, and one to the main generator. (Id. at 34.) The Sea Mar was stocked with at least eleven PFD’s (lifejackets): six on the fly bridge, and at least five in the main cabin. (Id. at 26.) There was a halogen fire extinguisher located under one of the large hatch covers, and two manual fire extinguishers in the main cabin. (Id. at 31.) A hand bilge pump was stored in a closet near the galley. (Id. at 119.) There were no life rafts or dinghies on board. (Id. at 27.) The boat had navigation lights, running lights, and a mast light. (Id. at 36-37.) It had four gas tanks, two main and two reserve. Two tanks fed each engine directly, but the tanks were interconnected so that fuel could be supplied from either set of tanks to either engine. Total fuel capacity according to Boles was 250 gallons; there were two fuel gauges on board, one for each pair of tanks. (Id. at 40.) Boles stated on deposition that at cruising speed he achieved mileage of about .92 miles per gallon. (Id. at 44.) 17.Boles gave the decedents what he termed a thorough, “stem to stern” review of the boat’s mechanical systems before decedents departed. (Id. at 41-42.) He specifically remembered showing them the location of the radio and the life preservers; he showed one of the decedents the engine compartment. (Id. at 39.) He remembered going over in “detail” with Anderson the procedure for switching the fuel tanks when one set indicated diminished reserves. When decedents took possession of the boat, it was set to draw fuel from the rear tanks. In order to switch the fuel source to the forward tanks, the valve on the forward tanks had to be switched open, and the valve on the rear tanks closed. In order to close the rear tanks, one had to reach down into the rear bilge, under the rear hatch in the very stern of the boat. (Id. at 106-07.) 18. The Sea Mar had been serviced only two days prior to the date it departed for Michigan. Boles stated that on Tuesday he had taken the boat to a marine service outfit, in the Chicago area, for work on the starboard engine. The distributor, which was rusty, was cleaned out; the mechanics also cleaned the points, installed a new rotor and a new distributor cap. (Id. at 108.) Boles also had recently checked the oil. (Id. at 39.) 19. Boles stated in deposition that there were “about” 160 gallons of fuel on board at the time that he handed the Sea Mar over to the decedents. (Id. at 40.) This conclusion was not reached by reliance on the levels shown on the gas gauges, but by his “basic hours use and [his] experience of what [the boat] used.” (Id.) He did not recall what the gauges in fact showed for fuel levels at that time. Boles stated that he kept a log showing fuel and hours, which he relied upon to determine the' gas levels. The log apparently was not on the boat at that time, as Boles stated at his deposition that he still had it. (Id.) Boles remembered checking the estimate again sometime after the accident, and he stated that he was “quite confident” in his original calculation. (Id. at 41.) For several reasons, however, the Court cannot accept Boles’ estimate of the fuel level as a definitive statement on the subject. First, Boles’ conclusion is based upon his memory of a calculation made from information that the Court has not seen. The Court has no way of assessing the reliability of Boles’ method of judging fuel levels. As Boles’ estimate is only as good as the information that it is based upon, the Court is unable to give his estimate full credence without more facts. Further, and even more significantly, Boles stated that he had had the boat fueled “recently” before Thursday, September 25. (Id.) However, he did not relate how recently, and he also stated that he had had the boat serviced only two days before the incident, and that he had not taken the boat out since it was serviced, or apparently run the engine since then. (Id. at 108.) Boles’ calculation of the fuel level takes no apparent account of the fact that the boat had been out of his possession only a short time before, probably after the last time it had been fueled. There is a strong possibility that fuel was used in running or checking the engines at the time the boat was repaired. In light of this, the Court can find only that, although it is possible that there were as many as 160 gallons of fuel in the boat at the time it left Chicago on September 25, it is equally possible that there was a significantly smaller quantity of fuel on board. 20. All 1974 model Trojan F-32s, including the Sea Mar, had been the subject of a manufacturer’s recall and retrofit campaign between 1978 and 1979. Since 1974, the defendant had been aware that operators of the boats had experienced water entry through the aft air vents. The F-32, as originally designed, had aft air vents equipped with cowls that faced forward, and it had no bilge pump in the stern. The manufacturer in its recall notice stated that sustained operation under certain conditions of wave height, direction, attitude, speed and other variables could allow water to enter through the aft vents in sufficient quantities to “disable the engines and eventually swamp the boat.” The manufacturer recommended that owners of F-32s, 1974 models, install bilge pumps that it offered to provide in the aft sections of their boats. The defendant’s recall campaign was not publicized through the media or otherwise made known to the general public. Letters instead were sent by Whittaker to Trojan dealers and to purchasers, specifically first purchasers and those subsequent purchasers known to the manufacturer. The recall campaign was monitored by the United States Coast Guard. The first owner of the Sea Mar, Robert Olszewski, never received notice of the recall/retrofit campaign; likewise, Claude Boles, who was but the fourth owner, was unaware of the recall or of the fact that the manufacturer had determined that the boat had a need for an aft bilge pump. (Olszewski deposition at 44; Boles deposition at 117-18.) Boles therefore did not discuss the matter with the decedents. (Boles deposition at 118.) The parties have stipulated that it would have been feasible for the manufacturer to have designed the F-32s’ air ventilation system so that the air vents were not mounted on the sides of the hull. They also have stipulated that the boats had been designed for operation on large bodies of water, including the great lakes, in “foreseeable” weather conditions. 21. Neither Bay Haven Marina nor Ottawa Beach Marina, third-party defendants, were authorized Trojan dealers at the time of Whittaker’s recall campaign. They did not receive notice of the campaign, or of the manufacturer’s proposed retrofit, prior to the date of the decedents’ disappearance. Their employees, therefore, cannot be charged with notice of the recall prior to the accident. 22. Both plaintiffs and principal defendants presented expert testimony on the subject of the weather conditions that existed over southern Lake Michigan on the evening of September 25, 1980. Plaintiffs introduced the testimony of Conrad Gosset, a meteorologist. Gosset reviewed empirical findings from several land-based coast guard stations, airports, ■ and ships that had crossed Lake Michigan on that date. The data collected chiefly concerned wind speed and direction and wave height, at various times from late September 25 through early September 26. On the basis of these various findings, Gosset compiled his own estimates of actual wind speeds and wave heights over the entire southern one-third of Lake Michigan at specified times, follows: His conclusions were as Time (EDT; 9/25/80) Wind Speed Average Wave Height 7:00 p.m. 15-20 knots; NW 2 ft. 8:00 p.m. 20-25 knots; NW 3 ft. 9:00 p.m. 20-30 knots; NW 3-5 ft. 10:00 p.m. 25-35 knots; NW 3-6 ft. 11:00 p.m. 25-35 knots; NW 3-6 ft. (Plaintiffs’ ex. 288.) Gosset’s wave height estimates were expressed in terms of “average” wave heights, which he stated represented an average of all various wave heights present at a given time, not just the highest or lowest waves. He also stated that in reaching his estimates of wind speeds over the lake, he made no adjustment of the wind speed measurements taken over land to account for differences in friction and other factors that might not be present over water. His avowed reason for this was the “consistency” he noted between the wind speeds taken on shore, and those recorded at the offshore locations (i.e., the transiting ships). Gosset also reviewed, in preparation for his trial testimony, weather forecasts for the given date that had been prepared and disseminated by the National Weather Service. These forecasts were not used by him in preparing his data summary. He noted that at approximately 5:40 p.m. (EDT) on September 25, “increasing” winds out of the north-northwest at 23-33 knots were forecast, along with wave heights of from four to seven feet. He noted that by 7:00 p.m. (EDT), a small craft warning was in effect for the lower part of the lake. The defendants’ weather expert, Dr. Guy Meadows, was not a meteorologist but a marine engineer. He stated that in his review of. the weather data, he had discarded as unreliable all estimates of wind speed and wave height that were taken from shore-based locations. His reason for doing so was the conclusion that such observations cannot accurately reflect conditions over nearby bodies of water, because of the fact that the observations are affected by the proximity of the shore. In particular, Meadows noted that wind measurements taken over land usually will produce lesser values than wind speed measurements taken over water would be, because of additional friction and drag caused when the wind moves over land. Meadows also noted that wave height measurements taken from shore are distorted by the configuration of the lake bottom near shore. He expressed serious doubts as to the accuracy of wave height measurements based upon visual observation alone, noting that such estimates are subject to “wide variation.” Meadows therefore discarded much of the empirical data that was relied upon by Gosset. Meadows concentrated instead upon the wind speed measurements taken by the ships crossing the lake, which he believed had been reached by reliance upon objective instruments. He also took into account readings made by a weather buoy that was in place in northern Lake Michigan on September 25, 1980. Based upon this information, Meadows used theoretical means to reach his own conclusions as to wave heights in the southeastern section of Lake Michigan, specifically off the coast of South Haven, late on the crucial date. These conclusions are as follows: Significant Wave Time (EDT; 9/25/80) Wind Speed Height 9:00 p.m. 24 knots 6.0 ft. 10:00 p.m. ■ 24 knots 6.8 ft. 11:00 p.m. 25 knots 7.0 ft. 2:00 a.m. (9/26/80) 25-30 knots 7.8 ft. The salient characteristic of Meadows’ conclusions, as distinguished from those of Gosset, is his use of the term “significant wave height,” rather than average wave height, to express his findings. Meadows defined “significant wave height” as the average of the one-third highest waves present on the water at a given time, rather than an average of all visible waves. Insofar as the value is an average, it allows for the existence of waves that are greater than the average value, as well as waves that are smaller. Meadows testified that with a significant wave height of 7 feet, for example, one can predict that a 10-foot wave will occur approximately every six minutes; a 12-foot wave every 25 minutes; and a 15-foot wave every six hours. A significant wave height of 8 feet will yield, according to statistical prediction, a 10-foot wave every three minutes; a 12-foot wave every 10 minutes; and a 15-foot wave every two hours. Defendants, relying upon Meadows’ testimony, ask the Court to reject the conclusions of Gosset, which are based solely upon reported data. They state that Meadows’ testimony demonstrates that the data relied upon is inaccurate. Plaintiffs, on the other hand, urge the Court that Meadows’ results are too theoretical, and state that it should rely on the empirical results instead. The Court first notes that, in many respects, the results reached by the two experts are not inconsistent with each other. This is true for two reasons: first, because the results of Meadows were intended to provide values only for the very southeastern part of the lower lake; specifically, ten square miles off the coast of South Haven, Michigan. Gosset admitted that, with winds coming out of the northeast as he had concluded, wave heights would be highest in the southeastern portion of the lake, even though his results were not specific other than to the southern third of the lake. Meadows stated that his use of a theoretical method of calculating wave heights allowed him to be very specific as to location. Second, Gosset and Meadows expressed their conclusions as to wave height in significantly different terms. In light of these factors, it is not inconsistent to find, for example, that at 9:00 p.m. on September 25, the average wave heights for some parts of the southern one-third of the lake was from three to five feet, with waves in the extreme southeastern portion of the lake reaching a significant wave height of six feet. The Court finds, however, that to the extent that Gosset’s proposed data is intended to reconstruct conditions in all parts of the southern portion of the lake, it must reject his conclusions in favor of the more specific conclusions of Meadows. The Court’s reasons for this are two-fold. First, it notes that the transiting vessels that took wave height readings, which were the only sources Gosset relied upon from on the lake, all took their readings from the western part of the lake. (See plaintiffs’ ex. 291.) Gosset, however, admitted and Meadows confirmed that wave heights would be greater in the eastern part of the lake. Second, Meadows’ method of calculation, although “theoretical,” has been empirically tested. He stated that many of the weather buoys now in place in Lake Michigan were installed in response to the sinking of the Edmund Fitzgerald in November of 1975, after which it was observed that land-based weather data in many cases is inadequate to predict weather conditions over the water. The Court concludes therefore that Meadows’ specific hindcasts, expressed in terms of significant wave heights, more probably than not reflect the actual sea conditions off the coast of South Haven at the stated times. 23. This conclusion concerning the high winds and heavy seas is corroborated by reports from persons who had occasion to observe weather conditions from the eastern shore of Lake Michigan on the night in question. James Bradley, who at approximately 9:30 p.m. (EDT) was at his home on the shore of Lake Michigan, one-and-a-half miles north of the South Haven harbor, remembered that the night was “extremely windy.” (Bradley deposition at 9.) He stated that the glass in a picture window facing the lake was “bowing in” because of the wind. Bradley observed that he would not have taken his 50-foot commercial tugboat out that night, because of the rough conditions. (Id. at 16.) Michael and Sue McMahon, who were driving north that evening on 1-196, which is near the lake, remembered increasingly heavy winds and severe weather, including rain, thunder and lightning, roughly between St. Joseph and Holland. 24. The evidence in the case shows some conflicting indications concerning the route taken by decedents when they embarked for Holland from Chicago. Repeated statements made by various of the decedents to the McMahons, and to the wives back in Holland, revealed the intention to take a direct route across the lake. This intention also is reflected in the decedents’ estimated time of arrival of 10:00 pm (EDT), which would have allowed for the four to five-hour trip required if they were to go straight across. On the other hand, Boles stated on deposition that he observed the decedents drive out of Chicago in an “easterly” direction, more south than the route that would have led directly to Holland. The Court finds that it is most likely that decedents did depart from Chicago intending to drive directly across to Holland. Boles only observed them for a short time, during which they probably had not set the course that they would follow once they got farther from land. In the Court’s estimation his observations are not sufficient to rebut the strong inference, raised by the other evidence, that decedents did in fact take a more or less northeasterly course across the lake, that being the most direct route to their destination. 25. James Bradley testified (by deposition) that at approximately 9:30 pm (EDT), give or take 15 minutes, he heard a transmission over channel 16 on his marine band radio stating “Grand Haven Coast Guard, this is the Sea Mar.” (Bradley deposition at 4.) Bradley at the time was sitting in his home overlooking Lake Michigan. Bradley stated that his radio, which was a portable, hand-held unit with “very limited range,” could pick up signals from a maximum of 10-12 miles away. (Id. at 8.) He stated that he heard no response to the Sea Mar’s signal, nor did he hear any further transmission in which the vessel was identified. He remembered that the voice making the transmission was a male voice, and that it was calm and contained no accent or other distinguishing characteristic. (Id. at 18-19.) He did not construe the message as a distress call. 26. Donald Olson and his daughter, Kimberly Olson DuBois, both stated on deposition that on September evening in 1980, date uncertain, they were putting shingles on their boathouse on the lake-shore south of South Haven when they both saw a “bright light” out on the lake. Each of them testified that the light was a single light, unwavering, which did not resemble a flare. (Olson deposition at 8-9; DuBois deposition at 9.) They each stated that the light did not appear to move, and that it was in place for at least several minutes. (Olson deposition at 9: DuBois deposition at 11.) They estimated that it was located northwest of their location, which was on the shore approximately one mile south of South Haven. (Olson deposition at 12; DuBois deposition at 12.) Neither one of the deponents could remember the exact date of the occurrence. Donald Olson did state that the next morning he heard a radio announcement concerning the search for the missing Sea Mar; Kimberly DuBois testified that the next day she read about the missing boat in the newspaper. (Olson deposition at 11; DuBois deposition at 13-14.) In light of the fact that the coast guard search for the Sea Mar did not begin until about 11:00 on the day after the disappearance, however, the Court concludes that it is unlikely that the Olsons in fact saw the light on September 25. It therefore concludes that the light was unrelated to the Sea Mar or its crew. 27. The conclusion that the Sea Mar was within 12 miles of South Haven at 9:30 pm clearly is not fully consistent with a finding that the decedents followed the rhumb line from Chicago to Holland until the time of their disappearance. The direct line between Chicago and Holland comes only within approximately twenty miles of South Haven. The unavoidable conclusion, therefore, is that at some point after the departure for Michigan, decedents for some reason departed from the route they had set out on. The location of the debris identified as being part of the Sea Mar, primarily between South Haven and Saugatuck, supports the conclusion that at some place north of South Haven decedents had cut in much closer to shore than their direct route would have taken them. D. Instances of water intake on other Trojan F-32s 28. The plaintiffs in this case attempted to illustrate the nature of the water intake problem, the subject of the defendant’s recall letter discussed above, by introducing the depositions of the owners of several other Trojan F-32s, 1974 models. These boats all were subject to the recall instituted by Whittaker. The testimony detailed occasions on which the boat owners, out on various bodies of water, had experienced water intake that they determined was due to the admitted air vent defect. Plaintiffs would have the Court find that these examples of water intake illustrate the circumstances that give rise to such an occurrence; i.e., speed of boat, attitude, type of seas, course to the seas and other variables. The plaintiffs would have the Court further conclude, based upon this information, that the predicate conditions were present during the trip made by the Sea Mar, and therefore that water intake of the type chronicled by the other boat owners crippled the Sea Mar and caused it to swamp and to sink. The Court finds that the various accounts . by other boat owners, which are eight in number, are marked primarily by their dissimilarity to one another. The details concerning wave height; type of sea; amount of water taken on; attitude of the boat; indicate that no single variable is always present when water intake has occurred. For example, the deponents reported wave heights that ranged from one to one-and-one-half feet (Heuman deposition at 11); two to three feet (Lorenz deposition at 25); four to six feet (Kalajian deposition at 14); to six to eight feet (Raub deposition at 29). The amount of water taken on ranged from eight inches in the stern (Heuman deposition at 9); to 20-24 inches in the stern (Raub deposition at 19); to levels sufficient to reach the engine shafts in the middle compartment (Hackert deposition at 10). Water entered at different rates: one owner took on eight inches of water after an hour and a half (Heuman deposition at 9); another took on over twenty inches of water after only about 30 minutes (Raub deposition at 19). Many of the deponents stated that the phenomenon occurred when they took the seas on the quarter bow; two reported that it occurred with following seas (Heuman deposition at 11; Hackert deposition at 26). Most of the owners experienced the condition while traveling across open water; one, however, reported it after following the shoreline (Heuman deposition at 9). The Court finds that these depositions, even taken as a group, are not particularly helpful in providing the fact finder with a means by which to predict what predicate circumstances are necessary for water intake. They serve to demonstrate that it is the combination of circumstances, rather than any one particular circumstance, that make the phenomenon possible. Only a few specific facts can be gleaned from the other owners’ testimony. First, all of the experiences related show that the water intake was the result of the movement of the boat through the water, and that as the boat slowed or stopped, so did the influx of water. Many of these other owners actually observed that the water was entering through the aft air vents. {See, e.g., Raub deposition at 22; Heuman deposition at 22; Premo deposition at 24; Seidell deposition at 19.) Second, the various experiences illustrate that the water tended to build up in the stern of the boat, and that as it did so, it affected the boat’s speed and/or maneuverability in a way that was perceptible to the driver. The point at which the water became noticeable, however, varied a great deal, apparently according to the rate of intake and the individual habits and perception of the person driving. Finally, and most significantly, the variety of circumstances present in the deposition accounts illustrates clearly that the rate of water intake, as well as the presence of any water intake to begin with, is a characteristic of the individual boat involved. E. Former owners of the Sea Mar 29. The Court therefore found the accounts of former owners of the Sea Mar itself to be the most probative evidence on the subject of the water intake problem. Plaintiffs introduced the depositions of all former owners of this boat. Robert Olszewski, the first owner of the Sea Mar, stated that he never experienced water intake on the boat. He owned the boat for approximately one year, and during that time he crossed Lake Michigan in it two times. (Olszewski deposition at 22-23.) He was quite confident in his assertion that no water was taken on, stating that he checked the bilge frequently while underway and at the conclusion of his trips. (Id. at 31-32.) The second owner of the Sea Mar, however, had a markedly different experience. Donald Lazar related that he first noticed water intake on an extended trip, covering two and a half hours, from Michigan City, Indiana to Chicago. (Lazar deposition at 15.) He recalled that that was his first lengthy trip in the boat. Lazar stated that the water accumulation had the effect of making the boat feel “heavier and sluggish.” (Id. at 16.) Because of the water intake, Lazar installed a rear bilge pump in the boat before his second year of operating the boat. (Id.) The third owner of the boat, Jack Zimmerman, used the boat seldom and did not remember any specific instances of water intake. (Zimmerman deposition at 14.) He did not recall whether there were two bilge pumps in the boat or only one, but he did state that he did not remove any bilge pump from the boat, and that he did not know of anyone doing so during the time that he owned the boat. (Id. at 16.) The last owner Claude Boles, testified on deposition that the boat had only one bilge pump, in the forward portion of the boat, during the entire time that he owned it. (Boles deposition at 24.) He stated that he did experience instances of water intake when he took the boat out on extended cruises. (Id. at 57.) According to what Boles related, the water built up to the point where he could see it if he opened the rear hatch to switch fuel tanks, and it was sufficient in amount to cause him to stop the boat periodically in order to let the water be pumped out. (Id. at 57-58.) He felt that the presence of the water hampered the efficiency of the boat and caused it to slow down. (Id. at 58). Boles' had no very clear memory of whether he discussed the phenomenon, or his practice of periodically stopping the boat, with the decedents. (Id. at 60-61.) However, Boles stated elsewhere in the deposition that he told the decedents “nothing specific” in terms of particular problems or “idiosyncrasies” that the boat possessed. (Id. at 82.) In light of this, the Court finds it most probable that Boles said nothing to the decedents about the water intake he experienced on long trips, or about his method of handling it. The testimony of Lazar and of Boles is most persuasive that this boat did have a severe, repetitive water intake problem. Lazar and Boles owned the boat the longest, traveled with it the most often, and were subjected to all of the dangers and defects that had been reported by defendant Whittaker in its recall notice. Boles related his harrowing experiences as though they almost were a matter of course, stating that he would observe an accumulation of water upon ordinary operation of the boat, that he would stop the boat allowing it to resume its position and that the one and only bilge pump then would remove the accumulated water. (Boles deposition at 57.) So acute and persistent was the problem that Boles purchased a second bilge pump for the express purpose of installation in the boat’s stern. (Id. at 60.) Neither Lazar nor Boles ever observed the exact source of the problem, but neither of them seriously investigated the situation. (Lazar deposition at 78; Boles deposition at 58.) Their descriptions of the way in which water was taken on, however, coincide with the descriptions of the other owners, all of whom said that water accumulated in the stern, and ceased to accumulate if the boat was no longer moving. In light of this, the Court has no hesitation in concluding that the water intake experienced by the owners of the Sea Mar was in fact due to the same splashing through the aft air vents that had been reported by the other F-32 owners, and that was described in the Trojan recall notice. Lazar and Boles each stated that the phenomenon occurred during cruises over an extended period of time. Lazar opined that the condition according to his experience was not a result of the height or direction of the seas, but rather of continued operation of the boat being driven on plane, with the hull lifted up and the boat never stopping or settling down, over a sustained period of time. (Lazar deposition at 81-81.) Boles did not state the exact sea conditions that gave rise to his experience, but confirmed that the phenomenon occurred when he was cruising uninterruptedly over time. (Boles deposition at 57.) The continuous driving in a planing attitude therefore appears to the Court to be the crucial component of water intake for this particular vessel. F. Circumstantial evidence of causation 30. Both plaintiffs and defendants presented expert testimony intended to instruct the Court concerning certain physical properties of the Sea Mar, such as its structural integrity and its stability. Plaintiffs presented the expert testimony of Commander John Deck, who characterized himself as a “marine consultant” and naval architect, and Lt. Col. Robert Ricard, also a “marine consultant.” Deck’s testimony in large part related the results of an inclining experiment that he conducted on a Trojan F-32 called the “Mucky Duck.” The “Mucky Duck” was a 1975 model boat, manufactured in 1974, which was moored at Saugatuck, Michigan when the experiment was performed. The objective of the experiment was to test the effect that a large collection of water in the bilge of this boat would have on the boat’s inherent stability. Deck related that he began his experiment by stripping the “Mucky Duck” down to what he called a “light ship condition.” This condition allowed Deck to perform tests on the basic stability of the vessel, which he did by placing weights on the vessel and measuring its degree of heel. Deck then restored the vessel to a “pre-casualty condition” by taking the stripped-down ship and adding to it the additional weight due to the two extra fuel tanks, the furniture and miscellaneous items listed in Boles’ inventory, and the four crew members. The vessel then was flooded with enough water to bring it to what Deck termed “flood stage I.” This stage represented the amount of water necessary, assuming a 2 degree angle of plane, to reach the spark plugs in the engine compartment. According to Deck, this turned out to be 450 gallons of water (approximately 1.5 tons). When “flood stage I” was attained, Deck calculated a variable known as the righting arm. This variable, according to Deck’s testimony, bears a direct relationship to a vessel’s seaworthiness or, more specifically, its ability to withstand waves hitting it on the beam, and to avoid capsizing. In the next part of the experiment, Deck added an additional 450 gallons of water to the boat (“flood stage II”) and again measured its righting arm. As a result of the data obtained through the experiment, as well as through his general expertise in the area, Deck testified that he reached several conclusions. First, he concluded that in an unflooded condition, the F-32 was stable and “seaworthy” and could withstand at least up to 12-foot seas. Second, Deck stated that in his opinion, the 450 gallons taken on in “flood stage I” would be sufficient to disable the boat’s engines. Deck hypothesized that at that point, the boat would be dead in the water and soon would be knocked beam to the seas by the strength of the waves-. The 450 gallons of water would, in Deck’s estimation, cause the draft of the stern of the boat to increase, thereby decreasing the amount of freeboard available below the aft air vents. Deck assumed that in this condition, the boat, without power, would be rolling freely in the waves and would continue to take on water. Finally, Deck concluded that at some point between “flood stage I” and “flood stage II,” the boat would have taken on sufficient quantities of water that its stability would be so impaired that it would be readily susceptible to capsizing in six-foot seas. . Deck expressed a few other opinions about the Sea Mar, based upon his general background and expertise. Most notably, he opined that the presence of a rear bilge pump in the F-32, although it might have stemmed the buildup of water, would not “cure” the defect inherent in the air vent design. He also opined that the gradual intake of water, in the way experienced by the other boat owners, would be less noticeable if the boat were driven on plane than in a displacement mode, particularly as the water built up. He stated that the added weight due to water taken on certainly would increase the boat’s fuel consumption as it traveled at a constant speed. The opinions of Deck were largely confirmed by the plaintiffs’ other expert, Lt. Col. Ricard. Ricard concluded that the Sea Mar was “unseaworthy” due to the air vent defect. He also concluded that the presence of an aft bilge pump would not have removed the inherent defect, his opinion being that a boat ought to be designed to “keep water out.” Ricard testified that, based upon his training and experience in the area of ship building, the Trojan F-32 is a boat of “good structural integrity,” subject, of course, to the stability problems outlined by Deck in connection with the water intake situation. Ricard also provided the Court with several observations and conclusions about nighttime navigation. He noted that at night, it is more difficult to, notice differences in speed and in attitude, because the visual frames of reference (e.g., the horizon) are not available. He did state that in general, water intake would be more readily noticeable when traveling on plane than when in the displacement mode, because of the change in the boat’s trim. He opined that by the time the Sea Mar hit six-foot seas, however, it was traveling in a displacement mode rather than on plane. Defendants presented the testimony of James Wynne and Peter Ball. Wynne testified that in his opinion, three or four thousand pounds of water in the bilge of an F-32 would be immediately apparent to the driver of the boat, particularly in a planing attitude. He stated further than the water collection undoubtedly would be perceptible at some point before three thousand pounds had been taken on. Wynne stated that he had no criticism of the mechanics of Deck’s inclining experiment; however, he opined that such a static experiment bears little relationship to the way a boat would behave in a dynamic situation, such as the open lake. He stated that in his opinion, it would be very difficult to predict the effect that water intake would have on the boat’s center of gravity. Wynne specifically stated that he felt that in seas of the types hindcast by defendants’ expert, this boat would have been susceptible to broaching and capsizing. Ball’s testimony was concerned in large part with his opinion concerning the capacity of the fuel tanks on board the Sea Mar. He stated that according to his belief and information, the two extra fuel tanks on the boat only had a capacity of 50 gallons each. With the two standard tanks at a 60 gallon per tank capacity, the total fuel capacity of the boat was only 220 gallons, and not 250 gallons as Boles had stated in his deposition. Ball concluded that, following from this error in Boles’ basic assumption as to the fuel tank capacity, Boles’ estimate also must have been off. He opined that in fact, there were only about 130 gallons of fuel on board when decedents took off; Ball stated that with this amount of fuel, the tanks would have been sufficiently low by the time decedents neared the end of their crossing that sloshing fuel could have caused the engines to sputter or stop. Ball further stated that the additional weight added by water intake, if any was experienced, would certainly increase the boat’s fuel consumption. The Court reaches several conclusions based upon the expert testimony summarized above. First, the Court finds that this boat in fact was stable and seaworthy, leaving aside for the moment the air vent problem, and that in an unflooded condition it could be safely navigated in seas of the sort that the Court found existed in the eastern part of Lake Michigan on the relevant date. Second, the Court accepts the testimony of Deck, which was confirmed by Ricard and defendant’s expert, Wynne, that from the point of boat design, the boat, with the aft air vents as designed by Trojan, still would have been dangerously defective even with the presence of a stern bilge pump. Third, the Court accepts the experts’ conclusions that the presence of water in the boat’s bilge would increase the vessel’s fuel consumption. Finally, the Court is convinced by the testimony of Deck that water intake, of the type described by the former owners of this boat, had an adverse affect on the Sea Mar’s inherent stability, and it finds further that the danger caused by this situation was greatly accentuated in heavy seas. 31. Based upon the facts already found, the Court is compelled to conclude that the Sea Mar, during its last attempted crossing of Lake Michigan, did in fact take on water in substantial quantity. This conclusion is, of course, immediately apparent based upon the testimony of Laza