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In re Petition of Glenview Park District as Owner of One Eighteen Foot Grumman Aluminum Canoe

decided: August 25, 1976.

IN THE MATTER OF THE PETITION OF THE GLENVIEW PARK DISTRICT AS OWNER OF ONE EIGHTEEN FOOT GRUMMAN ALUMINUM CANOE, PETITIONER-APPELLEE, CROSS-APPELLANT,
v.
EDYTHE MELHUS, CLAIMANT-APPELLANT, CROSS-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 73 C 786 Frank J. McGarr, Judge.

Pell, Tone, and Bauer, Circuit Judges.

Author: Pell

Pell, Circuit Judge.

This admiralty litigation was initiated by the Glenview Park District (Glenview) filing a petition in the district court seeking exoneration from or limitation of liability in connection with the drowning of Dr. George E. Melhus on September 30, 1972. The widow, as personal representative of the decedent's estate, filed in the action a claim against Glenview for wrongful death damages. Following a six-day bench trial, the district court denied Glenview's petition but on the merits entered judgment in Glenview's favor on the wrongful death claim. Both parties have appealed.

While there are some contradictions in the testamentary versions of the happenings leading to the death, and while we will advert in greater detail to certain specifics of the evidence which we deem dispositive of the legal issues raised, the following is the general factual background of this litigation as to which there appears to be no dispute.

In the fall of 1972 Glenview advertised a 4 hour, 15 mile canoe trip down the Fox River. In choosing a river to canoe Glenview checked an Illinois Department of Conservation booklet and narrowed the choice to two. The Kishwaukee was rejected in favor of the Fox, which was found to be a calm, slow moving river with very few obstructions as well as being wide. Under ordinary conditions the Fox River was shallow enough for wading. The Glenview supervisors had taken a reconnaissance run and two weeks before September 30 had taken a group trip through. They assumed that conditions would be the same as on the previous trips. They did not check with the Dayton Gauging Station or other sources for river conditions. The Fox on September 30 was at flood stage and at places had risen over its banks with the result that trees on the banks were in the water as well as the water being closer to overhanging branches.

The trip which the Melhus family took was advertised by Glenview as follows:

FEE: The fee will be $8.00 per person and will include: Transportation by bus to Sheridan, pick-up at Wedron and transportation back to Roos, use of canoe, paddles and life preservers, and supervision down the river.

Mrs. Melhus went to the Glenview office on September 16 and asked the secretary what canoeing skill was needed to participate in the trip. She was told that it was minimal and would be perfectly safe for her five and eight year old children. Children under 16 were not allowed on the trip unless accompanied by an adult. She paid the fees and was registered for the trip. Her husband was a nonswimmer, had been in a canoe several times as a youngster and had told his wife that he did not think canoeing was a very complex task.

On the day of the trip, the Glenview supervisors laid out eight canoes on the river bank and distributed various life jackets and ski-belts. Children were required to wear life preservers, but it was optional with adults. Dr. Melhus put on some sort of flotation equipment before embarking, but the evidence is not clear as to what his status was in this regard at the time of the fatal occurrence. Guy Bacci, one of the Glenview supervisors, told the group that his brother would be in the lead canoe, that he would be in the last canoe, and that he would like everyone to stay relatively in the center of the river. No basic canoeing instructions were given, nor was there inquiry as to swimming ability or canoeing expertise of the voyagers.

During the early part of the trip the Melhus canoe was noticed as zigzagging considerably. After some 45 minutes on the water, the group approached an island. The Melhus canoe was in the center of the river, and as the family approached the island they saw trees in the water about 50 feet ahead of them. Dr. Melhus took over the sole paddling and attempted to steer the canoe to the left to avoid the trees. While still off the bank of the island, the canoe struck a low hanging limb which raised the canoe and spilled the family into the river. Dr. Melhus drowned in 8 to 10 feet of water.

Formal findings of fact and conclusions of law were not entered, but the final judgment order referred to the findings of fact and conclusions of law announced in open court. The judgment order recited that the canoe in question was not being operated under a bareboat charter, that the loss was not occasioned without the privity and knowledge of the Glenview Park District, and that Glenview, its agents and employees, were not guilty of a breach of any duty or guilty of any negligence which did or could have caused or contributed to the death of George Melhus.

The action of the district court is claimed to raise a number of issues for this court's consideration. We are satisfied, however, that the principal issue in these cross appeals is whether or not Glenview was guilty of actionable negligence. Before turning to that pivotal issue, we consider the threshold question of the scope of our review.

I. Scope of Review

Melhus cites Barbarino v. Stanhope S.S. Co., 151 F.2d 553, 555 (2nd Cir. 1945), and Pacific Tow Boat Co. v. States Marine Corp., 276 F.2d 745, 752 (9th Cir. 1960), to support her position that the determination of negligence, insofar as it requires the testing of particular facts against a fixed standard of conduct, is a jural act involving a question of law and is freely reviewable by this court.

Whatever may be the views of other courts of appeals, it appears that this court has already adopted a position regarding reviewability of a finding or conclusion of negligence. In re Rapp's Petition, 255 F.2d 628, 632 (7th Cir. 1958), ruled that this court has no greater scope of review in admiralty cases then under Rule 52(a) of the Federal Rules of Civil Procedure. In Commercial Transport Corp. v. Martin Oil Service, Inc., 374 F.2d 813, 817 (7th Cir. 1967), after observing that the trial court had found both Commercial and Martin at fault, this court stated that "in reviewing the findings of the admiralty court, the 'clearly erroneous' rule governs." See also Schwerman Trucking Co. v. Gartland Steamship Co., 496 F.2d 466 (7th Cir. 1974).

We hold that review of a trial court's finding of non-negligence in an admiralty proceeding is governed by the clearly erroneous rule specified in Fed.R.Civ.P. 52(a). We consider the present case to be governed by McAllister v. United States, 348 U.S. 19, 20, 99 L. Ed. 20, 75 S. Ct. 6 (1954), which permits an appellate tribunal in an admiralty case to set aside the judgment below only when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."

II. The Negligence Issue

This court has had little opportunity to review admiralty cases involving claims of negligent conduct resulting in death by drowning.*fn* When one such case was presented in Rundell v. La Campagnie Generale Transatlantique, 100 F. 655 (7th Cir. 1900), this court found it unnecessary to examine in depth the concepts of proximate cause or duty in relation to a maritime tort cause of action. Relying on the analysis set forth in The Harrisburg, 119 U.S. 199, 30 L. Ed. 358, 7 S. Ct. 140 (1886), this court ruled that general maritime law allowed of no recovery in an action of tort for the death of a deceased occurring upon the high seas by reason of the negligence of the defendant. 100 F. at 659. Our Rundell decision cannot stand in light of Moragne v. States ...


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