The opinion of the court was delivered by: AVIS
The libellant was injured seriously by reason of the partial or complete overturn of the Gas Screw Nereid in Great Egg Harbor Inlet, between Longport and Ocean City, New Jersey, on September 26, 1937, and instituted this suit for damages against the vessel and its owner, based upon the alleged negligent operation of the vessel.
(1) Respondent John I. Somers, who resided at Pleasantville, New Jersey, was the sole owner of the Nereid at the time libellant sustained his injuries.
(2) That said Nereid is a fishing boat 26 feet long and 8 1/2 feet beam.
(3) Prior to September 26, 1934, libellant had arranged with respondent Somers to take a party fishing, including libellant; said arrangement or agreement being for hire and for which service respondent was to be paid a certain fee or passage money. Neither the pleadings nor the testimony discloses the compensation to be paid, but undoubtedly respondent was a private carrier for hire.
(4) The arrangements were made for a fishing trip and the intention was to sail the Nereid to the Atlantic Ocean through the inlet aforesaid.
(5) On September 26, 1937, shortly after 8 o'clock A.M., respondent, with seven passengers, including libellant, left the dock at Ninth Street and the Bay, Ocean City, New Jersey, aboard the Nereid headed for the inlet toward the Atlantic Ocean.
(6) Before leaving the dock respondent advised his passengers generally that it was a question whether he would take them out in the ocean, but they would go out to the inlet to see if it would be advisable to proceed to the fishing grounds.
(7) The son of respondent, one Harry Somers, who was about 22 years of age, was on the top of the cabin, towards the bow of the boat, as it came under the Longport-Ocean City bridge, heading towards the inlet.
(8) At a point near buoy "B", and about 1500 feet westerly of the bar of the inlet, a wave, approximately 15 feet in height, suddenly made up in front of the boat, hit it, and the young man Harry Somers was washed overboard. As he came past the boat, one of the passengers grabbed his collar and he was pulled in the boat.
(9) According to the testimony of Robert B. Black, a witness called for libellant, "It all happened in a split second", and all of the witnesses who saw it said it came up very quickly.
(10) Immediately after this wave struck, another wave of about the same size was making up in front of the boat, coming towards it, and about 200 feet away. The captain, respondent, as soon as his son was pulled in the boat, steered the boat sharply to the right or starboard, endeavoring, as he testified, to run away from the second large wave.
(11) The second wave struck the boat, whether at broadside, as some witnesses testified, or quartering off, as respondent testified, does not seem important, but the boat turned on its side to at least a perpendicular, throwing out all of its occupants, except possibly the captain and a member of the party, one Elwood A. Conover, who testified that he did not leave the boat. The captain testified ...