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Karbel v. Comerica Bank7/31/2001
FOR PUBLICATION
9:00 a.m.
This action arises from the March 13, 1993, sinking of Charley's Crab, a forty-foot sailboat owned by C.A. Muer Corporation and operated presumably by defendants' decedent, Charles A. Muer, that resulted in the deaths of all aboard, including George F. Drummey and Lynne S. Drummey, plaintiff's decedents. Plaintiff Robert A. Karbel, as personal representative of the estates of the Drummeys, commenced a wrongful death action against defendants.
Plaintiff appeals as of right an order of the trial court granting summary disposition in favor of defendants. We affirm.
I.
In the early part of March 1993, plaintiff's decedents were vacationing with Charles Muer and his wife on the sailboat Charley's Crab. The two couples had been sailing in the waters surrounding the Bahama Islands and intended to sail to Jupiter, Florida. On March 10 and 11, 1993, the United States Weather Service issued severe weather watches and warnings for the area of the sailboat's expected course. A storm hit the coast of Florida on March 13, 1993, resulting in high winds and heavy seas. The sailboat was reported as overdue on March 15, 1993, and a search was conducted, but no evidence of the sailboat or its occupants was found. It was judicially determined that the sailboat and its occupants were lost at sea on March 13, 1993, off the coast of Florida.
On December 12, 1994, plaintiff commenced a wrongful death action against defendants, alleging that Muer owed plaintiff's decedents a duty to exercise the care of a reasonably prudent mariner. Plaintiff claimed that Muer should have known the approaching storm presented an unreasonable risk of harm to plaintiff's decedents and that Muer was negligent for failing to seek safe harbor and in proceeding to Jupiter, Florida. Plaintiff contended the cause of action was governed by general maritime law or, alternatively, the Death on the High Seas Act (DOHSA), 46 USC 761 et. seq., which permits suits for damages resulting from death that occurs more than one marine league (equivalent to three nautical miles) from shore as a result of wrongful act, neglect, or default.
Following the commencement of certain proceedings in federal district court by the estate of Charles A. Muer and the ultimate resolution of the matter by the Sixth Circuit Court of Appeals, during which time the state court proceedings were stayed, the case was returned to Wayne Circuit Court. Defendants then moved for summary disposition, contending that the pivotal issue in the case was whether general maritime law or the DOHSA applied. Defendants argued that one of the essential elements of plaintiff's claims under general maritime law was that plaintiff's decedents' deaths occurred within one marine league from shore, which plaintiff had the burden of proving by a preponderance of the evidence. Defendants claimed that plaintiff could not meet this alleged burden because plaintiff's expert had definitively testified at his deposition that the sailboat sank more than one marine league from shore. Defendants further argued that plaintiff's expert's subsequent affidavits recanting his deposition testimony could not be used by plaintiff to disavow the expert's previous sworn statements and that in any event, the information contained in these affidavits was based on conjecture and speculation. Defendants maintained the evidence showed that the sailboat sank more than one marine league from shore and, therefore, the DOHSA provided the exclusive remedy for plaintiff's decedents' deaths; consequently, plaintiff's claims under general maritime law should be dismissed because plaintiff did not meet his burden of proof and plainti
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