Evelyn Gertz, as Administratrix of the Estate of Alfred Gertz, Deceased v. Jack McCarty

This is an appeal from a judgment of the United States District Court for the District of Oregon which denied appellant’s claim for damages for the wrongful death of her husband in a boating accident.

On August 5, 1967, appellant, her husband and her aunt, accompanied by defendant McCarty, his wife and daughter, set out in McCarty’s 18-foot outboard motorboat to cross the dangerous Nehal-em Bay bar on the Oregon coast. While crossing the bar, McCarty turned his boat about and headed for shore. Once the turn was completed, a wave struck the boat and capsized it, thereby drowning appellant’s husband and aunt and Mrs. McCarty.

Appellant, as administratrix of her husband’s estate, brought a wrongful death action in the Oregon District Court pursuant to that court’s admiralty and maritime jurisdiction ( 28 U.S.C. § 1333 ). The court, sitting without jury, held that McCarty was guilty of no negligence which was the proximate cause of Mr. Gertz’ death.

This appeal raises two issues. First, appellant contends the trial court applied an incorrect legal standard in reaching its determination. Second, appellant argues that the record does not support the trial court’s finding on the…