THAMES SHIPYARD AND REPAIR COMPANY, Plaintiff in Cross Claim, Appellant, v. UNITED STATES, Defendant, Appellee. NORTHERN VOYAGER LIMITED PARTNERSHIP; ONEBEACON AMERICA INSURANCE COMPANY f/k/a/ COMMERCIAL UNION INSURANCE COMPANY, Plaintiffs, Appellants, v. UNITED STATES, Defendant, Appellee.
No. 02-1619, No. 02-1620
United States Court of Appeals For the First Circuit
November 26, 2003
Volume I of II. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. [Hon. Rya W. Zobel, U.S. District Judge]
Thomas J. Muzyka, with whom Robert E. Collins and Clinton & Muzyka, P.C. were on brief, for appellant Thames Shipyard and Repair Company.
Michael J. Rauworth, with whom Cetrulo & Capone LLP were on brief, for appellants Northern Voyager Limited Partnership and OneBeacon America Insurance Company f/k/a Commercial Union Insurance Company.
Peter F. Frost, Trial Attorney, Civil Division, with whom Robert D. McCallum, Jr., Assistant Attorney General, Donald J. Sullivan, United States Attorney, and Peter Levitt, Assistant United States Attorney, were on brief, for appellee.
I.
A. The Sinking of the NORTHERN VOYAGER
On the morning of November 2, 1997, the NORTHERN VOYAGER, a 144-foot fishing vessel, was proceeding a few miles off the coast of Gloucester, Massachusetts when crewmen discovered water flooding a compartment in the ship‘s stern. The flooding, which resulted when the starboard rudder dropped out of the vessel, was severe and the crew immediately began trying to pump out the water. Despite the crew‘s best efforts, the water level in the compartment
The situation was such that the master of the NORTHERN VOYAGER, Captain David Haggerty, radioed Coast Guard Station Gloucester, told them that “[w]ater [was] coming in fast,” and requested that they “get some pumps out to [the ship].” To complicate matters, a storm had passed through the area the night before, leaving swells of roughly six to eight feet. Station Gloucester (under the command of Chief Warrant Officer Wesley Dittes) responded immediately by launching a 41-foot boat, to be followed shortly thereafter by a 47-foot one. The Coast Guard also diverted a 110-foot cutter, the ADAK, to assist as On Scene Coordinator. Coast Guard Group Boston, which is organizationally superior to Station Gloucester, assumed the role of Search and Rescue Mission Coordinator.
The 41-footer arrived on the scene at approximately 9:15 a.m. and immediately evacuated eight crew members who apparently requested to leave the NORTHERN VOYAGER, leaving on board of the original crew Captain Haggerty, the engineer, and the first mate. Two Coast Guardsmen, Petty Officers Adam Sirois and Brian Conners, boarded the NORTHERN VOYAGER and attempted to assist in continuing efforts to remove water from the ship using extra pumps supplied by the Coast Guard. Although what was done slowed the rate of water
As the NORTHERN VOYAGER rolled and began to list, Coast Guard Officer Dittes (aboard the 47-footer), Group Boston, and the On Scene Coordinator began discussing the possibility that the vessel would need to be evacuated. Several factors worried Dittes. His most immediate concern was that the vessel‘s port side tilt made both access to and escape from the NORTHERN VOYAGER more difficult. This is because the fishing boat‘s only access port, a door from the shelter deck through which the crew boarded and departed from the boat, was on the starboard side. As the fishing boat tilted more and more to port, the starboard side was raised higher and higher off the surface of the water. No less worrisome was his concern about progressive flooding, which was causing the vessel to settle further in the water, with the danger that the boat would capsize without warning before it sank, trapping anyone aboard before they could be rescued.
Based upon these concerns, Dittes‘s conversations with NORTHERN VOYAGER crew members who had already boarded the 47-footer, and the continual progression of the flooding, Dittes ordered his men to evacuate the NORTHERN VOYAGER‘s remaining crew members. Captain Haggerty opposed the Coast Guard‘s decision to evacuate his vessel and wanted to talk about other options for pumping and salvage, including commercial salvage.
The NORTHERN VOYAGER was abandoned at 10:27 a.m., continued to sink, and capsized at 11:22 a.m., fifty-five minutes after the last person left the vessel. Captain Haggerty did not want to stay around and watch the boat sink. Accordingly, shortly after the evacuation, the Coast Guard 47-footer headed back to Station Gloucester with Captain Haggerty and the remaining members of his crew on board.
According to plaintiffs’ experts, there were various steps that Captain Haggerty and his senior crew could have taken to stabilize the situation if the Coast Guard had permitted them to stay on the vessel. These steps included shutting certain doors and making them watertight so that the flooding was confined to two compartments in the stern of the boat. If these steps had been taken, plaintiffs’ experts asserted, the vessel could have floated for at least another twenty hours even assuming that no pumping capacity was brought to bear. This would have provided ample time
B. Alternative Salvage Efforts Were Underway
While Coast Guard rescue efforts were underway, radio traffic about the NORTHERN VOYAGER was overheard by a commercial salvor named Michael Goodridge based in Newburyport, Massachusetts. At 9:03 a.m., just minutes after Captain Haggerty first radioed for Coast Guard assistance, Goodridge placed a telephone call to Station Gloucester. He told them that he had dive gear and pumps and asked whether they needed assistance. Station Gloucester responded that they were busy and they were going to “handle it.”
At 9:04 a.m., Captain Haggerty informed the Coast Guard by radio that he thought the water was coming up through the vessel‘s rudder-post. He conjectured that the NORTHERN VOYAGER “might ah, dropped the rudder.” Earlier, he had explained that the vessel had lost its steering capability.
Several minutes later, the Coast Guard transmitted an Urgent Marine Information Broadcast stating that it “ha[d] received a report that the Fishing Vessel Voyager is taking on water” and requesting that “all vessels keep a sharp lookout, assist if possible, [and] report all sightings to the U.S. Coast Guard.” This was the Coast Guard‘s only attempt to solicit outside assistance.
At 10:03 a.m., several minutes before the decision to evacuate was made, Goodridge hailed Station Gloucester on radio channel 16. He was told to switch to channel 12, a frequency not being used by anyone on the scene. Goodridge stated that he was boarding a vessel at Cape Ann Marina, and asked if he should bring extra pumps or whether just diving assistance was necessary.
Station Gloucester responded that it “wasn‘t sure,” the situation was unstable, and it needed to keep “[the] frequency clear.”1 Goodridge interpreted this to mean that he shouldn‘t tie up the channel. He stated that he would be there “in a little bit,” and he got off the radio. Shortly thereafter, everyone was evacuated from the NORTHERN VOYAGER.
Goodridge said that he did not attempt to contact the 47-footer directly because he had “[b]een told twice to stay off the radio.” He didn‘t bother going to the station to talk to the captain because he assumed that, based on the Coast Guard reports, the boat was too far gone for him to take the necessary time.
According to plaintiffs’ expert, Goodridge was in a position to reach the NORTHERN VOYAGER by 10:50 a.m., well before it sank. Goodridge stated at his deposition that he had the skill and equipment necessary to dive under the NORTHERN VOYAGER and plug the hole formerly containing the rudder post, and the task would have taken him only a couple minutes.2 However, he needed to talk to somebody in the NORTHERN VOYAGER crew before making such an attempt in order to find out if the engines were running. Without this knowledge, it was too risky to dive near the propellers, as he would have had to do to plug the rudder tube.
C. Proceedings in the District Court
Northern Voyager, its insurers, and Thames Shipyard brought this action in the District of Massachusetts against the United States alleging that the sinking of the NORTHERN VOYAGER was due to the negligence of the Coast Guard. Plaintiffs’ primary contention was that the Coast Guard exceeded its authority by coercively compelling the NORTHERN VOYAGER‘s master to leave the vessel against his will. Plaintiffs further alleged that the Coast Guard negligently interfered with the efforts of Michael Goodridge, the commercial salvor, and also deprived the NORTHERN
The United States contended that the Coast Guard was legally authorized to issue the evacuation order by virtue of the broad search and rescue powers conferred upon the Coast Guard by Congress under
The district court concluded that the Coast Guard‘s decision to compel Haggerty and his crew to abandon the NORTHERN VOYAGER was protected by the discretionary function exception.
This appeal followed.
II.
The United States, as sovereign, is immune from suit except as it consents to be sued, and the terms of its consent define the federal courts’ jurisdiction over suits against the United States. United States v. Sherwood, 312 U.S. 584, 586 (1941). The Suits in Admiralty Act (“SAA“) waives sovereign immunity “[i]n cases where if such vessel were privately owned or operated . . . or if a private person or property were involved, a proceeding in admiralty could be maintained . . . ”
Both waiver provisions apply here. See Wilson v. United States, 23 F.3d 559, 561 (1st Cir. 1994) (“Both the [SAA] and the [PVA] apply where a plaintiff brings a ‘public-vessel-related suit in admiralty against the United States.‘“) (internal citation omitted). Although neither contains an express discretionary function exception, it has been implied into both. See Limar Shipping Ltd. v. United States, 324 F.3d 1, 6-7 & n.3 (1st Cir. 2003) (SAA); United States Fire Ins. Co. v. United States, 806 F.2d 1529, 1534-35 (11th Cir. 1986) (PVA) (reasoning that the “separation of powers” concerns that justify reading a discretionary function exception into the SAA warrant reading the same exception into the PVA, especially given the close relationship between the two statutes). We review de novo the lower court‘s determination that the Coast Guard‘s actions are protected by the discretionary function exception. See Wood v. United States, 290 F.3d 29, 36 (1st Cir. 2002).
A. The Discretionary Function Exception: the Standard Test
Where, as here, the government avers that it is immune from suit because the challenged conduct falls under the protection of the discretionary function exception, we must determine whether the disputed conduct involved the “permissible exercise of policy judgment.” Berkovitz, 486 U.S. at 539. In a series of cases, the Supreme Court has established an analytical framework for determining whether the conduct warrants discretionary function immunity.
The court must initially identify the conduct that allegedly caused the harm. United States v. Gaubert, 499 U.S. 315, 322 (1991). Then, to determine whether the exception applies, the court employs a two prong test. First, the court must
In addition, courts have read the Supreme Court‘s discretionary function cases as denying protection to actions that are unauthorized because they are unconstitutional, proscribed by statute, or exceed the scope of an official‘s authority. See, e.g., K. W. Thompson Tool Co. v. United States, 836 F.2d 721, 727 n.4 (1st Cir. 1988) (“It has been held that implicit in Varig and Dalehite is the proposition that a ‘decision cannot be shielded from liability if the decisionmaker is acting without actual authority.‘“) (quoting Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1196 (D.C. Cir. 1986)); Medina v. United States, 259 F.3d 220, 225 (4th Cir. 2001) (stating that “[f]ederal officials do not possess discretion to violate constitutional
B. The Decision to Forcibly Evacuate the NORTHERN VOYAGER.
Following this framework, we focus on the decision to forcibly evacuate the NORTHERN VOYAGER. Relying on Indian Towing Co. v. United States, 350 U.S. 61 (1955), and United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189 (1st Cir. 1967), appellants contend that the discretionary function exception applies to decisions whether or not to undertake a rescue mission but not to decisions made during the course of a rescue mission once undertaken. Appellants further contend that the Coast Guard‘s evacuation decision was not a policy decision. Finally, appellants argue that the government cannot seek refuge in the exception because the forcible evacuation was outside the scope of its statutorily-delegated authority and, indeed, violated legal and constitutional norms. We disagree.
1. Whether Indian Towing and Sandra & Dennis Fishing Corp. Preclude Application of the Discretionary Function Exception to the Decision at Issue.
Indian Towing involved a lawsuit alleging that the Coast Guard negligently failed to maintain a lighthouse, causing the loss of a ship. The Court held that the Coast Guard need not undertake to provide lighthouse service. Indian Towing, 350 U.S. at 69. However, having “exercised its discretion to operate [the] light . . . and engendered reliance on the guidance afforded by the light, [the Coast Guard] was obligated to use due care to make certain that the light was kept in working order.” Id.
Indian Towing is inapposite for two reasons. First, the discretionary function exception was not at issue because the government conceded that it did not apply. Id. at 64. Second, as this Court has interpreted the case, through the lens of later Supreme Court decisions, it illustrates a situation where there was no exercise of policy judgment but rather involved purely technical or scientific considerations. Ayer v. United States, 902 F.2d 1038, 1042 (1st Cir. 1990). Indeed, we have suggested that had a
In Sandra & Dennis Fishing Corp., a Coast Guard patrol boat took in tow a fishing vessel that was then in no immediate danger of sinking and, through negligence (human error), caused the vessel to strand on a shoal. This Court stated that the Coast Guard had no duty to provide rescue services on demand. Sandra & Dennis Fishing Corp., 372 F.2d at 195. However, we held that “if the Coast Guard accepts a mission it should conduct its share of the proceeding with acceptable seamanship.” Id. at 197.
There is no hint in Sandra & Dennis Fishing Corp. that the government attempted to rely on the discretionary function exception. Nor is there any reason to think that the negligent conduct upon which this Court affirmed liability (the failure to check with the loran on the towed vessel when the loran on the Coast Guard patrol boat went out) implicated protected policy concerns as opposed to mere technical, navigational missteps. Accordingly, neither Indian Towing nor Sandra & Dennis Fishing Corp. stand for the proposition that a Coast Guard determination made during the course of a mission may not be protected by the discretionary function exception in otherwise appropriate circumstances.
Indeed, to hold differently could be said to fly in the face of the Supreme Court‘s decision in Gaubert, 499 U.S. at 325-26, which rejects a distinction between initiation of programs and decisions made at an operational level. See also Varig Airlines, 467 U.S. at 813 (“[T]he basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee--whatever his or her rank--are of the nature and quality that Congress intended to shield from tort liability.“) Accordingly, we turn next to the familiar two-prong inquiry, supra p. 14-15, under Berkovitz and progeny. For the following reasons, we conclude that both prongs are met.
2. Application of the Two-Prong Inquiry.
First, the Coast Guard has statutorily-granted discretion to exercise its judgment in determining how it goes about search and rescue (“SAR“) operations. See
Second, the determination that the peril to the endangered seamen had reached such a level as to require a forced evacuation involved a true policy choice. This case does not fall within the “line of cases involving plaintiffs who challenge official judgments that implicate technical safety assessments conducted pursuant to prior choices.” Shansky v. United States, 164 F.3d 688, 694 (1st Cir. 1999). “Such decisions come within a category of objective professional judgments that, without more, are not readily amenable to policy analysis.” Id. Rather, it involved the balancing of incommensurable values -- such as human safety, protection of property, autonomy, and the allocation of resources -- typically associated with policy decisions.6 See id. at 695. The Coast Guard‘s manual sets forth a policy of giving priority to the saving of human lives over the saving of property. See infra p. 25. Applying such a policy in circumstances of danger such as these calls for an evaluation of multiple factors that is anything but purely technical and routine.
14 U.S.C. § 88 .
Finally, we turn to appellants’ contention that the discretionary function exception does not apply because the Coast Guard acted outside the scope of its statutorily-granted authority or in derogation of other constitutional and legal principles. This argument requires us to determine whether
Given the dearth of federal authority, we turn to state law and practice in analogous rescue situations for guidance.
In some states, there are statutes that expressly delegate to local safety officers the authority to order evacuations in an emergency. See, e.g.,
The Coast Guard is a governmental agency and has been granted by Congress a variety of public safety responsibilities and
We do not, however, accept that the phrase “any and all” gives the Coast Guard carte blanche authority to engage in forcible evacuations in less than life-threatening emergencies. A forcible evacuation from a private vessel constitutes a seizure of the person. Under the circumstances, the body of case law developed under the “emergency aid” exception to the Fourth Amendment‘s warrant requirement both lends support for evacuation authority and cabins it. That exception requires an objectively reasonable belief by safety officers that a true emergency exists and there is an immediate need for assistance or aid. See, e.g., McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 545 (1st Cir. 1996) (recognizing that “exigent circumstances” exceptions, by their nature, turn upon the objective reasonableness of ad hoc, fact-specific assessments); United States v. Richardson, 208 F.3d 626, 629 (7th Cir. 2000) (explaining that, “as is normally the case for Fourth Amendment inquiries, the test is objective“); Russoli v. Salisbury Township, 126 F. Supp. 2d 821, 846-59 (E.D. Penn. 2000) (suggesting without deciding that the emergency aid doctrine might justify a seizure, for the person‘s own good and the good of others, where safety officers reasonably believe that there is a life-threatening emergency).
In situations as the present, where we are satisfied that such a life-threatening emergency could reasonably be found to exist, infra p. 28, the Coast Guard possessed under
4. The Instant Scenario
The facts of this case lead us to conclude that the Coast Guard reacted rationally, and that human life could reasonably have been deemed to be at serious risk had Captain Haggerty and his crew not been removed. The NORTHERN VOYAGER, without steering, was rolling in six to eight foot ocean seas. Water was pouring in. She was developing an increasing port-side list. The fishing boat‘s only access port was on the starboard side. The Coast Guardsmen on the vessel reported progressive flooding, raising the possibility that the ship would capsize, trapping all on board. While arguments can perhaps be made in the light of 20-20 hindsight tending to minimize the potential dangers had the master and his
Under the circumstances (and in light of our conclusions above), we hold that (1) the discretionary function exception applies to the decision at issue; (2) the Coast Guard made a policy choice when it determined the time had come, in the interest of safety, to take the men off; (3) the Coast Guard acted within the broad rescue powers specified by Congress in
C. The Coast Guard‘s Conduct Vis-a-vis the Private Salvor.
Plaintiffs’ alternative argument is that evidence of Coast Guard alleged discouragement or interference with the efforts of Michael Goodridge, the commercial salvor, warrants a remand for a determination of liability. The government has never advanced any protected policy reasons, and we can think of none, to explain its conduct vis-a-vis the commercial salvor. Rather, to the extent that conscious decisions were made, rather than mistakes, oversights, or misstatements, the decisions appear to be ordinary professional judgments. Accordingly, we turn to the issue of liability.
Plaintiffs suggest that the Coast Guard was negligent in delaying the start of Goodridge‘s response, instructing Goodridge
1. The Good Samaritan Rule.
The parties agree that the standard of negligence in this context is the Good Samaritan rule “which makes one person liable to another for breach of a duty voluntarily assumed by affirmative conduct, even when that assumption of duty is gratuitous.” Good v. Ohio Edison Co., 149 F.3d 413, 420 (6th Cir. 1998) (quoting Patentas v. United States, 687 F.2d 707, 713-14 (3d Cir. 1982)). This doctrine is articulated in § 323 of the Second Restatement of Torts which provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the
protection of the other‘s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other‘s reliance upon the undertaking.
Restatement (Second) of Torts § 323.
A parallel rule in § 324A of the Second Restatement deals with liability to third persons:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A.
Under these provisions, Coast Guard liability based on negligence may be established provided it can be shown that the Coast Guard‘s negligence “increase[d] the risk” of harm. Plaintiffs “must show that the Coast Guard through affirmative actions caused some physical change to the environment or some other material alteration of circumstances.” Good, 149 F.3d at 421 (citations and internal quotation marks omitted). “Thus, ‘[t]he test is not whether the risk was increased over what it would have
Coast Guard liability may also be established in appropriate circumstances on a theory of induced “reasonable, justifiable” detrimental reliance. Myers, 17 F.3d at 904. The reliance must have caused another “to forgo other remedies or precautions against the risk.” Id. at 903 (quoting Restatement § 324A cmt. e). In the maritime context, detrimental reliance has been found where the “Coast Guard‘s actions caused potential rescuers to rest on their oars . . . in reliance on the Coast Guard‘s undertaking and its presumed, unless affirmatively disclaimed, competency.” Fondow v. United States, 112 F. Supp. 2d 119, 130 (D. Mass. 2000) (citations and internal quotation marks omitted).
A related principle, set forth in § 327 of the Second Restatement, is also relevant and has been applied in the maritime context. See Hood v. United States, 695 F. Supp. 237, 43-44 (E.D. La. 1988). Section 327 provides:
One who knows or has reason to know that a third person is giving or is ready to give to another aid necessary to prevent physical harm
to him, and negligently prevents or disables the third person from giving such aid, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third party from giving.
Restatement (Second) of Torts § 327.
Our decision in Sandra & Dennis Fishing Corp. is consistent with the Good Samaritan rule as articulated above. In Sandra & Dennis Fishing Corp., the Coast Guard clearly worsened the position of the towed vessel which, when taken in tow, was in no imminent peril. See Rodrigue v. United States, 968 F.2d 1430, 1434-35 (1st Cir. 1992) (observing that, in Sandra & Dennis Fishing Corp., “the district court made the significant finding that there would have no stranding but for the Coast Guard‘s misconduct“). Additionally, in Sandra & Dennis Fishing Corp., we emphasized that the Coast Guard had induced reliance upon a belief that it “would perform its functions with reasonable care.” 372 F.2d at 195; see also Daley v. United States, 499 F. Supp. 1005, 1010 n.6 (D. Mass. 1980) (Aldrich, J., sitting by designation) (explaining that this comment in Sandra & Dennis must be understood against a record which showed that the disabled vessel had refrained from seeking other available assistance).
More recently, this Court discussed “the Good Samaritan rule” in a case where parents of an airman who drowned after being carried out to sea by strong currents at a recreational beach sued the Air Force based on its four-hour delay after notification in
Finally, we note that in evaluating Coast Guard conduct under the Good Samaritan rule, courts must consider the Coast Guard‘s actions and decisions in light of the information known during the rescue and not with the benefit of hindsight. See Fondow, 112 F. Supp. 2d at 131 (citing cases). Accordingly, “conduct that might ordinarily be negligent may be non-negligent in the pressure cooker circumstances of a rescue.” Id.
2. The Standards Applied.
a. The Reliance Argument.
The evidence of detrimental reliance is insufficient as a matter of law to support a finding of Coast Guard liability, and, thus, by itself would not warrant a remand. In his sworn declaration, Captain Haggerty states that “[b]ecause the Coast Guard had told me that they were working on arranging commercial assistance, I did not make any calls on the radio.” However, he does not state exactly what the Coast Guard said or when. See
The only other evidence we have on this point is Haggerty‘s vague deposition testimony that he “asked Station Gloucester if there was anybody available, if there was any more pumps” and the response was “[w]e‘re working on that.” The Coast Guard‘s response, without more, falls short of a representation that the Coast Guard was working on obtaining commercial assistance.12 We do not think that a reasonable jury could find that Haggerty justifiably relied on the Coast Guard‘s vague response and reasonably refrained from making any efforts of his own to contact commercial assistance.
b. The Delay
Similarly, the evidence tending to suggest that the Coast Guard delayed Goodridge‘s departure by reason of its initial response discouraging his participation in the rescue operation is insufficient as a matter of law to warrant a remand. Goodridge‘s initial phone call to the Coast Guard was at 9:03 a.m. He was told they were going “to handle it.” But by 9:15 a.m., notwithstanding that response, he was on the telephone to Cape Ann Divers to see who might be available to assist him. In addition, some time during that period, Goodridge took time to load his truck before notifying the Coast Guard at 9:33 a.m. that he was on his way to
We add, moreover, that we see nothing wrong in the Coast Guard‘s response at 9:03 a.m. that they were going “to handle it.” Captain Haggerty had, in fact, called the Coast Guard; they were planning to go to the NORTHERN VOYAGER‘s assistance; and at 9:03 a.m. the Coast Guard had yet to be informed as to many of the
c. Alleged Interference With/Failure to Facilitate Communications Between Goodridge and the NORTHERN VOYAGER.
Plaintiffs have a stronger argument of Coast Guard interference with Goodridge‘s efforts based on Station Gloucester‘s misstatement to Goodridge at 10:03 a.m. that it “need[ed] to keep this frequency clear.” See note 1, supra. As noted, one who negligently prevents or disables a third person from giving aid necessary to prevent physical harm is subject to liability for that harm caused by the absence of the prevented aid. See Restatement (Second) of Torts § 327, supra p. 32.14 Here a fact-finder could determine that the Coast Guard‘s negative responses to Goodridge, after assuming control itself of the rescue operation, prevented or disabled Goodridge from giving aid that could have prevented the NORTHERN VOYAGER from sinking.
By 10:03 a.m., Coast Guard personnel had been told by the captain that the vessel “might, ah, dropped the rudder.” And in his 10:03 a.m. transmission to the Coast Guard, Goodridge indicated
In his deposition, Goodridge testified that the reason he did not later seek to radio the master of the NORTHERN VOYAGER, after the master had been evacuated to the Coast Guard‘s 47-footer, was that “he [had] been told twice to stay off the radio.” We think there is sufficient evidence for a reasonable fact-finder to find that the Coast Guard‘s rebuff at 10:03 a.m. discouraged Goodridge from further attempts to communicate with the Coast Guard or, directly, with the NORTHERN VOYAGER, as he motored to the scene. Had he done so, plans might have developed that would have led to saving the vessel. In particular, had Goodridge communicated with Captain Haggerty, or even a knowledgeable Coast Guard officer involved in the rescue operation, advance plans could
The Coast Guard‘s witness, Chief Warrant Officer Dittes, conceded that the information that Goodridge was coming was “a significant piece of information” and the sort “they would normally pass to the person that‘s in trouble.” Yet the Coast Guard did not advise the NORTHERN VOYAGER that Goodridge was on the way, much less did it note the fact that Goodridge had a diving capability which might be put to good use. Had Captain Haggerty been alerted that Goodridge was coming, and had he then communicated by radio with Goodridge, advance plans could have been laid for Goodridge to dive under the NORTHERN VOYAGER and plug the leak. There is evidence from which to infer that even if Goodridge arrived shortly after Haggerty had been removed from his sinking vessel, the dive might have been consummated had Haggerty prepared for it before leaving the NORTHERN VOYAGER. See note 15, supra.
We do not suggest the Coast Guard had an independent duty
A similar argument can be made based on Station Gloucester‘s unhelpful response to Goodridge on or about 10:47 a.m. when Goodridge contacted the station by radio hoping to get in touch with the captain. At this point, both Goodridge and the captain, who was by then on board the 47-foot Coast Guard vessel, were roughly one mile from the sinking NORTHERN VOYAGER. Station Gloucester first told Goodridge to call back by “land line” and, then, when Goodridge called by cellular phone, told him that he could speak to the captain back at the station. Captain Haggerty was not immediately informed of the call nor were efforts made to allow contact via the radio of the Coast Guard‘s vessel bearing Haggerty. A fact-finder could reasonably infer that the Coast Guard‘s response to Goodridge had the effect of interfering with the last opportunity to arrange for a dive. The only way in which Goodridge could have contacted the captain meaningfully once he was aboard the Coast Guard vessel would have been via the latter‘s radio. At 10:47 a.m., with both Goodridge and the captain not far from the scene, it remained possible that, had they spoken, Goodridge might still have taken effective measures to dive and
In sum, we think the evidence, viewed in the light most favorable to appellants, was such that a reasonable fact-finder could conclude that the Coast Guard had reason to know that a third party was ready to give aid of a potentially useful type that the Coast Guard could not provide, and that it negligently engaged in actions that tended to prevent or disable such person from giving such aid. Further, we think that a fact-finder could conclude from such evidence, viewed most favorably, that this negligence was a proximate cause of the sinking of the NORTHERN VOYAGER. Under the circumstances, a remand for further proceedings is warranted.
It is true that under the Good Samaritan rule the appellants have the burden of demonstrating that the Coast Guard increased the risk of the NORTHERN VOYAGER‘s sinking over what it would have been had there been no Coast Guard involvement at all. Arguably, appellants have not established that, absent the Coast Guard‘s pumping assistance, the NORTHERN VOYAGER would have stayed afloat for a sufficient time to permit Goodridge to reach it and effectively plug the leak, (i.e., that the loss of the NORTHERN VOYAGER could have been prevented by the private salvor, acting alone, had the Coast Guard not become involved). However, according to plaintiffs’ experts, there are various things that Captain Haggerty and his crew could have done to contain the
CONCLUSION
For the foregoing reasons, we affirm so much of the district court opinion as concluded that the Coast Guard‘s decision to forcibly evacuate the crew is protected by the discretionary function exception but remand for further proceedings on plaintiffs’ claim that Coast Guard interference with communications between the commercial salvor and NORTHERN VOYAGER resulted in the sinking of the ship.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with this opinion.
Opinion concurring in part and dissenting in part follows.
Notes
The pertinent part of
(a) In order to render aid to distressed persons, vessels, and aircraft on and under the high seas and on and under the waters over which the United States has jurisdiction and in order to render aid to persons and property imperiled by flood, the Coast Guard may:
(1) perform any and all acts necessary to rescue and aid persons and protect and save property;
(2) take charge of and protect all property saved from marine or aircraft disasters, or floods, at which the Coast Guard is present, until such property is claimed by persons legally authorized to receive it or until otherwise disposed of in accordance with law or applicable regulations, and care for bodies of those who may have perished in such catastrophes;
(3) furnish clothing, food, lodging, medicines, and other necessary supplies and services to persons succored by the Coast Guard; and
(4) destroy or tow into port sunken or floating dangers to navigation.
We have no doubts about the constitutionality of such authority. Courts have rejected due process challenges to summary action taken in an emergency situation, see, e.g., Hodel v. Virginia Surface Min. & Recl. Assn., 452 U.S. 264, 299-301 (1981) (upholding the constitutionality of an emergency procedure which allowed government inspectors to order the immediate cessation of mining activities), and have similarly rejected Fourth Amendment challenges to police action taken in response to a life-threatening emergency. See, e.g., Mincey v. Arizona, 437 U.S. 385, 392 (1978) (“Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.“) (internal footnotes omitted) (citing cases); see also Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963) (Burger, J.) (“The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.“).
See, e.g.,
It is a general principle of admiralty law that an owner of a vessel has a right to decline salvage assistance and that “a salvor who acts without the express or implied consent of the owner is a ‘gratuitous intermeddler’ who is not entitled to any salvage award.” 2 Thomas J. Schoenbaum, Admiralty & Maritime Law § 16-1 at 360-61 (3d ed. 2001). Interestingly, however, there is dicta in several cases limiting this principle to instances where only the owner‘s property interests are at stake. See, e.g., Smit Americas, Inc. v. M/T Mantinia, 259 F. Supp. 2d 118, 134 (D.P.R. 2003) (suggesting that an owner‘s right of refusal is limited in situations involving imminent danger of large losses of the property of third persons); Ramsey v. Pohatcong, 77 F. 996 (S.D.N.Y. 1896) (holding that tugboat was “bound to respect the master‘s decision [to refuse salvage assistance]” where case involved only ordinary property interests and “did not involve imminent danger to life, nor the danger of large losses of the property of third persons“); see also Martin J. Norris, The Law of Seaman, § 9:39 (4th ed. 2002) (“It is the privilege of the master to accept [proffered salvage services] or not, so long as the vessel in distress is then in a position where nothing but ordinary property interests are involved.“) (emphasis added). In all events, we need not pursue this suggestion further in light of our conclusion that the Coast Guard is not the equivalent of a commercial salvor.
In fact, depending upon when the Coast Guard‘s statement was made, a natural assumption is that it was talking about the Coast Guard cutter ADAK, which arrived late on the scene with additional pumps.
Our dissenting colleague suggests that, in addition to a twelve-minute delay of Goodridge‘s departure from Newburyport, the record supports a finding that the Coast Guard caused further delay once Goodridge arrived at his boat at Cape Ann Marina by its indefinite response to his query as to whether additional pumps were needed or just diving assistance. Appellants made no argument along these lines, and we are not persuaded. The transcript of the radio communication indicates the Coast Guard responded reasonably to Goodridge‘s inquiry by saying “we‘re not sure at this time.” Although the dissent suggests this indefinite response caused Goodridge to spend unnecessary extra time loading pumps on board his boat, we do not see how the Coast Guard can be faulted for its response, especially given record evidence that the Coast Guard‘s own pumps kept failing and the possibility that, even if diving assistance were successful, some additional pumping assistance might be required.
Although § 327 is arguably, by its terms, limited to physical harm to a person, it applies to claims involving property damage through the operation of Restatement (Second) of Torts § 497 (“The rules which determine negligence of conduct threatening harm to another‘s interest in the physical condition of land and chattels are the same as those which determine the negligence of conduct which threatens bodily harm.“).
In his affidavit, Captain Haggerty stated in pertinent part:
If Mr. Goodridge had been allowed to call me on the radio or by cellphone, I could have communicated with him and learned what he needed. If this had happened, I could have and would have shut off those engines, rigged a Jacobs ladder, and communicated this to him, even if we were nevertheless to be forced off the vessel thereafter.
Aff. of Captain Haggerty ¶ 8.
The current version of the Coast Guard Addendum to the United States National Search and Rescue Supplement provides that “SMC‘s [i.e., Search and Rescue Mission Coordinator‘s] must remain familiar with all SAR assistance resources within the SMC‘s [area of responsibility] . . . and shall direct those resources that the SMC believes are needed to the scene of a vessel in distress.” Coast Guard Addendum § 4.2.7.1. Commercial providers are an assistance resource. Id. at § 4.2.3.3. However, the National SAR manual and the Addendum do not define a standard of care owing to the public. See, e.g., In re American Oil Co., 417 F.2d 164, 170 (5th Cir. 1969); Daley, 499 F. Supp. at 1010.