Thames Shipyard & Repair Co. v. United States

United States Court of Appeals
For the First Circuit
Volume I of II
No. 02-1619
THAMES SHIPYARD AND REPAIR COMPANY,
Plaintiff in Cross Claim, Appellant,
v.
UNITED STATES,
Defendant, Appellee.
No. 02-1620
NORTHERN VOYAGER LIMITED PARTNERSHIP;
ONEBEACON AMERICA INSURANCE COMPANY f/k/a/
COMMERCIAL UNION INSURANCE COMPANY,
Plaintiffs, Appellants,
v.
UNITED STATES,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
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.
Stephen F. White, with whom Wright, Constable & Skeen LLP was
on brief, for amicus curiae C-Port, Incorporated.
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.
November 26, 2003
CAMPBELL, Senior Circuit Judge. Plaintiffs-appellants
Northern Voyager Limited Partnership ("Northern Voyager") and
OneBeacon America Insurance Company, along with cross claim
plaintiff-appellant Thames Shipyard and Repair Company ("Thames
Shipyard") appeal from the district court's award of summary
judgment in favor of defendant-appellee United States in an action
related to the 1997 sinking of the F/V NORTHERN VOYAGER ("NORTHERN
VOYAGER") in waters off Gloucester, Massachusetts. This Court
reviews de novo a district court's grant of summary judgment,
affirming the judgment only if there is no genuine issue of
material fact and if the appellee is entitled to judgment as a
matter of law. Yohe v. Nugent, 321 F.3d 35, 39 (1st Cir. 2003).
We recount the history of this case in the light most favorable to
the losing parties (the plaintiffs-appellants) and then address the
principal questions presented.
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
-3-
continued to rise, threatening to flood the boat's engine room. If
the engine room flooded, all of the NORTHERN VOYAGER's electrical
pumps and generators located inside would be rendered useless.
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
-4-
accumulation, the flooding continued and the NORTHERN VOYAGER began
to develop a port side list.
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.
-5-
Dittes and Conners refused to discuss any other options
for salvage aboard the NORTHERN VOYAGER, and, again, ordered
Haggerty and his men off the boat. According to Captain Haggerty,
Conners informed him that if he did not cooperate, the Coast Guard
would "subdue [him] physically" in order to take him off the
NORTHERN VOYAGER. All Coast Guard personnel and the remaining
NORTHERN VOYAGER officers were then transferred to the Coast Guard
47-footer.
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
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for independent salvage resources to reach the vessel, even if they
had to come from as far away as Boston.
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.
-7-
Himself a diver, Goodridge, who continued to monitor
developments over his radio, recognized that the "vessel was going
to need a diver to correct the problem." Accordingly, he began
loading up his truck. At 9:15 a.m., Goodridge placed a telephone
call to Cape Ann Divers to see if anyone was available to assist
him. At 9:33 a.m., he reported to Station Gloucester that he was
en route, with diving gear, and that his estimated time of arrival
was one hour.
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.
1
The comment about the need to keep the frequency clear was
conceded by the Coast Guard employee who made it to be a
misstatement. The Coast Guard employee said that it was a "bad
choice of words," that Goodridge's contact came at a time when she
needed to listen, and that what she should have done was to ask
Goodridge to "wait out."
-8-
At about 10:44 a.m., when Goodridge was about a mile from
the Northern Voyager, he contacted Station Gloucester by radio
hoping to establish contact with the captain. At that point,
Goodridge had just seen the 47-footer heading back with the crew.
Station Gloucester told him to call by "land line." When Goodridge
called back on his cellular phone, he was told that he could talk
to the captain when he arrived back at the station.
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.
2
Plaintiffs' expert stated that there were many available
objects, such as a lobster buoy or life jacket, that Goodridge
could have used to plug the hole and that this would have stopped,
or at least considerably reduced, the influx of sea water.
-9-
Captain Haggerty stated that he did not know any
commercial salvors in the Gloucester area and thought that the
Coast Guard was working on getting commercial assistance. At no
time before the captain was put ashore in Gloucester, however, did
he learn, nor was he told by the Coast Guard, that a salvor was
approaching with additional pumps and with dive gear.3 If the
captain had been in contact with Goodridge and had been made aware
of his concerns about the engine running, the captain would have
shut off the engines before evacuating, rigged a Jacobs ladder in
order to facilitate a possible return to the boat, and communicated
this information to Goodridge.
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
3
The record contains conflicting evidence on this point, but
we, of course, take the evidence in the light most favorable to the
losing party.
-10-
VOYAGER of other possible sources of assistance in its time of
peril.4
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 14 U.S.C. § 88 to "perform any and all acts
necessary to rescue and aid persons . . . " See note 7, infra. It
further argued that the decision to issue the order in these
circumstances was a decision protected under the discretionary
function exception. The United States moved for summary judgment
on the grounds that the suit was barred by the exception. In
respect to plaintiffs' arguments that the Coast Guard negligently
interfered with the commercial salvor's efforts, the United States
contended that these arguments failed under the "Good Samaritan"
doctrine requiring a would-be rescuer to have worsened the victim's
position.
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.
4
In addition, plaintiffs alleged various intentional torts
including trespass to chattels, conversion, breach of fiduciary
obligations, bailment, and intentional interference with
contractual and/or advantageous relations. Our discussion, infra,
concluding that the Coast Guard's evacuation decision is protected
by the discretionary function exception disposes of most of these
claims. We do not think that the alleged facts support a claim of
intentional interference with contractual or advantageous
relations.
-11-
Northern Voyager Ltd. P'ship v. Thames Shipyard & Repair Co., 214
F. Supp. 2d 47, 52 (D. Mass 2002). Though the court did not cite
to or evaluate the scope of 14 U.S.C. § 88, it did cite internal
government manuals as stating the need for broad discretion and
flexibility when conducting search and rescue operations. Id.Applying the discretionary function test articulated in Berkovitz
v. United States, 486 U.S. 531, 537 (1988), the court concluded
that (1) the Coast Guard has complete discretion over all search
and rescue procedures; and (2) the Coast Guard's decision to
evacuate the NORTHERN VOYAGER is the type of "policy based
discretion" protected by the exception. Id. at 51-52. Once it
concluded that plaintiffs' claims are barred by the discretionary
function exception, the court granted the United States' motion for
summary judgment.
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 . . ." 46 U.S.C. Appx.
-12-
§ 742. The Public Vessels Act ("PVA") allows recovery against the
United States for damages "caused by a public vessel of the United
States . . ."5 46 U.S.C. Appx. § 781.
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
5
The PVA embraces cases where injury is caused by the crew of
a public vessel and not by the vessel itself. See Coumou v. United
States, 107 F.3d 290, 294 n.9 (5th Cir.), modified, 114 F.3d 64(5th Cir. 1997); Harrington v. United States, 748 F. Supp. 919, 929
(D.P.R. 1990).
-13-
The purpose of the discretionary function exception is to
insulate certain governmental actions and decisions based on
considerations of public policy from tort liability by private
individuals. Berkovitz, 486 U.S. at 536-37. The exception is
intended to preclude "judicial 'second-guessing' of legislative and
administrative decisions grounded in social, economic, and
political policy." Limar Shipping, 324 F.3d at 6 (quoting United
States v. S.A. Empresa de Viacao Aearea Rio Grandense (Varig
Airlines), 467 U.S. 797, 814 (1984)). Thus, the discretionary
function exception "insulates the Government from liability if the
action challenged in the case involves the permissible exercise of
policy judgment." Berkovitz, 486 U.S. at 537.
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
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determine whether the challenged conduct involves an element of
judgment, meaning that it is "a matter of choice for the acting
employee." Berkovitz, 486 U.S. at 536. This Court has declared
that conduct is non-discretionary "if a federal statute,
regulation, or policy specifically instructed federal officials to
follow a specified course of action." Muniz-Rivera v. United
States, 326 F.3d 8, 15 (1st Cir.), cert. denied, 2003 WL 21692180(U.S. Oct. 6, 2003) (No. 03-25). Second, the court "must determine
whether that judgment is of the kind that the discretionary
function was designed to shield," meaning that it involved
"governmental actions and decisions based on considerations of
public policy." Berkovitz, 486 U.S. at 536-37.
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
-15-
rights or federal statutes") (quoting United States Fid. & Guar.
Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988)); Nurse v.
United States, 226 F.3d 996, 1002 (9th Cir. 2000) ("[G]overnmental
conduct cannot be discretionary if it violates a legal mandate.");
Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252,
1261 (2d Cir. 1975) ("It is, of course, a tautology that a federal
official cannot have discretion to behave unconstitutionally or
outside the scope of his delegated authority.").
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
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Discretionary Function Exception to the
Decision at Issue.
We begin by addressing plaintiffs' argument based on
Indian Towing and Sandra & Dennis Fishing Corp. For the following
reasons, we do not think that these cases support plaintiffs'
argument that the discretionary function exception is inapplicable
to decisions made during the course of a rescue mission to the
extent those decisions implicate protected policy concerns.
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
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policy-based reason for failing to maintain the lighthouse been
articulated, the result might have been different. See id.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-
-18-
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 14 U.S.C. § 88 (providing that
the Coast Guard may perform any and all acts necessary to rescue
and aid persons and property). Further, internal manuals recognize
the discretionary nature of decisions made during the course of SAR
operations. The National Search and Rescue Manual notes that
"[b]ecause of the many variables encountered during SAR operations
and the individuality of each SAR case, the guidance provided in
this Manual must be tempered with sound judgment, having due regard
for the individual situation." 1 Joint Chiefs of Staff & U.S.
Coast Guard, National Search and Rescue Manual v, § 3.a (1991). The
Coast Guard Addendum to this manual provides that "Coast Guard
personnel are expected to exercise broad discretion in performing
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the functions discussed." U.S. Coast Guard, Coast Guard Addendum
to the National Search and Rescue Manual at 2.
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.
6
The last factor (allocation of resources) comes into play
especially because, despite appellants' suggestion to the contrary,
the Coast Guard, once on the scene, would have been hard pressed
simply to abandon the imperilled seamen. If the ship had capsized,
trapping the men inside or putting them overboard, the Coast Guard
would have been faced with a riskier, more costly rescue operation
that might have endangered the lives of Coast Guard personnel
seeking to rescue those members of the NORTHERN VOYAGER's crew who
had elected to remain on board.
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3. The Scope of 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 14 U.S.C. § 88,
which provides inter alia that the Coast Guard may perform "any and
all acts necessary to rescue and aid persons and protect and save
property," permits the Coast Guard, when it deems such action
necessary to protect lives, to compel an unwilling master to
evacuate his vessel.7 This is a novel question in that, while
similar events may have arisen in the past, no federal cases
7
The pertinent part of § 88 provides in full:
(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.
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interpreting the Coast Guard's powers in this regard appear to
exist in the law books, nor have any specific regulations been
promulgated on the subject by the Coast Guard. Moreover, the
legislative history of § 88 does not address this particular
issue.8 On the one hand, the statute's literal language
(empowering the Coast Guard to "perform any and all acts necessary
to rescue and aid persons . . . ") can be said literally to
encompass such action. On the other, in our democratic society the
circumstances are limited in which governmental officials may
legally compel people, against their will, to abandon their homes
or other private property. If it were unconstitutional or contrary
to clear law for the Coast Guard to rescue unwilling mariners in
life-threatening situations, we would be loath to read such
authority into § 88.
Given the dearth of federal authority, we turn to state
law and practice in analogous rescue situations for guidance.
8
Section 88 was added to Title 14 in 1949. See Act of Aug. 4,
1949, c. 393, 63 Stat. 501. The Senate Report that accompanied the
legislation explains that previous "statutes were enacted over a
period of a century and cover[ed], in some cases, only limited
geographical areas, and in other cases only limited types of
assistance work," and that "section 88 authorizes the Coast Guard,
in the broadest possible terms without limitation as to method or
place, to save lives and property." S. Rep. No. 81-656, at 5
(1949), reprinted in 1949 U.S. Code & Cong. Serv. 1652, 1656. This
history suggests that the phrase "any and all acts" defines the
scope of Coast Guard authority and, is not, as plaintiffs contend,
merely an implementary provision. Further, it is plain that
Congress intended the scope of this power to be broad.
Nonetheless, nothing in the legislative history specifically
addresses the power to order forcible evacuation.
-22-
Almost every state in the United States has adopted statutes
providing for the exercise of police powers in the event of an
emergency or disaster (such as fire, flood, tornado, hurricane,
etc.) See Howard D. Swanson, The Delicate Art of Practicing
Municipal Law Under Conditions of Hell and High Water, 76 N.D.L.
Rev. 487, 490-93 & n.10 (2000) (citing statutes). Most of the
state statutory schemes provide that the governor of the state has
the ability to declare an emergency. See id. at 490. "Further,
most of the states also allow the exercise of emergency or disaster
authority by a local government." Id. One of the most common
forms of authority exercised in an emergency is the mandatory
evacuation of buildings, streets, neighborhoods, and cities. Id.
at 495, see also David G. Tucker & Alfred O. Bragg, III, Florida's
Law of Storms: Emergency Management, Local Government, and the
Police Power, 30 Stetson L. Rev. 837, 838 (Winter 2001) ("Local
decision-makers may be called upon to order evacuations or prevent
people from returning to damaged houses.").
In some states, there are statutes that expressly
delegate to local safety officers the authority to order
evacuations in an emergency. See, e.g., Alaska Stat.
§ 18.70.075(a)(2) (providing that a fire officer has the authority
to "order a person to leave a building or place in the vicinity of
a fire or emergency, for the purpose of protecting the person from
injury"); Conn. Gen. Stat. § 7-313b (similar); Del. Code Ann. tit.
-23-
16, § 6701A(2) (similar); N.H. Rev. St. Ann. § 154:7 (similar);
Tenn. Code Ann. § 6-21-703 (similar); W. Va. Code § 29-3A-1
(similar). In other states, where the issue is not expressly
addressed in any statute, the authority of a safety officer to
order an evacuation has been inferred from a statute delegating
general authority "to preserve the public peace." See, e.g., Ohio
Op. Atty. Gen. No. 87-099 (reasoning in this way and opining that
a sheriff "may order the evacuation of persons residing . . . in
the vicinity of a hazardous materials accident or emergency, when
reasonably necessary for the protection of the health, safety, and
well-being of such persons" and "may, in a reasonable manner,
remove to a safe area any persons who refuse to evacuate
voluntarily").9
The Coast Guard is a governmental agency and has been
granted by Congress a variety of public safety responsibilities and
9
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.").
-24-
powers, including, of course, the specific power under discussion
to rescue and aid persons and property.10 In exercising its rescue
powers, it construes its own role as giving priority to the saving
of lives over the saving of property. See U. S. Coast Guard, Boat
Crew Seamanship Manual at 18-92. In circumstances such as the
present, Coast Guard operations are relevantly different from the
situation in which a private vessel or a commercial salvor comes to
the aid of a distressed vessel.11 Under the circumstances, we think
10
See, e.g., 14 U.S.C. § 2 ("Primary Duties") (stating, inter
alia, that the Coast Guard "shall administer laws and promulgate
and enforce regulations for the promotion of safety of life and
property on and under the high seas and waters subject to the
jurisdiction of the United States covering all matters not
specifically delegated by law to some other executive department"
and "shall develop, establish, maintain, and operate, with due
regard to the requirements of national defense, aids to maritime
navigation, icebreaking facilities, and rescue facilities for the
promotion of safety on, under, and over the high seas and waters
subject to the jurisdiction of the United States").
11
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
-25-
it reasonable to assume that Congress, in granting the Coast Guard
the broad authority to undertake "any and all acts necessary to
rescue and aid persons and protect and save property," intended to
confer powers analogous to those commonly possessed by state public
safety officials, namely, the power to rescue a person even against
his will in life-threatening circumstances.
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.
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.
-26-
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 § 88 the
discretionary authority to order (or not order) a forced
evacuation. Within the scope of that discretionary authority, we
hold that the Coast Guard could not be held liable for the
consequences of its decision.
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
-27-
fellows been allowed to remain, we see no basis to doubt the
objective reasonableness of the Coast Guard's on the scene decision
to remove them.
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 § 88; and (4) the
Coast Guard was not guilty of violating rights applicable in more
ordinary circumstances (i.e. where the threat to life was less).
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
-28-
to stay off the radio, and suppressing effective communication with
him. Plaintiffs also suggest that Captain Haggerty detrimentally
relied on the Coast Guard's assurance that it was working on
getting commercial assistance, and, as a result, did not make
independent radio calls of his own for such commercial assistance.
Although we are unpersuaded by plaintiffs' arguments based on
allegations of delay and reliance, we find sufficient evidence in
the record to create a factual issue on the question whether the
Coast Guard's interference with the commercial salvor's
communications prevented Goodridge from pursuing salvage efforts
and using his diving capacity to find and plug the leak. We
explain, beginning with the relevant standard of negligence and
then applying it to the facts of this case.
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
-29-
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
-30-
been if the defendant had not been negligent,' but rather whether
'[t]he risk [wa]s increased over what it would have been had the
defendant not engaged in the undertaking at all.'" Id. (quoting
Myers v. United States, 17 F.3d 890, 903 (6th Cir. 1994)); see also
Sagan v. United States, 342 F.3d 493, 498 (6th Cir. 2003) (quoting
Myers).
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
-31-
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
-32-
sending a rescue helicopter. See Rodrigue, 968 F.2d at 1434-35.
We emphasized that the plaintiffs could not state a case simply by
alleging that the Air Force was negligent. See id. at 1435.
Rather, it was necessary to show, more likely than not, that by its
negligence the Air Force had worsened the airman's position. Id.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 Fed.
R. Civ. P. 56(e) (requiring affidavits to set forth "specific facts
showing that there is a genuine issue for trial").
-33-
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
12
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.
-34-
assist. Viewing the evidence in the light most favorable to
plaintiffs, the delay was, at most, twelve minutes. We do not
think a reasonable jury could find that this brief delay was
material. Plaintiffs' expert opined that Goodridge's boat was in
a position to reach the NORTHERN VOYAGER on or about 10:50 a.m.
Even if Goodridge had arrived at the vessel roughly twelve minutes
earlier than expected, at 10:38 a.m., it would have been after the
evacuation. Indeed, by 10:38 a.m. the Coast Guard 47-footer was
already en route to Station Gloucester with the Northern Voyager
crew on board.13
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
13
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.
-35-
details that might have indicated a need for Goodridge's additional
assistance.
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
14
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.").
-36-
both that he was on his way and could offer diving assistance.
Diving capability, given the character of the leak -- an open
rudder tube allowing a pathway for the sea water to enter the ship
-- could be found to have been just what the NORTHERN VOYAGER
needed. The record contains expert testimony that such a leak
could be contained by a diver's inserting of objects like a life
preserver or lobster buoy into the opening. Goodridge testified he
had the equipment and skill to have plugged the rudder leak in a
matter of minutes. Yet the Coast Guard's only response was to tell
Goodridge to clear the air waves.
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
-37-
have been discussed for Goodridge to dive under the NORTHERN
VOYAGER while it was still afloat.15
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.15
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.
-38-
We do not suggest the Coast Guard had an independent duty
of its own to provide a commercial diver.16 Even if it exercised
poor judgment in not doing so, it would not be civilly liable
unless its negligence worsened the situation over what it would
have been had the Coast Guard not come to the aid of the NORTHERN
VOYAGER. But its announcement to Goodridge that it was "handling"
the rescue operation and its later insistence when Goodridge called
that he keep the frequency clear, coupled with its failure to tell
Captain Haggerty about Goodridge, could be found to have
discouraged Goodridge from further attempts to communicate and so
to assist the NORTHERN VOYAGER. The Coast Guard had a duty not to
throw roadblocks in the path of Goodridge's independent efforts to
help. A fact-finder might find that by announcing it was handling
the rescue, and then that it needed to keep the frequency clear,
the Coast Guard in effect declared exclusive control over rescue-
related communications, leading Goodridge to forgo further efforts
either to call the NORTHERN VOYAGER directly or to discuss salvage
options with Coast Guard officers handling the rescue.
16
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.
-39-
The Coast Guard's comment about the need to keep the
frequency clear came at a critical time when the decision whether
to evacuate was under consideration. If Goodridge had not been
discouraged from further contact at this time, before the
evacuation, there is evidence suggesting the outcome could have
been different. Had Captain Haggerty spoken to Goodridge or even
been told by the Coast Guard he was on the way with a diver, he
could have notified Goodridge that he wished his assistance. By
itself, such an expression would likely have caused Goodridge to
have increased and prolonged his efforts to reach and assist the
sinking vessel. Further, communication could have allowed
Goodridge to arrange with Captain Haggerty to dive under the
vessel. Even if the Coast Guard still believed that safety
considerations required Haggerty to leave the vessel before
Goodridge could reach it, the captain stated in his affidavit that
he could have taken steps to facilitate a dive before leaving by,
for example, making sure to shut off the engines (and to assure
Goodridge of the fact), and rigging a Jacobs ladder in order to
facilitate a possible return to the vessel. Thus, a fact-finder
could determine that even without Haggerty on board, a dive to plug
the leak could have been arranged. Indeed, the record supports a
possible inference that the first step, alone, would have been
sufficient, and that if Goodridge had been engaged by Haggerty and
had then simply been assured that the main engines were turned off,
-40-
he would have been willing to dive under the vessel and seek to
plug the rudder tube, thereby checking the influx of water and
quite possibly stabilizing the situation so as to permit further
salvage efforts that would have ultimately saved the vessel.
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
-41-
plug the leak. Or, at least, the record suffices to raise a
factual issue on this point.
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
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flooding temporarily and stabilize the situation, such as closing
certain doors and making them watertight. While there is little or
no evidence in the record that the captain and his crew actually
did or thought of any of these things at the time of the emergency,
there was evidence to suggest that at least one of the doors was
not shut because of the presence of the hose of a Coast Guard pump.
While the evidence is perhaps minimal that the ship would have
survived until Goodridge could have saved it without help from the
Coast Guard's pumps, we find it sufficient, viewed in the light
most favorable to appellants, to establish a factual issue and
warrant a trial on the question of whether the Coast Guard worsened
the plight of the NORTHERN VOYAGER by its negative handling of
Goodridge's attempts to become involved by radio.
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.
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