Professional Documents
Culture Documents
United States Court of Appeals: Unpublished
United States Court of Appeals: Unpublished
No. 01-1680
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.
COUNSEL
ARGUED: Debra Joan Kossow, Senior Admiralty Counsel, Torts
Branch, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Gedney Main Howe, III,
LAW OFFICES OF GEDNEY M. HOWE, III, P.A., Charleston,
South Carolina, for Appellees. ON BRIEF: Robert D. McCallum, Jr.,
Assistant Attorney General, Scott N. Schools, United States Attorney,
Michelle T. Delemarre, Trial Attorney, Torts Branch, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellant. Dennis J. Rhoad, Charleston, South Carolina, for
Appellees.
OPINION
BLAKE, District Judge:
In the early morning hours of December 29, 1997, the S/V MORNING DEW sank after colliding with the north jetty leading into the
Charleston Harbor. None of the passengers onboard the thirty-four
foot sailboat survived. Their personal representatives brought suit
against the United States Coast Guard under, inter alia, the Suits in
Admiralty Act, 48 U.S.C. 741-752. Following a bench trial, the
district court entered judgment in favor of the plaintiffs. For the reasons stated below, we affirm the judgment of the district court.
I.
On December 26, 1997, Michael Wayne Cornett, his two teenaged
sons, Michael Paul Cornett and James Daniel Cornett, and a cousin,
Bobby Lee Hurd, set sail in the MORNING DEW from Little River,
South Carolina to Jacksonville, Florida. (J.A. 46-47.) Though intending to travel along the Intracoastal Waterway ("ICW"), they inadver-
tently entered the open sea. (Id. at 47.) At approximately 2:17 a.m. on
December 29, 1997, the MORNING DEW struck the north jetty leading into the Charleston Harbor. (Id.) There were no eyewitnesses to
the accident and no survivors. (J.A. 47-48.)
From the evidence adduced at trial, the district court found it likely
that Mr. Cornett, who was probably steering the boat at the time of
the collision, was thrown overboard on impact and drowned shortly
thereafter. (J.A. 76.) At approximately 2:18 a.m., James Daniel Cornett, the youngest of the children onboard the vessel, sent out a Mayday call on the international maritime distress and hailing frequency,
stating, "Mayd . . . Mayday, U.S. Coast Guard, come in." (J.A. 697.)
The call was received by Petty Officer Shelley, the watchstander on
duty at the United States Coast Guard Charleston Operations Center.1
(J.A. at 54-55.) Shelley immediately attempted to make contact with
the caller, but was unsuccessful. (Id.) Four minutes later, another call
from a similar voice was received. (Id.) Again, Shelley tried unsuccessfully to contact the caller. (Id.) Shelley did not log in the calls,
nor did he inform his supervisor of the Mayday calls until after the
boys bodies were found. (Id.)
At approximately 6:10 a.m., Gerald Lucas of the Charleston Harbor
Pilots Association was piloting the M/V PEARL ACE when he was
told that a boatswain onboard had heard someone screaming for help
off the starboard side near buoy 22. (J.A. 128-29, 703-04.) Mr. Lucas
reported this information to the Pilots Office, which contacted the
Charleston Coast Guard Operations Center. (J.A. 129, 699, 703.)
Petty Officer Shelley received the call. (Id. at 699.) The Pilots Office
told Shelley someone was heard yelling for help in the waters near
buoy 22, and a pilot boat was returning to the area to search.2 (Id.,
1
J.A. 298.) Shelley confirmed the location of the distress and the number of boats going back to search, and requested a call back with
whatever information was found. (Id.) After fully briefing Operations
[Ringing]
Shelley: Coast Guard Communications, this is Petty Officer
Shelley speaking.
Pilots Office: Hey good morning, this is the Pilot Office.
Shelley: Yes.
Pilots Office: How are you doing?
Shelley: Pretty good, how about yourself?
Pilots Office: Ok. Um, we got a pilot inbound, um, on a car carrier and he just passed 22 buoy, you know right inside the harbor.
Shelley: Uh huh, twenty, uh.
Pilots Office: Twenty Two.
Shelley: Two. Ok.
Pilots Office: And, uh, the boatswain on ship radioed to the
bridge that he heard somebody yelling for help and the pilot
boats have gone, the pilot boat was here at the dock, theyve
gone back out to look around, but the pilot wanted me to call you
to let you know what was going on, like I said, weve got the
pilot boat out there looking for somebody now.
Shelley: They werent able to talk to them any.
Pilots Office: Well no, it was somebody in the water.
Shelley: Oh, somebody in the water.
Pilots Office: Yeah, thats what they think.
Shelley: Oh, I see.
Pilots Office: Um, so the pilot boat, they were just getting up
here to the dock but they turned around and went back out to 22
to look around, what theyre going to find I dont know.
Shelley: Ok, how many, which pilot boat went out there?
Pilots Office: Carolina, excuse me, wait a minute. We had problems with the boats last night. Palmetto State.
The trial judge found that the Coast Guard could not have saved Mr.
Cornett because he was probably thrown overboard and drowned when
the MORNING DEW hit the jetty. Plaintiffs were not, therefore,
awarded damages for the death of Michael Paul Cornett. (J.A. 53, 76.)
II.
The Coast Guard is authorized to "perform any and all acts necessary to rescue and aid persons and protect and save property." 14
U.S.C. 88(a)(1). The statute does not, however, impose an affirmative obligation on the Coast Guard to undertake the rescue of persons
in distress. Kelly v. United States, 531 F.2d 1144, 1147-48 (2nd Cir.
1976); United States v. Sandra & Dennis Fishing Corp., 372 F.2d
189, 195 (1st Cir. 1967); Albinder v. United States, 703 F.Supp. 246,
247 (S.D.N.Y. 1987); Wright v. United States, 700 F. Supp. 490, 494
(N.D. Cal. 1988); Daley v. United States, 499 F.Supp. 1005, 1009 (D.
Mass. 1980). Whether there has been an attempt to render aid is a
question of fact in each case. Furka v. Great Lakes Dredge & Dock
Co., 755 F.2d 1085, 1088 (4th Cir. 1985) (Furka I). We review a district courts findings of fact for clear error pursuant to F.R.C.P. 52(a).
See Scrimgeour v. Internal Revenue, 149 F.3d 318, 324 (4th Cir.
1998). A finding is clearly erroneous if "the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. (citing United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)). "Where there are two permissible views of the evidence, the factfinders choice between them
cannot be clearly erroneous." Id. (quoting Zfass v. C.I.R., 118 F.3d
184, 188 (4th Cir. 1997)).
The United States first contends that the district court clearly erred
in concluding that the Coast Guard attempted to aid plaintiffs decedents. We disagree. The trial court found that the Coast Guard
attempted to aid the MORNING DEW by using the pilot boat returning to buoy 22 as a search asset. (J.A. 63, 65, 97.) This conclusion
is amply supported by the record. The Coast Guard received a report
from a professional mariner that someone was heard yelling for help
in the water near buoy 22. (J.A. 194, 298, 303, 657, 699.) Pursuant
to the U.S. Coast Guard Search and Rescue Manual, the Coast Guard
may use private resources in the course of rendering aid to mariners
in danger.4 (See J.A. 749, U.S. Coast Guard Addendum to the
4
The U.S. Coast Guard Addendum to the National SAR Manual, Section 3.B.5.a, provides that an "immediate response will be initiated, if
feasible, to any known situation in which the mariner is in imminent dan-
in which it was conducted. Id. at 1007. After noting that the Coast
Guard could not be held liable even for an unreasonable delay
because it had no affirmative duty to initiate a search, the Daley court
considered whether sending out a PRECOM committed the Coast
Guard to a duty of reasonable care. Id. at 1009. The court, in concluding that the institution of a PRECOM does not amount to an attempt
to render aid (and does not, therefore, trigger a duty of due care),
stated:
The purpose of the PRECOM is to assist in determining
whether to do anything further. Absent some promise or
affirmative representation, of which there was none here,
instituting a PRECOM commits the Coast Guard to nothing.
Failure to follow it up is not comparable to abandoning a
search that is already underway.
Id.
In this case, the trial court found that, unlike the Coast Guard in
Daley, Sass and Shelley were past the information gathering stage
after the first call from the pilot boat. This conclusion is not clearly
erroneous, since Officers Sass and Shelley had specific reason to
believe someone was in danger (given the report of a professional
mariner that someone was heard yelling for help in the water), and
they knew precisely where that danger was located (near buoy 22).5
By comparison, the Coast Guard officers in Daley had only the nonspecific information that the missing boaters had failed to return
before dark when they instituted the PRECOM. They did not initiate
a search until they actually had specific reason to believe someone
might be in danger. Daley, 499 F. Supp. at 1007-08; see also Mazzullo v. United States, 1980 AMC 1038 (D.D.C. 1980) (Coast Guard
officers did not begin searching because, though they knew someone
was in danger, they did not know precisely where).6 Accordingly, the
5
Plaintiffs expert, Captain Dein, testified at trial that in his professional opinion the case had already passed the PRECOM stage after the
Coast Guard received the first call from the Pilots Office. (J.A. 482-83.)
6
The United States also relies upon McLaughlin v. United States, 671
F. Supp. 72 (D. Me. 1987), to support its contention that the district court
clearly erred in finding that the Coast Guard attempted to render aid.
McLaughlin, however, is distinguishable because the plaintiff there only
alleged that the Coast Guard had negligently failed to initiate a search
which, the court found, it had no duty to do.
10
district court was not clearly erroneous in finding that the Coast
Guard endeavored to aid the passengers of the MORNING DEW
through use of the pilot boat as a search asset.
III.
We next address the Governments contention that the trial judge
applied the wrong standard of care. Whether the appropriate standard
of care has been applied is a question of law subject to de novo
review. Catalina Cruises, Inc. v. Luna, 137 F.3d 1422, 1425 (9th Cir.
1998); Theriot v. United States, 245 F.3d 388, 394-95 (5th Cir. 1998);
Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603, 606 (1st Cir. 1996).
The trial court held that the Coast Guard would be subject to liability
either for reckless or wanton conduct, or for negligence that worsened
the position of the decedents. (J.A. 95-96). See Berg v. Chevron
U.S.A., Inc., 759 F.2d 1425, 1430 (9th Cir. 1985); Furka I, 755 F.2d
at 1088; Korpi v. United States, 961 F. Supp. 1335, 1347 (N.D. Cal.
1997). The United States argues that the Coast Guard cannot be held
liable for wanton and reckless conduct alone; rather, liability should
ensue only if its conduct also worsened the decedents positions.
Since we agree with the trial judges conclusions that the Coast
Guards conduct was wanton and reckless and that such conduct
worsened the decedents position, we need not resolve any dispute
about the applicable standard in this particular case.7
7
11
IV.
We now turn to the district courts determinations that the actions
of the Coast Guard were wanton and reckless, and worsened the positions of the children on the MORNING DEW. Whether a rescuers
conduct is wanton and reckless, and whether such conduct has worsened a victims position, are questions of fact which must be reviewed
for clear error.
As the district court properly noted, wanton and reckless conduct,
also described as gross negligence, is a failure to use even a slight
degree of care. (J.A. 96.) See Martin J. Norris, The Law of Maritime
Personal Injuries 9.4 (4th ed. 1990). The district courts conclusion
that Officer Sass termination of the search before sunrise was "the
exercise of no care at all to whoever was in the water" (J.A. 97) is
adequately supported by the evidence. The Coast Guard had a report
from a professional mariner that someone was heard yelling for help,
and they were aware that the pilot boat had searched the relevant area
before dawn with negative results. Officer Sass, knowing that someone in the water would be in danger of serious bodily injury or death,
made the decision to do nothing further without "ask[ing] any amplifying questions regarding search conditions, area searched, [or] visibility." (J.A. 203, 208, 727.) Although within his authority to do so,
he also did not dispatch a vessel or instruct the pilot boat "to double
check the area after sunrise." (J.A. 206-07, 727.) Coast Guard Commander William Lee, the Chief of the Search and Rescue Branch for
(b) the harm is suffered because of the others reliance upon
the undertaking.
Restatement (Second) of Torts 323 (1965); see Patentas v. United
States, 687 F.2d 707, 714-15 (3d Cir. 1982). The Fifth Circuit described
liability for negligent salvage as "limited to situations in which the salvor, through want of due care, has worsened the position of the victim."
Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011, 1021
(5th Cir. 1969). This opinion was cited with approval in Furka I, 755
F.2d at 1089; see also Furka v. Great Lakes Dredge and Dock Company,
824 F.2d 330, 332 (4th Cir. 1987) (Furka II). Any argument about
whether Furka I and II clearly exclude application of the Grigsby standard to a maritime salvage case need not be addressed in this opinion.
12
the Fifth Coast Guard District and Atlantic Area,8 specifically concluded in his report on the MORNING DEW case that "the search
should not have been allowed to terminate before first light." (J.A.
732) (emphasis in original). Richard Dein, the plaintiffs expert, testified that Sass should have done the exact opposite of what he did, and
characterized Sasss decision to stop searching as the exercise of no
care at all to the decedents. (J.A. 512-13, 520.) The Governments
own expert, Admiral Peschel, conceded the latter point in his deposition. (J.A. 587.) Thus, we cannot conclude that the district court committed clear error in finding that the Coast Guards conduct was
wanton and reckless.
There are two ways in which a rescuer can worsen the position of
the subject of the rescue. The first is by increasing the risk of harm
to the person in distress. Restatement (Second) of Torts 323(a); see
also Daley, 499 F. Supp. at 1010 (citing Sandra & Dennis Fishing
Corp., 372 F.2d at 195 (Coast Guard worsened position when it towed
an otherwise safe fishing vessel onto a shoal where it sank)). The second is to induce reliance, either by the subject or other potential rescuers, on the rescuers efforts. Restatement 323(b); see also United
States v. DeVane, 306 F.2d 182, 186 (5th Cir. 1962); United States
v. Gavagan, 280 F.2d 319, 328-29 (5th Cir. 1960); Fondow v. United
States, 112 F. Supp.2d 119, 130 (D. Mass. 2000); Daley, 499 F.Supp.
at 1010 (quoting Lacey v. United States, 98 F. Supp. 219, 220 (D.
Mass. 1951)). The trial court concluded that the Coast Guards actions
worsened the childrens position in the second manner, i.e. "by inducing the Pilots association to cease their efforts in the belief that the
Coast Guard had the situation in hand." (J.A. 99.)
The trial courts determination is fully supported by the evidence
adduced at trial. The Coast Guard holds itself out to the public as
expert in maritime search and rescue. (J.A. 690.) It is, therefore, reasonable for others to perceive members of the Coast Guard as experts
if they do not affirmatively disclaim competency in a particular case.
See Daley, 499 F. Supp. at 1010 (citing DeVane, 306 F.2d 182). Pilot
Lucas, based on the conversations between the Pilots Office and the
8
Commander Lee was the Chief of the Coast Guards Atlantic Area
Command Center when he prepared the report on the MORNING DEW.
(J.A. 326.)
13
Coast Guard that he was made aware of that night, and his prior experience with the Coast Guard, testified that he expected the Coast
Guard to launch a search boat. (J.A. 132-133.) Retired Admiral Sanders, plaintiffs expert at trial, testified that in his professional experience he had not encountered cases where the Coast Guard had chosen
not to respond, thereby validating the reasonableness of Lucass
expectation. (J.A. 691-92.) Lucas also stated that the pilot boat discontinued its search efforts because the pilots thought the Coast
Guard was going to launch a boat. (J.A. 133, 142.) The president of
the Charleston Harbor Pilots Association, Whitmarsh Smith, confirmed that the pilot boat would have done more had it known the
Coast Guard was not coming. (J.A. 163.) Accordingly, we also conclude that the district court did not commit clear error in finding that
the Coast Guards termination of the search before daylight worsened
the decedents positions.9
V.
The judgments of the district court are therefore
AFFIRMED.
NIEMEYER, Circuit Judge, dissenting:
Because the Coast Guard neither undertook nor sponsored a search
and rescue operation in this case and because, in any event, the Coast
Guard was not shown to have been "wanton or reckless," I submit that
it cannot be found liable for failing to rescue the Cornetts and young
Bobby Lee Hurd from the deadly consequences of their tragic boating
accident.
In the early morning hours of December 29, 1997, the Cornetts
boat struck a jetty outside of Charleston Harbor and sank. At 6:10
a.m., Harbor Pilot Gerald Lucas, who was at the helm of the M/V
9
The United States has not challenged the district judges finding of
proximate cause, i.e., that the children would have been rescued if the
search by the Coast Guard or other mariners had continued. Accordingly,
our review of the trial courts opinion does not reach that aspect of the
case.
14
Pearl Ace, was told by a boatswain on the vessel that the boatswain
had heard someone screaming for help near Buoy 22. Lucas communicated this information to the Office of the Harbor Pilots Association, which in turn passed the information on to the Coast Guard at
6:27 a.m. The material portions of the telephone conversation
between the Pilots Office and the Coast Guard were as follows:
Pilots Office: Ok. Um, we got a pilot inbound, um, on a car
carrier and he just passed 22 buoy, you know right inside the
harbor.
CG: Uh huh, twenty, uh.
Pilots Office: Twenty-two.
CG: Twenty-two. Ok.
Pilots Office: And, uh, the boatswain on ship radioed to the
bridge that he heard somebody yelling for help and the pilot
boats have gone, the pilot boat was here at the dock, theyve
gone back out to look around, but the pilot wanted me to
call you to let you know what was going on, like I said,
weve got the pilot boat out there looking for somebody
now.
CG: They werent able to talk to them any.
Pilots Office: Well no, it was somebody in the water.
CG: Oh, somebody in the water.
Pilots Office: Yeah, thats what they think.
CG: Oh, I see.
Pilots Office: Um, so the pilot boat, they were just getting
up here to the dock but they just turned around and went
back out to 22 to look around, what theyre going to find I
dont know.
15
CG: Ok, how, many, which pilot boat went out there?
Pilots Office: Carolina, excuse me, wait a minute, we had
problems with the boats last night. Palmetto State.
CG: Palmetto State.
Pilots Office: But I guess once they get back to 22, I can
call you back and let you know what they see or hear, but
I dont even . . .
CG: Ok, ok, well, Ill alert the station and theyll determine
if they want to get underway also.
Pilots Office: Oh, ok. Well, I can, if you want, I can call
you back once they get out there to 22 buoy and see what
they find.
CG: Ok, could you.
Pilots Office: Yeah, yeah.
CG: Alright.
The Pilots Office called back 20 minutes later and reported that nothing had been seen or heard from the location of Buoy 22, and the
Coast Guard took no further action. These conversations were all of
the objective facts relating to any "undertaking" by the Coast Guard
to conduct a search and rescue operation, either directly or through
the Pilots Office.
In addition to transcripts of these conversations, evidence was
presented at trial that if the Coast Guard had undertaken a search and
rescue at the time it received the 6:27 call, some of the persons from
the Cornetts boat could have been saved.
The district court concluded that the Coast Guard had actually
undertaken a search and rescue through the Office of the Harbor
Pilots Association and that the failure to conduct a more comprehen-
16
sive search after the Pilots Office reported that the pilot boat had
found nothing near Buoy 22 was "wanton and reckless." Accordingly,
it entered judgment in favor of the plaintiffs against the Coast Guard
for $19 million. I submit that this decision is both alarming in substance and contrary to Fourth Circuit law.
While the Coast Guard is authorized to conduct search and rescue
operations, it has no duty to do so. Kelly v. United States, 531 F.2d
1144, 1147-48 (2d Cir. 1976); McLaughlin v. United States, 671 F.
Supp. 72 (D. Me. 1987). Only if the Coast Guard undertakes a search
and rescue operation and conducts the operation wantonly or recklessly can it become liable for its conduct. See, e.g., Furka v. Great
Lakes Dredge & Dock Co., 755 F.2d 1085, 1088-89 (4th Cir. 1985)
("Furka I") (holding that if a search and rescue operation has been
undertaken, "there must be evidence of wanton or reckless behavior
on plaintiffs part before any fault may be assigned"); see also Furka
v. Great Lakes Dredge & Dock Co., 824 F.2d 330, 331-32 (4th Cir.
1987) ("Furka II") (same). In Furka I, we explained that "of all
branches of jurisprudence, the admiralty must be the one most hospitable to the impulses of man and law to save life and limb and property. . . . Law must encourage an environment where human instinct
is not insular but responds to the plight of another in peril." 755 F.2d
at 1089 (internal quotation marks and citations omitted); see also
Furka II, 824 F.2d at 332. We observed that a negligence standard,
rather than a wanton-or-reckless standard, would inappropriately discourage rescue efforts.
In this case, there was no evidence that the Coast Guard undertook
a search and rescue operation. Moreover, correctly applying the
wanton-or-reckless standard of care, the Coast Guard could not be
found liable simply because it did nothing.
First, relying on what the Coast Guard telephone operator was
thinking or should have been thinking, rather than on what he said or
what the Coast Guard did, the majority concludes that the Coast
Guard had in some fashion undertaken a search and rescue operation
through the efforts of the Pilots Office. This conclusion could only
have been grounded on the fact that the Coast Guard agreed to receive
information of what the pilot boat would find after completing its
already-begun search operation ("weve got the pilot boat out there
17
looking for somebody now"). The full evidence on which to find that
the Coast Guard had undertaken an operation or commissioned someone else to undertake it must therefore be contained in the following
portion of the 6:27 telephone call:
Pilots Office: Well, I can, if you want, I can call you back
once they get out there to 22 buoy and see what they find.
CG: Ok, could you.
Pilots Office: Yeah, yeah.
CG: Alright.
To convert this conversation, in which the Coast Guard agreed only
to receive information, into a Coast Guard sponsored search or rescue
operation is simply unsupportable. And no case law can be found to
construe such an agreement to receive information as the Coast
Guards undertaking of a search and rescue operation. Indeed, the
cases whose facts are closest to these circumstances have found to the
contrary that the Coast Guard had not undertaken a search and rescue operation merely by seeking and receiving information. See, e.g.,
Daley v. United States, 499 F. Supp. 1005 (D. Mass. 1980).
Furthermore, the entire 6:27 conversation is circumscribed by the
Coast Guards express statement limiting its role. Rather than saying
that the Coast Guard would undertake a search and rescue operation
or was authorizing the Pilots Office to do so on its behalf, the Coast
Guard telephone operator stated instead: "Ill alert the station and
theyll determine if they want to get underway also." (Emphasis
added). By indicating that it would determine later whether to get
underway, the Coast Guard precluded an interpretation that it was
then designating the Pilots Office to act on its behalf. As we know,
the Coast Guard never determined to "get underway" and therefore
could not be held liable.
In addition, when the Pilots Office called the Coast Guard, it had
already, on its own, commenced a search, telling the Coast Guard,
"theyve gone back out to look around . . . weve got the pilot boat
18