Thames Shipyard and Repair Co. v. U.S.
| Citation | 350 F.3d 247 |
| Decision Date | 26 November 2003 |
| Docket Number | No. 02-1619.,No. 02-1620.,02-1619.,02-1620. |
| Parties | 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. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
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 Michael J. Sullivan, United States Attorney, and Peter Levitt, Assistant United States Attorney, were on brief, for appellee.
Before TORRUELLA, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.
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.
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 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 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.
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 for independent salvage resources to reach the vessel, even if they had to come from as far away as Boston.
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.
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.
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 h...
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