Brown v. United States
| Decision Date | 21 December 1984 |
| Docket Number | Civ. A. No. 81-168-T. |
| Citation | 599 F. Supp. 877 |
| Parties | Honour BROWN, Individually and as Personal Representative of Gary Brown and as Administratrix of the estate of Gary Brown, et al., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Michael B. Latti, William J. Griset, Jr., Latti Associates, Boston, Mass., for plaintiffs.
David Hutchinson, Trial Atty., Torts Branch, Civil Div., Washington, D.C., for defendant.
On November 21, 1980, the fishing vessels SEA FEVER and FAIRWIND left the port of Hyannis, Massachusetts for the fishing grounds near Georges Bank. The next day, several crew members were lost during a vicious storm that hit Georges Bank. In this action, plaintiffs1 contend that the National Oceanic and Atmospheric Administration ("NOAA") negligently failed to maintain a weather observation buoy on Georges Bank whose data was critical to accurate forecasts and, as a result, deprived the vessels of essential navigational information that would have allowed them to escape the tragic consequences of the crippling storm.
In May 1984, a seven day bench trial was held, limited to the issue of liability. After the receipt of post-trial briefs, the matter was taken under advisement on October 26, 1984.
Shortly before noon on Friday, November 21, 1980, the lobster-fishing vessels FAIRWIND and SEA FEVER left Hyannis, Massachusetts and headed for their lobster traps located on the southeast slope of the Atlantic Ocean's Georges Bank. The FAIRWIND was a 52 foot, steel hull, diesel powered vessel built in 1973. Captain William Garnos was the ship's master. George Berry, Robert Thayer, and Ernest Hazard were crewmembers. The SEA FEVER, built in 1972, was 46½ foot, wood hull, and diesel powered. Captain Peter Brown was the ship's master. Brad Bowen, Richard Rowell, and Gary Brown were crewmembers. Both vessels were equipped with sophisticated nautical equipment, including VHF radios, radar, Loran position finders, depth sounders and single sideband radios. This equipment, coupled with information provided by the National Weather Service (NWS), made it possible for vessels their size to fish 100 miles off shore in that portion of the Continental shelf known as Georges Bank.
Captain Brown testified that it is industry custom for fishermen to use the VHF and sideband radios to monitor the forecasts of the NWS as well as the Notices to Mariners which provide navigational information and special weather warnings. Within fifty miles of shore, fishermen monitor the continuously broadcast VHF forecast. Beyond that range, they monitor the forecasts issued every six hours on the sideband radio. Two stations broadcast the forecasts—a six megacycle band from Portsmouth, Virginia and a two megacycle band, twenty minutes later, from Boston, Massachusetts. Customarily, the fishermen listen to the 5:00 a.m., 11:00 a.m., 5:00 p.m. and 11:00 p.m. NWS broadcasts out of Portsmouth, and the 5:20 a.m., 11:20 a.m., 5:20 p.m. and 11:20 p.m. broadcasts from Boston.
Captain Brown testified that buoy data from various locations at sea was among the information he heard transmitted directly from the NWS prior to November 1980. That buoy data included buoy location, wind speed and direction, sea height, water temperature and air temperature. According to Captain Brown, buoy data was important, because it gave fishermen a picture of the weather they would encounter offshore. They regarded it as reliable, because it was gathered right on the scene.
Following custom, the masters of the FAIRWIND and SEA FEVER listened to the November 21, 1980 weather forecast issued by the NWS out of Boston at 11:20 a.m. before leaving Hyannis. The Georges Bank forecast indicated good weather for fishing.
Relying on this encouraging forecast, the vessels left port and headed towards the Great Round Shoal Channel which led to open sea. They arrived at the Great Round Shoal buoy at about 5:00 p.m. on November 21st. There, Captain Brown heard the following forecast:
After receiving this fair weather forecast, the vessels proceeded to Georges Bank. When they arrived there at approximately 11:00 p.m., the weather began to change for the worse, suddenly and without warning. But, the 10:39 p.m. forecast continued to predict good fishing weather.
10:39 p.m. Friday, November 21, 1980 GEORGES BANK WEST TO LONGITUDE 72. WINDS SOUTHEASTERLY 20 TO 30 KNOTS AND GUSTY SHIFTING TO THE NORTHWEST OVERNIGHT. NORTHWESTERLY WINDS 15 TO 25 KNOTS SATURDAY SHIFTING TO THE SOUTHWEST SATURDAY NIGHT. RAIN AND FOG LOWERING VISIBILITY TO LESS THAN 1 MILE TONIGHT IMPROVING TO OVER 5 MILES SATURDAY. SEAS 5 TO 10 FEET TONIGHT AND SATURDAY.
The first forecast of inclement weather came the next morning, November 22, 1980, at 4:39 a.m. That forecast was as follows:
After hearing that report, an on duty crewman awakened Captain Brown. Captain Brown's on-site observations were that the winds were already at gale force with heavy rain and seas reaching to 25 feet. Captain Brown decided that any attempt to turn back would be futile, because the intense gale wind was coming from the direction in which the vessel would have headed home. Instead, the vessel headed into the wind, trying to maintain its position and stability.
Later that morning, at 11:20 a.m., a forecast originating from the Boston NWS office, called for winds of 40 to 50 knots and seas 15 to 25 feet.
Captain Brown's on the spot observation at 11:00 a.m. was that the winds had already reached 70 to 80 knots and that the seas had crested to levels between 30 and 50 feet.
Meanwhile, the FAIRWIND was having comparable problems. It had turned around and was attempting to ride out the storm when it caught a wave and capsized and sank. Crewman Hazard was thrown overboard. After almost a two day struggle on a life raft, Hazard was rescued by the Coast Guard. The other three FAIRWIND crewmen were lost.
The SEA...
To continue reading
Request your trial
-
Brown v. United States
...of its failure to properly maintain a computerized weather buoy, for the drowning deaths of three lobster fishermen.1 Brown v. United States, 599 F.Supp. 877 (D.Mass. 1984). On January 28, 1985, a bench trial was held on the issue of damages. After the submission of post-trial briefs, the d......
-
Springer v. United States
...for providing a reliable weather monitoring and protection system for persons it knew would rely upon it. See Brown v. United States, 599 F.Supp. 877, 884 (D.Mass.1984). Given that defendant undertook to provide a service that was necessary for the protection of Springer, and that Springer ......
-
Schinmann v. United States
...setting from the instant action." 373 F.2d at 239. Plaintiffs also cite as "another case closely in sic point", Brown v. United States, 599 F.Supp. 877 (Mass.1984), an admiralty case involving deaths resulting from reliance on an inaccurate weather forecast which was the consequence of the ......
-
Sizemore v. United States, 85-107-CIV-ORL-11
...Corp., 745 F.2d at 245. The only post-Varig case cited by plaintiffs in which a cause of action was upheld is Brown v. United States, 599 F.Supp. 877 (D.Mass.1984). In that case, the court held that the National Oceanic and Atmospheric Administration owed a duty to fisherman to maintain a w......