Hood v. US, Civ. A. No. 86-4250.
| Decision Date | 08 August 1988 |
| Docket Number | Civ. A. No. 86-4250. |
| Citation | 695 F. Supp. 237 |
| Parties | Llewellyn E. HOOD and Southern American Insurance Company v. UNITED STATES of America. |
| Court | U.S. District Court — Eastern District of Louisiana |
Robert C. Evans, New Orleans, La., for plaintiffs.
William F. Baity, Asst. U.S. Atty., New Orleans, La., John Edward Wells, IV, U.S. Dept. of Justice, Washington, D.C., for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is an admiralty case in which the United States of America has been sued for the failure of the Coast Guard to salvage a sinking vessel.
Having considered the testimony, exhibits, memoranda of law and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52.
1. The F/V CHERYL LEE was a diesel powered, fiberglass hulled fishing vessel built in 1982. The F/V CHERYL LEE was 51 feet in length and had a breadth of 17 feet. At all material times herein the F/V CHERYL LEE was owned by Llewellyn E. Hood.
2. On the morning of March 26, 1986, Captain Hood and his three crew members, Frank Horan, Guy McClave and Walter Hood, were long-line fishing aboard the F/V CHERYL LEE, approximately 21 miles southeast of Marathon, Florida in moderate seas.
3. QM1 Thomas King, the Coast Guard Search and Rescue Controller at Key West, received a call on VHF radio channel 22 from the F/V CHERYL LEE at 11:47 a.m. The fifty-one foot CHERYL LEE reported that she was taking on water, and due to battery failure had no bilge pump. The source of the flooding was reported as the after lazarette. The CHERYL LEE radioed her position, number of persons on board and a description of the vessel. Controller King told the crew of the CHERYL LEE to don their life jackets, get their raft ready and to activate their emergency beacon (EPIRB).
4. The call from the CHERYL LEE was heard by Coast Guard Station Islamorada. The Search and Rescue Controller at Key West, King, instructed Coast Guard Station Islamorada to send a Coast Guard Search and Rescue vessel to the reported position of the CHERYL LEE. The Station Islamorada Log reflects this call was received at 11:51 a.m. The Officer of the Day at Coast Guard Station Islamorada was MK2 Richard Anderson.
5. There are three Coast Guard Stations that operate under Group Key West's area of responsibility: Coast Guard Station Key West; Coast Guard Station Marathon; and Coast Guard Station Islamorada. In turn, Group Key West is overseen by Seventh Coast Guard District Headquarters in Miami.
Search and Rescue Operations in the District are governed by the National Search and Rescue Manual. When a distress signal is received, such as the radio call from the CHERYL LEE, the Search and Rescue System (SAR) is activated. There are five SAR Stages: (1) Awareness; (2) Initial Action; (3) Planning; (4) Operations; and (5) Mission Conclusion. The Awareness Stage is defined as awareness that an emergency situation may exist.
SAR incidents are by definition emergency events and are classified by phase as the emergency develops. There are three phases: the uncertainty phase; the alert phase; and the distress phase. From the time of the initial radio communications, the CHERYL LEE incident was in the distress phase, i.e., immediate assistance was required because the safety of a craft or person was being threatened by a grave and imminent danger. This is important because a case in the distress phase means there are lives at stake.
In the Seventh Coast Guard District, Miami SAR Subregion, SAR Operations are controlled and coordinated by the Rescue Coordination Center (RCC) at Headquarters in Miami. The RCC Controller on duty was LT Michael Hudson. Thomas King held the designation Search and Rescue Controller at Key West, a subsection of the MIami SAR Subregion. Anderson and his supervisor, BM1 James Flanagan, Officer in Charge of Station Islamorada, acted as SAR Incident Coordinator. The Commandant of the Coast Guard has directed the various Coast Guard Districts to promulgate procedures for carrying out his formulation of a Non-Emergency Commercial Assistance Policy, whereby private enterprise will assume some functions which have been caried out by the Coast Guard in the past. Non-emergency assistance cases involve no reasonably foreseeable threat to life. The Commandant's Policy did not apply to the case of the CHERYL LEE because this was an Emergency Search and Rescue Operation, in the Distress Phase, from the initial radio call. Both the Station Islamorada Officer of the Day, Anderson, and the Group Key West Controller, King, considered the CHERYL LEE's plight as calling for an Emergency Search and Rescue Response. RCC Controller Hudson agreed. The Coast Guard's conclusion that the appropriate response to the CHERYL LEE's distress call should be an Emergency Search and Rescue Operation was without doubt proper and reasonable under the circumstances.
6. At 11:56 a.m., the Coast Guard 41493, a forty-one foot Coast Guard Search and Rescue Boat, was underway from Station Islamorada headed for the CHERYL LEE. The CG 41493 carried a crew of five. The Coxswain of the CG 41493 was Harlan Salmona.
7. At 12:02 p.m., Thomas King called the Seventh Coast Guard District Rescue Coordination Center (RCC) in Miami on the hot line reserved for that purpose. King briefed the RCC Controller, LT Michael Hudson, on the situation. King told him the Search and Rescue Boat had an estimated en route time of 1.5 hours. King requested Search and Rescue Aircraft. Only the RCC Controller can order aircraft to launch.
8. At 12:03 p.m., Hudson called Coast Guard Air Station Miami and requested two aircraft, a Falcon jet and an H-65 helicopter.
9. At 12:04 p.m., Hudson called King and discussed the need to obtain all pertinent information from the CHERYL LEE while there was still communication with the sinking vessel. This was important because the tone of the case at this time indicated that the vessel was sinking and persons were in the water or would be shortly.
10. At 12:08 p.m., Air Station Miami reported to Hudson that the CG 6517, an H-65 helicopter, would be airborne in ten minutes. Air Station Miami suggested substituting an H-3 helicopter for the jet because the jet was refueling and using the H-3 would take less time. Hudson agreed.
11. Meanwhile, Coast Guard Station Islamorada was in constant radio communication with the CHERYL LEE. Coast Guard logs record the substance of the conversations. Notably:
a. At 12:14 p.m., the CHERYL LEE reported that she had a 15 degree port list and that the stern was awash;
b. At 12:15 p.m., the CHERYL LEE stated water was still coming in on the stern;
c. At 12:18 p.m., the CHERYL LEE stated she was listing 20 degrees to port;
d. At 12:20 p.m., the CHERYL LEE stated she was activating her EPIRB;
e. At 12:25 p.m., the CHERYL LEE called MAYDAY to passing vessel "or any vessel." The passing freighter RODONA hove to and stood by; and
f. At 12:28 p.m., the CHERYL LEE stated that she was "sinking fast."
12. At approximately 12:30 p.m., all communications from the CHERYL LEE ceased due to failure of the vessel's electrical system by immersion in salt water.
13. Meanwhile, the crew of Coast Guard Helicopter CG 6157 lifted off at 12:19 p.m. There was a brief conversation between Hudson and King at 12:20 p.m. regarding whether or not the crew of the CHERYL LEE were still aboard the sinking vessel or whether they were in the water. When it was determined that the crew of CHERYL LEE was not yet in the water, this was relayed to CG 6157. CG 6157 touched back down briefly and took a pump on board. At 12:23 p.m., CG 6157 was en route and the H-3 helicopter was launching. Hudson briefed Captain Rudy Peschel, Chief of Search and Rescue, at 12:25 p.m., and the Office of Public Affairs at 12:26 p.m.
14. At 12:32 p.m., the freighter RODONA stated she had the sinking vessel in sight and would stand by and assist if needed. At 12:45 p.m., Hudson diverted the second helicopter, H-3, to another casualty. A Haitian fishing vessel was breaking up and a number of persons were in the water off Port Everglades.
15. Helicopter CG 6157 arrived on the scene at 12:58 p.m. The aircraft commander, James Sellers, was the first Coast Guard unit on the scene and assumed the duties of SAR On Scene Commander. The SAR On Scene Commander assumes control in executing the mission on scene and has the authority and discretion to direct, and to modify, plans as required due to on scene conditions. Sellers observed upon his arrival that the CHERYL LEE's stern was awash and the aft one-third of the vessel was completely submerged. In his discretion, as SAR On Scene Commander, and as the Commander of a United States Coast Guard Aircraft, Sellers decided it would be useless and unsafe to approach the sinking vessel for the purpose of dropping a pump. Sellers considered hoisting the CHERYL LEE's crew to safety. However, he could see the CG 41493 approaching. A boat-to-boat transfer is safer than hoisting by aircraft. Sellers had his aircraft orbit the scene and waited for the CG 41493 to arrive and evacuate the CHERYL LEE's crew.
16. During this series of events Captain Glenn Ward of Aquanaut Salvage had been monitoring the radio traffic. Ward was en route towards his home port in his salvage boat AQUANAUT, when he overheard the CHERYL LEE's distress calls. It is a common practice among commercial salvors to monitor the marine radio for the purpose of discovering potential salvage opportunities. Ward called his wife on another channel and asked that she phone the Coast Guard for details on the CHERYL LEE. Ward did this because he did not want to tie up the marine radio during an ongoing emergency. At 1:05 p.m., the Coast Guard asked Ward to stand by in case the CHERYL LEE signified it would accept commercial assistance. Ward called the Coast Guard and stated the position of the...
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