Hurd v. U.S.

• Decision Date: 08 March 2001
• Docket Number: No. CIV. A. 2:99-0241-18.,No. CIV. A. 2:99-0242-18.,No. CIV. A. 2:99-0240-18.,No. CIV. A. 2:99-0243-18.,CIV. A. 2:99-0240-18.,CIV. A. 2:99-0241-18.,CIV. A. 2:99-0242-18.,CIV. A. 2:99-0243-18.
• Citation: 134 F.Supp.2d 745
• Parties: Deirdre Lynn HURD, as Personal Representative of the Estate of Bobby Lee Hurd, Jr., deceased, Plaintiff, v. UNITED STATES of America, Defendant. Mary E. Moore Cornett, as Personal Representative of the Estate of Michael Paul Cornett, deceased, Plaintiff, v. United States of America, Defendant. Mary E. Moore Cornett, as Personal Representative of the Estate of Michael Wayne Cornett, deceased, Plaintiff, v. United States of America, Defendant. Mary E. Moore Cornett, as Personal Representative of the Estate of James Daniel Cornett, deceased, Plaintiff, v. United States of America, Defendant.
• Court: U.S. District Court — District of South Carolina

Page 745

134 F.Supp.2d 745

Deirdre Lynn HURD, as Personal Representative of the Estate of Bobby Lee Hurd, Jr., deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Mary E. Moore Cornett, as Personal Representative of the Estate of Michael Paul Cornett, deceased, Plaintiff, v. United States of America, Defendant.

Mary E. Moore Cornett, as Personal Representative of the Estate of Michael Wayne Cornett, deceased, Plaintiff, v. United States of America, Defendant.

Mary E. Moore Cornett, as Personal Representative of the Estate of James Daniel Cornett, deceased, Plaintiff, v. United States of America, Defendant.

No. CIV. A. 2:99-0240-18.

No. CIV. A. 2:99-0241-18.

No. CIV. A. 2:99-0242-18.

No. CIV. A. 2:99-0243-18.

United States District Court, D. South Carolina, Charleston Division.

March 8, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gedney M. House, III, Charleston, SC, Dennis J. Rhoad, Charleston, SC, for plaintiff.

John K. Douglas, US Attorneys Off., Charleston, SC, Debra J. Kossow, Scatt Memmott, Dept. of Justice, Washington, DC, for defendant.

OPINION

NORTON, District Judge.

I. BACKGROUND

The United States Code provides that "[i]n 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 ..., the Coast Guard may: (1) perform any and all acts necessary to rescue and aid persons and protect and save property." 14 U.S.C. § 88(a)(1). These tragic cases arise out of a distress call received by the United States Coast Guard in late December 1997.¹

On December 26, 1997, forty-nine year old Michael Wayne Cornett, an accomplished sailor,² and his two sons, sixteen-year old Michael Paul Cornett and thirteen-year old James Daniel Cornett, drove from Hiltons, Virginia to the Light Keeper's Marina in Little River, South Carolina to pick up the Sailing Vessel Morning Dew ("S/V Morning Dew"), a thirty-four-foot sailboat purchased by the family one month earlier. (Defendant's Exhibit 3, Tr. at 75-76) A fourteen-year old cousin, Bobby Lee Hurd, Jr., from Mountain City, Tennessee, accompanied the Cornetts on this trip. Michael Wayne Cornett intended to sail the S/V Morning Dew from Little River, South Carolina to Jacksonville, Florida along the Intracoastal Waterway ("ICW"). (Tr. at 65, 134, 137)

On December 28, 1997, the S/V Morning Dew proceeded from North Myrtle Beach, South Carolina and sailed through Winyah Bay into the open ocean, instead of proceeding on the ICW. (Defendant's Exhibit 3; Plaintiffs' Exhibit 3 (SAR Case Study Report at 5)) The National Weather Service had issued a small craft advisory from Little River Inlet, South Carolina to Savannah, Georgia with winds predicted to exceed twenty-five knots from the east. Seas were predicted to range from five to eight feet. Areas of rain and embedded thunderstorms were expected to reduce visibility below one nautical mile. (Defendant's Exhibit 14, Plaintiffs' Exhibit 3, SAR Report at 3) The actual conditions were observed to be "raining, windy, rough." (Tr. at 316)

At approximately 0217 (2:17 a.m.) on December 29, 1997, the S/V Morning Dew allided with the north jetty leading into Charleston Harbor. (Tr. at 147; Peschel Deposition at 82-83; Lee Deposition at 34) All four persons on board the S/V Morning Dew drowned at sea. Their personal representatives claim the decedents lost their lives because of the acts and/or omissions of the Coast Guard.³ There are no eyewitnesses to the accident and no survivors.

Plaintiffs sued Defendant under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. and alternatively as a claim in admiralty with jurisdiction under general maritime law, 28 U.S.C. § 1333 and under the Suits in Admiralty Act, 48 U.S.C. §§ 741-752 and the Public Vessels Acts, 46 U.S.C. §§ 781-790. As discussed below, this court has admiralty jurisdiction over this case. This court has considered the trial testimony, deposition testimony, exhibits, pre- and post-trial memoranda and enters the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

II. EVIDENTIARY ISSUES

A. Admissibility of the National Transportation Safety Board Report

The United States objects to the use of certain testimony of Coast Guard witnesses before the National Transportation Safety Board ("NTSB") on hearsay grounds. This court, however, finds that the testimony of Shelley, Sass, and DaPonte before the NTSB does not constitute hearsay. See Fed.R.Evid. 801(d)(2)(A)(C)(D) (Admission of a Party-Opponent).⁴ Shelley, Sass, and DaPonte testified before the NTSB as agents of the United States Coast Guard. As such, their statements regarding the S/V Morning Dew incident do not constitute hearsay. Moreover, the NTSB report itself falls within a hearsay exception, Rule 803(8) (Public Records and Reports). Rule 803(8) provides that the following information shall not be excluded by the hearsay rule:

Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth ... (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report ... or (C) in civil actions and proceedings against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Courts have consistently held that the factual portions of a NTSB report are admissible into evidence, while excluding any agency conclusions on the probable cause of the accident. See Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 848 (10th Cir.1986); Keen v. Detroit Diesel Allison, 569 F.2d 547, 549-51 (10th Cir. 1978); Texasgulf, Inc. v. Colt Electronics Co., Inc., 615 F.Supp. 648, 651 (S.D.N.Y. 1984); Fidelity & Casualty Co. v. Frank, 227 F.Supp. 948, 949 (D.Conn.1964); Wenninger v. United States, 234 F.Supp. 499, 518 (D.Del.1964), aff'd, 352 F.2d 523 (3d Cir.1965). Accordingly, the factual portions of the NTSB report, specifically the testimony of Shelley, Sass, and DaPonte, are admissible in this case.

B. Motion to Take Judicial Notice of the National Search & Rescue Manual

Following the trial in this matter, Plaintiffs filed a Motion to Take Judicial Notice of the National Search and Rescue Manual Sections 230, 232, 652, 713, and 714. Rule 201 of the Federal Rules of Evidence mandates that a court must take judicial notice of an adjudicative fact when a party so requests. See Fed.R.Evid. 201. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Id. Finding that these excerpts do not pertain to facts in dispute, namely that the Coast Guard "may" request assistance from third parties during a search and rescue mission, this court grants Plaintiffs' Motion to Take Judicial Notice of these excerpts.

III. CREDIBILITY

For some reason that is impossible for this court to discern, the Government did not deign to call any live witnesses at the trial of this case. This "tactical decision" (if that is what it was) has forced the court to determine credibility on paper. The Government's failure to present any live witnesses at trial is curious, considering this case was tried in Charleston, South Carolina where many of those involved in this incident were stationed.⁵ In determining the credibility of the Coast Guard witnesses, this court cannot ignore that Lt. Daponte admittedly and intentionally did not tell the truth to state law enforcement authorities investigating the S/V Morning Dew incident. (Deposition of Daponte at 46, 48) Daponte testified that he was instructed not to tell the whole truth by his Group Commander and District Office. (Deposition of Daponte at 47) Commander Manson Brown also acknowledged that the Coast Guard intentionally withheld information from state law enforcement agencies investigating the S/V Morning Dew incident. (Deposition of Brown at 64, 65, 67, 68, 69, 70)

In addition, this court must take notice of the circumstances surrounding the Coast Guard's visit to Ms. Cornett and the Hurd family on March 17, 1998. It is apparent that CDR Brown,⁶ representing the Coast Guard, intended to play the 0218 tape for the Hurds and Ms. Cornett and intentionally misrepresented the purpose for his visit to the families. (Deposition of Brown at 24) It is also clear that CDR Brown had been made aware that the families had legal representation prior to visiting Ms. Cornett and the Hurd family at the Hurd's home, but chose to ignore this fact. (Deposition of Brown at 22, 23, 25, 27) CDR Brown purposefully did not tell the families or their attorneys that he had a tape recording of the 0217 Mayday call or that he was going to play it for them. (Deposition of Brown at 28) It is also clear that the sole purpose of CDR Brown's visit was to play the tape. (Deposition of Brown at 30) The Coast Guard, specifically CDR Brown and Lt. Daponte, knew about the 0217 Mayday call by December 31, 1997. (Deposition of Brown at 42, 43) CDR Brown told his District Chief of OPS about the Mayday call on December 31, 1997. (Deposition of Brown at 47, 48) Needless to say, the playing of the tape shocked the parents of the dead boys, especially Libby Cornett. The Coast Guard did not disclose the tape to the state investigating agency, the South Carolina Department of Natural Resources, until March 20, 1998. (Plaintiffs' Exhibit 8 at Att. 50) Based on the foregoing, the internal inconsistencies in the testimony of many of the Coast Guard witnesses, and after consideration of the testimony of the Coast Guard witnesses at the NTSB hearing, this court finds that much of the government's case lacks...