Kurowsky v. US

• Decision Date: 15 May 1987
• Docket Number: No. 83 Civ. 2371 (PKL).,83 Civ. 2371 (PKL).
• Parties: Wayne E. KUROWSKY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

660 F. Supp. 442

Wayne E. KUROWSKY, Plaintiff, v. UNITED STATES of America, Defendant.

No. 83 Civ. 2371 (PKL).

United States District Court, S.D. New York.

November 12, 1986.

Findings of Fact and Conclusions of Law on Damages May 15, 1987.

Haight, Gardner, Poor & Havens, New York City (Stephen K. Carr, of counsel), for plaintiff.

Richard K. Willard, Asst. Atty. Gen., New York City (Marie L. Hagen, of counsel), for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

LEISURE, District Judge:

This is an action for damages arising out of plaintiff's efforts to assist a third party in recovering a sailboat. A non-jury trial on liability began on November 3 and ended November 10, 1986. Having heard the oral evidence offered at trial, and having considered the exhibits in evidence and briefs of counsel, this Court makes the following Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a).

FINDINGS OF FACT

1. At 1:24 a.m. on January 24, 1982, Ronald Grant called the United States Coast Guard, Group New York, at Governor's Island (hereinafter "CGNY"). He told CGNY that his sailboat had drifted from its mooring at Raritan Yacht Club. He had first called Coast Guard Group Sandy Hook (hereinafter "Sandy Hook") in New Jersey, but was advised to contact CGNY because Sandy Hook was iced in and had no boats in the water. Petty Officer Cox stated, "Okay, sir, we'll see what we can do for you, okay?" Cox took the telephone number of the Raritan Yacht Club, where Grant had been using a phone, as well as Grant's home number.

2. Grant's vessel was a 27-foot, white, one-design, sloop Soling sailboat.

3. At 9:57 a.m., George Merz, a waterfront resident of Joline Lane on Staten Island, contacted CGNY and informed Operations Duty Officer Detwiller that a boat was adrift in the tanker channel north of Boundary Beacon at the western end of Raritan Bay. Merz stated that the sailboat was sitting more or less stationary about 100 to 150 yard offshore, and that it probably came from the Raritan Yacht Club. Detwiller said that CGNY had already received a report that a sailboat was adrift from the yacht club.

4. At 10:07 a.m., Mr. Kaladsky, a neighbor of Merz on Joline Lane, reported to Detwiller that a sailboat was "parked" almost in the channel in Raritan Bay and there was nobody on it. Detwiller stated that he had already received such a report and that "I'm trying to get somebody to take care of it now."

5. At 10:15 a.m., Detwiller called Grant's home and spoke to his wife. Detwiller stated that the sailboat had been spotted, and gave Mrs. Grant the telephone numbers of Merz and Kaladsky, so that she could receive a more precise report of the boat's location from them. Detwiller stated that "if you request further Coast Guard assistance, please let us know. We have no boats in the area right now, and it'll take us quite a while to get a boat there." He added that the boat "is in the channel and it could be damaged by barges transiting the area." He concluded, "So the sooner you get somebody there, the better."

6. At all times referred to herein, the Coast Guard Cutter LINE (the "LINE") was under the command of Chief Boat-swain Mate Aldridge L. Lees, Jr. Chief Lees joined the Coast Guard in September, 1963. From September, 1963 through May, 1964, he served on active duty as a radarman. In May, 1964, Lees was released from active duty. He served in the Coast Guard reserves from that time until his enlistment expired in 1969. Lees reenlisted in April, 1980, when he went into active duty as a first class boatswain mate. He was transferred in June, 1981 to CGNY and the LINE, where he became officer in charge. Prior to January 24, 1982, Lees had reviewed the Coast Guard's National Search and Rescue Manual and was aware of the Coast Guard's internal policy on towing and salvage.

7. The LINE is a 65 foot tugboat. Its draft forward is four-and-one half feet and its draft aft is six-and-one half feet. The LINE has a maximum speed of ten knots. It carries towing gear and boat hooks, a reinforced bow for ice-breaking, a bull horn, fathometer, loud hailer, and television, among other equipment.

8. On January, 24, 1982, the crew aboard the LINE consisted of Lees and five other individuals.

9. The LINE had had engine trouble early in the day, and had made an engineering run to check out the engine repairs. As the engine repairs had been successful, the LINE had been directed to check on the aids to navigation in Raritan Bay. The Coast Guard had received several reports that buoys in the area were missing. The LINE headed to the Ward's Point area of Raritan Bay along the east side of Staten Island, passing under the Verrazano Bridge.

10. At 2:42 p.m., Grant called CGNY and spoke to QM3 Moochler. Grant said he had located his boat off Staten Island, near Prince's Bay, sitting in the channel, but that, "I can't locate any way of getting out to it." Moochler responded, "I'm afraid you're going to have to get commercial assistance for that." Grant stated that due to icy conditions "nobody's in the water now." Moochler explained that the Coast Guard did not send out its boats in icy conditions unless there was a "distress situation." Grant said there was "no distress at this time," and Moochler reaffirmed that "we wouldn't, you know, respond to anything like this." Grant asked Moochler for suggestions. Moochler suggested that Grant contact private marinas, launches, or tug boat companies in the area.

During the time of this conversation with Grant, CGNY spoke by radio with the LINE, and was informed that the LINE was en route to Ward's Point. CGNY told the LINE that it had a report of a sailboat adrift in the channel by Prince's Bay. CGNY asked the LINE to investigate.

CGNY told Grant, "Okay, we got a tug boat that's heading down that area right now." Grant then tried to explain more precisely where the boat was currently located. He added that it was dragging anchor.

CGNY asked Grant to hold, and CGNY then spoke to the LINE again. The LINE stated, "By the time we get down there it's probably going to be down there in that shoal area, see that?" CGNY responded to use caution and asked the LINE to let it know if the LINE could be of assistance.

Again speaking to Grant, CGNY confirmed that a Coast Guard vessel was en route to the scene. CGNY added, "But it's possible that she won't be able to get in close enough to assist because of the shoals in the area." CGNY advised that "when she gets on scene she'll notify us of the condition."

11. At 2:59 p.m., Grant spoke to CGNY again. Detwiller told Grant that a Coast Guard vessel was en route "and when they call in and let us know what the status is around your vessel I'll get in contact with you again." Grant asked whether he should wait at the yacht club, where he had been using a pay phone. Detwiller responded, "Yeah, that's the only thing I can suggest at this time, unless you can get a boat from the yacht harbor to take you over there." He added that the Coast Guard vessel would not be on the scene for another hour or so. Grant said he would try to get commercial assistance. Grant explained, "I'll try, if I can get some commercial way over, I'll call you back and tell you thank you and, you know, to forget it, okay?" Grant said he would try Stapleton Launch. Detwiller responded, "Okay, and like I say, once our vessel gets down there and is able to appraise the situation, we can give you a better idea of what we can do for you." After Grant asked another question, Detwiller responded, "Like I say, let's, let's just wait until he gets there and we'll contact you." Grant said, "Okay."

12. At 3:06 p.m., CGNY broadcast an announcement that Raritan Bay channels would be closed to all vessels during hours of darkness because aids to navigation were missing or off station due to ice.

13. At 3:10 p.m., the LINE contacted CGNY and asked whether "it's prudent for us to continue." The LINE said it had heard the broadcast about the channel closing, and added that it was experiencing three to four foot seas, was icing up, and had been forced to cut its speed. CGNY asked how close the LINE was to the vicinity where the sailboat had been reported adrift.

14. A few minutes later, at 3:13 p.m., the LINE said it would take about an hour to get to the vicinity of the sailboat. After discussing safety conditions, the LINE said it would continue toward Old Orchard Light and evaluate conditions at that point. CGNY advised the LINE to "give us a call from there."

15. At 3:32 p.m., the LINE contacted CGNY after turning across Raritan Bay. The LINE stated, "It doesn't appear to us in the conditions we're encountering here that we would be able to go down and attempt to retrieve that sailboat. Conditions are just marginal for us right here now; we're going to try to work into the lee and come back up the kills, over." CGNY acknowledged receiving this transmission.

16. At 3:54 p.m., CGNY asked the LINE whether it was in sight of the sailboat. The LINE said it had been keeping an eye out for the sailboat, but had been unable to spot it. The LINE added, "Right now we're just concerned with getting ourselves back in the lee, because all this ice we've taken on board, we got some pretty good swells down here." After further conversation, CGNY advised the LINE that it had permission to return to Governor's Island when feasible. The LINE estimated it would take about two to two-and-one half hours to get back.

17. On Sunday, January 24, 1982, plaintiff Wayne Kurowsky was scheduled to work the day shift from 7:30 a.m. to 7:30 p.m. as a boat operator at Amerada Hess' First Reserve Terminal located on the Raritan River in Perth Amboy, adjacent to the Victory Bridge on the north bank of the river. His duties required him to place flotation booms around vessels loading and discharging petroleum products at the Hess facility. In order to position the booms, Kurowsky used a 19-foot MAKO work boat (the "...