Petition of United States

• Decision Date: 26 March 1963
• Docket Number: Civ. No. 62-23.
• Citation: 216 F. Supp. 775
• Parties: Petition of The UNITED STATES of America, a sovereign nation, as owner of the UNITED STATES COAST GUARD VESSEL INVINCIBLE, Official Number 52300, for exoneration from or limitation of liability.
• Court: U.S. District Court — District of Oregon

216 F. Supp. 775

Petition of The UNITED STATES of America, a sovereign nation, as owner of the UNITED STATES COAST GUARD VESSEL INVINCIBLE, Official Number 52300, for exoneration from or limitation of liability.

Civ. No. 62-23.

United States District Court D. Oregon.

March 26, 1963.

Douglas M. Fryer, Atty., Admiralty & Shipping Section, Dept. of Justice, Seattle, Wash., and Sidney I. Lezak, Acting U. S. Atty., Portland, Or., for petitioner.

James R. Ellis and John A. Gose, of Preston, Thorgrimson, Horowitz, Starin & Ellis, Seattle, Wash., and A. E. Glickman, Milwaukie, Or., for claimants.

KILKENNY, District Judge.

The claimants, Onalue Bolam, Administratrix of the Estate of Robert Bolam, Deceased; Mary Louise Sigurdson, Administratrix of the Estate of Ted Arnold Sigurdson, Deceased; and Roy Furfiord instituted this suit in admiralty under the Public Vessels Act, 46 U.S.C. § 781 and the wrongful death statute of the State of Washington, RCW.¹ Later, the United States filed its Petition for Exoneration from or Limitation of Liability. The claimants were ordered to answer and prosecute their claims under the Petition and by such Order all other legal proceedings were enjoined. In due course, claimants filed their answers and claims for damages. The issues of exoneration, limitation and damages on the three claims have been ordered tried in petitioner's limitation proceeding. Default has been entered against all other possible claimants.

The record discloses, and I find, that on the afternoon of January 28, 1960 the fishing vessel BARBARA LEE capsized on the Grays Harbor Bar while attempting to tow the INVINCIBLE, a disabled United States Coast Guard Vessel. At approximately 8:00 A.M. on that day the BARBARA LEE left Westport, Washington and proceeded north along the coast to set crab traps. The vessel was a 57-foot purse seine fishing unit built new for the claimant, Roy Furfiord, in 1949. The BARBARA LEE was in command of her skipper, decedent Robert Bolam, and with him were two fishermen, Ted Arnold Sigurdson and Harold Pernula. When the traps were set the BARBARA LEE proceeded south toward the entrance of Grays Harbor with the intention of returning to Westport.

Located at Westport, about four miles inside the harbor entrance, is the Grays Harbor Lifeboat Station. On the afternoon in question, the commanding officer was absent from the station. Chief Boatswain's Mate Putnam was the acting officer in charge. About 2:30 P.M. the wind had freshened from the southwest to about 30 miles per hour with some stronger gusts and about that time the station called the BARBARA LEE by radio and obtained her position. Putnam was aware of the fact that a heavy ebb tide would be running out across the Bar when the BARBARA LEE reached that area. Such condition makes the Grays Harbor Bar one of the roughest and most dangerous on the Pacific Coast. Visibility of the Bar was obscured by a light rain and fog and Putnam concluded to send a boat on Bar Patrol to determine the true conditions on the Bar and to be available to assist the BARBARA LEE, if necessary. There is some dispute as to whether the vessel selected, the INVINCIBLE, was sent out on a regular patrol. This, to me, is of no significance. The INVINCIBLE was a 52-foot vessel, specially built for rough and dangerous waters such as the Grays Harbor Bar. It is described in the Coast Guard Manual as "self-bailing, self-righting, virtually unsinkable" and is "designed to withstand the most severe conditions that can be encountered at sea". The INVINCIBLE was built in 1935. It carried a crew of four as a normal complement and on the occasion in question carried a full crew. Boatswain's Mate Second Class Miller, serving as Coxswain; Marvin Johnson serving as Engineer; Boatswain's Mate Third Class Meier and Seaman Apprentice Carl Roley, serving as seamen and line handlers. Miller selected the crew. Apprentice Seaman Roley was inexperienced. He had never crossed this Bar in rough weather and before this trip had never been aboard the INVINCIBLE when she was underway. He became seasick shortly after the vessel left the slip, went below before it reached the Bar, and was totally incapacitated and took no part in the activities which followed. The INVINCIBLE left her mooring at Westport at approximately 3:00 P.M. Sea conditions were good inside the Bar and the INVINCIBLE proceeded to go around the south jetty across the Bar where she encountered a moderate swell from a southerly direction. When she reached Buoy No. 6 she called the BARBARA LEE by radio and the two vessels rendezvoused in the vicinity of Buoy No. 2. A shouted conversation was held between Miller and Bolam, in which there was a misunderstanding. Miller thought the BARBARA LEE intended to stay outside the Bar, but Bolam had no such intention. Miller called the Station and advised that the BARBARA LEE was staying out and the INVINCIBLE was going to cross back in. Both vessels started back across the Bar at approximately the same time. The BARBARA LEE proceeded on a northeasterly course quite close to the line of Buoys on a more or less straight line to Buoy No. 8 off the end of the south jetty. The two vessels followed in parallel courses with the BARBARA LEE close to the Buoy line and the INVINCIBLE approximately 500 feet off-shore from the Buoy line and a little behind the BARBARA LEE. The BARBARA LEE slowed down to let some large waves pass under her, but she successfully crossed the Bar, passed Buoy No. 8 and made the turn behind the lee of the westerly end of the south jetty, which might be considered a place of safety. When the INVINCIBLE reached a point abeam of Buoy No. 8 it had approximately 600 feet to go before reaching the protection of the jetty. At this point, Miller looked back and saw a big wave building up on his starboard corner. He did not have time to turn his bow into the wave so he put his wheel hard to the left to take the wave on the stern. The INVINCIBLE turned slowly in heavy seas, but Miller was successful in turning the stern part way into the breaker, yet not sufficient to prevent the wave from breaking over her and causing her to roll between 90° to 100° to port. When this occurred, Miller and Meier were on the fire bridge, Johnson was in the pilot house, and Roley was below. Miller and Meier hung on and came back up as the vessel righted itself. Meier Johnson and Roley were not injured, Miller received a cut on the thumb and a severe cut on his head. During the course of the roll the engine stalled on the INVINCIBLE. It seems that water entered the engine through its single, unbaffled exhaust stack. When the vessel righted itself Johnson came out of the pilot house and went to the engine room and tried to start the engine. It would not start. The radio was damaged by water from a leaky porthole and would not transmit. Miller ran to the bow and motioned to the BARBARA LEE, which had then stopped in the lee of the jetty. The skipper of the BARBARA LEE responded to the request for aid, turned about and proceeded toward the INVINCIBLE. While the BARBARA LEE was so proceeding, Miller went aft, reached through the deck, grabbed the INVINCIBLE'S tow line and started pulling it on deck. He told the BARBARA LEE to call the station. She called the station and was directed to take the INVINCIBLE'S tow line and take her in tow. Bolam ordered Pernula and Sigurdson to put on life jackets, which they did. He did not put on a life jacket.

During the roll the two towing hawsers, lines, fenders and hose of the INVINCIBLE were tangled into a confusing mass of kinks and knots. The efforts of Johnson, Miller and Meier produced little more than 100 feet of hawser out of the lazaret. A heaving line was thrown to the BARBARA LEE and this line was tied to the INVINCIBLE. About 75 feet of hawser was payed out to the BARBARA LEE and was there tied to her port cleat. The other end was tied to the anchor winch on the bow of the INVINCIBLE. On the first surge the tow line slipped on the anchor winch of the INVINCIBLE, was badly chafed and on the second surge the hawser broke at the chafe. Subsequently, the active crew of the INVINCIBLE secured an additional 100 feet out of the lazaret and payed it out to the BARBARA LEE. This was tied to the remainder of the broken line from the first tow. The total length of hawser payed out from the bow of the INVINCIBLE was then between 175 and 200 feet for this second tow. During this period of time a four mile per hour ebb tide current was carrying both vessels farther away from the south jetty and nearer the breaking sea of the spit area. The second tow was being successfully carried out until a "sneak wave" or "breaker" struck the BARBARA LEE broadside on the starboard beam and the force of the wave caused the BARBARA LEE to capsize. Sigurdson was not seen again until his body washed up on the beach some two weeks later. Bolam had been thrown in the water, came up and grabbed a piece of broken mast. Later, Pernula gave Bolam assistance and pulled him up on a board. Pernula then swam and pushed the board and Bolam approximately 200 feet to the side of the INVINCIBLE. He shouted to the men on the INVINCIBLE to throw him a line or a life jacket or some floating object that they could get hold of.

At that time only Miller and Johnson were on deck. Meier was below. The top side life rings and heaving lines on the INVINCIBLE had been washed overboard on the roll. Pernula finally succeeded in getting hold of a life line of the INVINCIBLE but he was nearly exhausted at that time and Bolam was unconscious. A sharp wave pulled Bolam out of Pernula's grip, at which time Bolam slipped off the board and disappeared. Pernula was pulled aboard the INVINCIBLE by Miller and Johnson.

Thereafter, the INVINCIBLE drifted out across the north spit area for a considerable period of time. An anchor was then dropped in about 90 feet of water, at which time she cut the BARBARA LEE tow...