United States v. DeVane, 19300.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation306 F.2d 182
Docket NumberNo. 19300.,19300.
PartiesUNITED STATES of America, Appellant, v. Jumelia M. DeVANE, as Administratrix of the Estate of James Frank DeVane, deceased, Appellee.
Decision Date15 August 1962

Alan S. Rosenthal, David L. Rose, Sherman L. Cohn, Attys., Dept. of

Justice, Washington, D. C., Clinton Ashmore, U. S. Atty., Tallahassee, Fla., for appellant.

Nathan Bedell, Jacksonville, Fla., for appellee.

Before TUTTLE, Chief Judge, BELL, Circuit Judge, and SIMPSON, District Judge.

GRIFFIN B. BELL, Circuit Judge.

This appeal is from a judgment entered against the government on a suit brought under the Federal Tort Claims Act1 and the Death on the High Seas Act2 to recover for the death of the captain of a fishing vessel, the Virginia May, which sunk in a storm off the west coast of Florida. The captain, James Frank DeVane, died five days thereafter while on a life raft.

As in United States v. Gavagan, 5 Cir., 1960, 280 F.2d 319, Cert.Den., 364 U.S. 933, 81 S.Ct. 379, 5 L.Ed.2d 365, we are concerned with death allegedly resulting from the manner in which the unsuccessful rescue of the Virginia May and her crew was handled by the Coast Guard operating under the National Search and Rescue Plan.3 The crew consisted of Captain DeVane and one helper, Alton Turner, who was saved by the Coast Guard.

Captain DeVane, a 48 year old resident of Steinhatchee, Florida owned the Virginia May, a fifty foot flat bottomed fishing vessel which he used for party and commercial fishing. On Monday, October 13, 1958, he and his helper departed Steinhatchee to fish the Florida Middle Ground, in the Gulf of Mexico, at a distance of approximately sixty five miles on a bearing of 215° from Steinhatchee, telling his wife that he would return on Friday or Saturday. They arrived at the Middle Ground on Tuesday and commenced fishing. On Friday, October 17, Captain DeVane talked with Captain Harrell of the Amberjack, who was then in port at St. Petersburg, reporting that he was fishing in the center of the Middle Ground, that the weather was rough, and that he planned to move to the east side of the Middle Ground to fish through Saturday if the weather faded, and would arrive home on Sunday, October 19.

On Saturday, October 18, the Virginia May fished alongside the Augustine where Captain DeVane discussed weather conditions with her captain and the fact that the barometer was erratic. Captain DeVane left the Augustine about one o'clock P.M. on a course for Steinhatchee, saying that he was going to return to port but would fish some on the way in order to finish out his catch. Captain DeVane was also in communication with the Georgia May that afternoon, reporting that he was fishing on the seventeen fathom curve in the Middle Ground.

Turner testified that they fished occasionally between one and five o'clock but headed generally toward Steinhatchee. They finished their fishing and continued on that course for about two hours until darkness came and they began to encounter heavy seas and high winds. The vessel was turned into the sea, the forward hatch cover was blown off as was the canvas top over the stern of the vessel. The motor was swamped at approximately ten o'clock P.M. and efforts to call for help on the radio failed.

Captain DeVane and Turner took to a life raft after placing flares, food and water in it, and the Virginia May went down. They failed to lash the supplies to the raft and it was immediately swamped by waves and the supplies lost, although they were able to stay with it. They were then adrift in the raft and exposed to the elements without food or water. Captain DeVane drank salt water from time to time but the evidence is disputed as to the amount. Turner sipped salt water. On Tuesday or Wednesday, Turner caught a fish with his hands and they ate it. Captain DeVane died just before the light of day on Thursday, October 23. That afternoon the raft was sighted by a search plane which directed a near-by fishing vessel to rescue Turner and remove Captain DeVane's body.

Meanwhile, upon the failure of Captain DeVane to return by Sunday morning, October 19, and being aware of the storm, Mrs. DeVane reported the Virginia May overdue by telephoning the Coast Guard station at St. Petersburg. She gave full information with respect to the vessel, where it had been fishing and stated that she had several persons standing by to go out if the Coast Guard spotted the vessel.

The Coast Guard Air Station at St. Petersburg is a SAR agency. The area of the Gulf in question is the responsibility of the seventh Coast Guard District in Miami. Immediately prior to receiving the information from Mrs. DeVane, an incident involving another vessel, the Lady Lou, had been reported. She was disabled at a location about sixty miles south and east of the last reported position of the Virginia May. A Coast Guard vessel was directed to proceed to the Lady Lou and to search for the Virginia May while enroute. The Coast Guard also immediately commenced a communications check in line with established procedure which involved calling all ports in the area inquiring as to the whereabouts of the Virginia May, to no avail. Attempts by the Coast Guard radio station to reach her by radio also were unsuccessful. Broadcasts were made hourly alerting all ships that the Virginia May was overdue with two persons on board.

At 1:36 P.M. on Sunday, the officer in charge at St. Petersburg, advised the Coast Guard District in Miami that the communications check had been completed with negative results. Normally the next step would have been to dispatch aircraft or vessels or both to search for the Virginia May but the Lady Lou reported that she was in need of immediate assistance and as a result of the efforts of the Coast Guard to assist her, the search for the Virginia May did not begin until 4:50 P.M. at which time the P5M, an aircraft was diverted to search the area where the Virginia May was last seen, and this continued until dark with no success. At 7:25 P.M. the Coast Guard Cutter Nemesis reported to the Coast Guard radio station at St. Petersburg that it had been in radio contact with the fishing vessel Georgia May and received a report of the communication between the Virginia May and the Georgia May on Saturday afternoon, and that the Georgia May would try to contact the Virginia May the next morning and one or the other would contact the Coast Guard. Based upon this information, the scheduled air search for the following morning, Monday, was discontinued pending the radio report.

A fateful error occurred on Monday morning resulting in the mistaken assumption that the Virginia May had been located and was in no distress. Captain Harrell of the Amberjack, having read in the newspaper that the Virginia May was overdue, reported to the Coast Guard by telephone that he had been in contact with the Virginia May on Friday and that the Virginia May planned to fish the eastern side of the Middle Ground all day Saturday and start back Sunday and should have made it by Sunday night. The Coast Guard then tried without success to call the Virginia May. As a result of some inexplicable error in the Coast Guard communication center in St. Petersburg, and this is not disputed, the message from the Amberjack was mistakenly interpreted to mean that the Amberjack had been in contact with the Virginia May on Monday morning, October 20, instead of Friday, October 17, and the search for the Virginia May was cancelled by the Coast Guard. Mrs. DeVane was then advised on that day that her husband was safe.

Within an hour after the Amberjack message had been received, Captain Hembvree, a boat operator friend of Captain DeVane, called the Coast Guard station in St. Petersburg to inquire of the plight of the Virginia May and was informed that she was safe and planned to fish a few more days. He testified that Captain DeVane once saved his life and that had he known the Virginia May was still overdue, and that the Coast Guard was not making an all out effort to find her, he would have searched for her and could have reached Middle Ground area within seven or eight hours.

On Tuesday morning, October 21, Warrant Officer Sellers came on duty at the Coast Guard radio station in St. Petersburg and, following his usual practice, checked over the radio log for the previous day. He immediately saw from the original messages and from their transcription a strong possibility of serious misinterpretation, and that it could well be that the Virginia May was not actually safe as reported. He compared the entry in the radio log with the messages sent to the District, ascertained the error and advised the Coast Guard District. At 9:35 A.M. the P5M was diverted from a training flight to recommence the search. The results for that day were negative. Additional search aircraft from other commands unsuccessfully searched over a wide area on Wednesday, October 22, and on the next afternoon at 4:00 P.M. the life raft was located at a position about thirty two miles south of its reported position when last seen.

It is undisputed that approximately twelve hours of search time was lost on Monday due to the error in the Coast Guard message center, and that the search thereafter was conducted in the best tradition of those services participating in it. The District Court found that the negligence of the Coast Guard in handling the messages resulted in the cancellation of the search at a crucial time, and concluded that the negligence proximately caused the death of Captain DeVane.

The government contends that the District Court erred in refusing to equate its position in rescue operations to that of a private person in like circumstances as is required by the Tort Claims Act, and thereby in imposing liability because of negligence which in no way worsened the position of decedent within the meaning of the Good Samaritan doctrine. It is also contended that the...

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