United States v. DeVane, No. 19300.

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

306 F.2d 182 (1962)

UNITED STATES of America, Appellant,
v.
Jumelia M. DeVANE, as Administratrix of the Estate of James Frank DeVane, deceased, Appellee.

No. 19300.

United States Court of Appeals Fifth Circuit.

August 15, 1962.


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

306 F.2d 183
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

306 F.2d 184
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

306 F.2d 185
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...

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44 practice notes
  • Cummins v. Lewis County, No. 76249-0.
    • United States
    • United States State Supreme Court of Washington
    • May 4, 2006
    ...representations creates a special relationship duty." Chambers-Castanes, Reply Br. of Appellants at 9; see also United States v. De Vane, 306 F.2d 182 (5th Cir.1962) (holding that the representations and foreseeable reliance on those representations created a relationship-based duty); Unite......
  • Chambers-Castanes v. King County, CHAMBERS-CASTANES and S
    • United States
    • United States State Supreme Court of Washington
    • September 15, 1983
    ...See Brown v. MacPherson's, Inc., 86 Wash.2d 293, 545 P.2d 13 (1975) and cases cited at 299, 545 P.2d 13. See also United States v. DeVane, 306 F.2d 182 (5th 4 Certainly, an actionable duty to provide police services may also arise under the rescue doctrine. See footnote 3. Such a theory is,......
  • DFDS Seacruises (Bahamas) Ltd. v. US, No. 86-0481-CIV.
    • United States
    • U.S. District Court — Southern District of Florida
    • December 21, 1987
    ...F.2d 108, 110 (6th Cir.1973); United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189, 195 (1st Cir.1967); United States v. DeVane, 306 F.2d 182, 186 (5th Cir.1962). Specifically, the Coast Guard owed no duty to render fire fighting services to any ship, including the Scandinavian Sea.......
  • In re Marjory Stoneman Douglas High Sch. Shooting FTCA Litig., Case No. 18-62758-CIV-DIMITROULEAS
    • United States
    • U.S. District Court — Southern District of Florida
    • August 31, 2020
    ...States , 473 F.2d 714 (5th Cir. 1973) ; for negligence of the Coast Guard in undertaking a rescue operation, United States v. DeVane , 306 F.2d 182 (5th Cir. 1962) ; for negligence in inaccurately marking the location of a wrecked ship, Somerset Seafood Co. v. United States , 193 F.2d 631 (......
  • Request a trial to view additional results
44 cases
  • Cummins v. Lewis County, No. 76249-0.
    • United States
    • United States State Supreme Court of Washington
    • May 4, 2006
    ...representations creates a special relationship duty." Chambers-Castanes, Reply Br. of Appellants at 9; see also United States v. De Vane, 306 F.2d 182 (5th Cir.1962) (holding that the representations and foreseeable reliance on those representations created a relationship-based duty); Unite......
  • Chambers-Castanes v. King County, CHAMBERS-CASTANES and S
    • United States
    • United States State Supreme Court of Washington
    • September 15, 1983
    ...See Brown v. MacPherson's, Inc., 86 Wash.2d 293, 545 P.2d 13 (1975) and cases cited at 299, 545 P.2d 13. See also United States v. DeVane, 306 F.2d 182 (5th 4 Certainly, an actionable duty to provide police services may also arise under the rescue doctrine. See footnote 3. Such a theory is,......
  • DFDS Seacruises (Bahamas) Ltd. v. US, No. 86-0481-CIV.
    • United States
    • U.S. District Court — Southern District of Florida
    • December 21, 1987
    ...F.2d 108, 110 (6th Cir.1973); United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189, 195 (1st Cir.1967); United States v. DeVane, 306 F.2d 182, 186 (5th Cir.1962). Specifically, the Coast Guard owed no duty to render fire fighting services to any ship, including the Scandinavian Sea.......
  • In re Marjory Stoneman Douglas High Sch. Shooting FTCA Litig., Case No. 18-62758-CIV-DIMITROULEAS
    • United States
    • U.S. District Court — Southern District of Florida
    • August 31, 2020
    ...States , 473 F.2d 714 (5th Cir. 1973) ; for negligence of the Coast Guard in undertaking a rescue operation, United States v. DeVane , 306 F.2d 182 (5th Cir. 1962) ; for negligence in inaccurately marking the location of a wrecked ship, Somerset Seafood Co. v. United States , 193 F.2d 631 (......
  • Request a trial to view additional results

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