United States v. Gavagan

• Citation: 280 F.2d 319
• Decision Date: 22 July 1960
• Docket Number: No. 18094.,18094.
• Parties: UNITED STATES of America, Appellant, v. Geraldine GAVAGAN, as Administratrix of the Estate of John Gordon Gavagan, Deceased, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

280 F.2d 319 (1960)

UNITED STATES of America, Appellant, v. Geraldine GAVAGAN, as Administratrix of the Estate of John Gordon Gavagan, Deceased, et al., Appellees.

No. 18094.

United States Court of Appeals Fifth Circuit.

July 22, 1960.

COPYRIGHT MATERIAL OMITTED

David L. Rose, Alan S. Rosenthal, Attys., Dept. of Justice, Washington, D. C., Edith House, Asst. U. S. Atty., Jacksonville, Fla., George Cochran Doub, Asst. Atty. Gen., E. Coleman Madsen, U. S. Atty., Miami, Fla., for appellant.

Chester Bedell, Jack F. Wayman, Jacksonville, Fla., for appellees.

Before RIVES, Chief Judge, and CAMERON and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal concerns the Government's liability under the Federal Tort Claims Act¹ for death resulting from the manner in which the Government undertook the unsuccessful rescue of the shrimper Donald Ray and her crew off the Florida Coast. As the asserted tort was a maritime one occurring more than a marine league from shore, the applicable remedy for the wrongful death is the Death on the High Seas Act, 46 U.S.C.A. § 761.² The District Court after an extended trial on a record which comprises 1294 printed pages plus extensive exhibits, allowed recovery. The Government appeals.

I.

The Government in its approach persists in compressing this into the mold of private salvage at sea, so that it is a case of maritime salvage, neither more nor less. This note is the opening theme of its brief. "This case is the first one in which a district court has held the United States liable for the failure of its employees to reach a vessel in distress in time to save her crew. Indeed, * * * this case is the first in which any person has been held liable merely for failing to arrive at the scene of a vessel marooned in a storm in time to rescue her crew." (Emphasis supplied).

This implies that the attempted rescue failed because of negligent acts of those in command of the two Coast Guard vessels, the CG 83³ and the Buoy Tender Sweetgum, and that liability was imposed because one or both of these vessels made mistakes in the execution of the attempted salvage. This is far from the case. It is true, of course, that the CG 83, disabled, had withdrawn from the operation hours before and the Sweetgum was 30 miles, and three hours away. But the neglect was not in the failure of these two ships "to reach a vessel in distress in time." The neglect was that of persons ashore who were directing the whole operation. By 4:17 p. m. the Donald Ray was positively spotted by a National Search and Rescue plane at a position 18 miles off the coast. For over three hours this plane kept in continuous direct visual contact with the Donald Ray orbitting around her to guide surface or air units to the stricken vessel who, like the ninetieth and nine, while lost was now found. By a series of almost incomprehensible — and certainly tragic — mistakes of those ashore, and none of a kind requiring hard choices under the pressure of competing perils in extremis, the Donald Ray and her crew slipped off into the briny deep.

II.

Although to suggest it is perhaps to precipitate a renewal by the Government of the contention so far unsuccessful that the Federal Tort Claims Act imposes no liability for uniquely governmental activities,⁴ the fact is that this rescue project bore only limited resemblance to traditional salvage at sea. It was uniquely governmental, certainly in the sense of its size and organization. Few, if any, private concerns could mount such a vast undertaking.⁵

This activity was pursuant to the National Search and Rescue Plan (SAR) which had been promulgated in March 1956 by the President's Air Coordinating Committee⁶ pursuant to the specific Recommendation No. 2 of the Civil Air Policy of May 1954.⁷ It established three SAR Regions: (1) inland, (2) maritime, (3) overseas. The Air Force was designated as Regional SAR Coordinator for (1) inland region and the Coast Guard for the (2) maritime region. Within the organization of the Coast Guard the Commander, 7th Coast Guard District was responsible for the waters off Florida. The Plan called for the making of interservice agreements by the Regional SAR Coordinator (here Coast Guard) with the Armed Forces and governmental agencies. The purpose of such agreements was "to organize existing agencies and their facilities * * * in a basic network for rendering assistance both to military and non-military persons and property in distress * * *" and to "provide for the fullest practicable utilization of the facilities of such agencies in regional SAR missions under the Regional SAR Coordinator * * *." For delegation of the authority and responsibility of the Regional SAR Coordinator in territorial subdivisions, the Plan called for the establishment of an appropriate Rescue Coordination Center (RCC). The RCC had the immediate responsibility to "coordinate and, as appropriate, direct the operations of SAR facilities committed to any SAR mission * * *."

To achieve the broad humane objective of this Plan⁸ it was perfectly natural that the Coast Guard was named as the Regional SAR Coordinator for the maritime region. Such responsibilities are within those long imposed upon the Coast Guard and now covered by statute which provides that the Coast Guard "may render aid to persons and protect and save property at any time and at any place at which Coast Guard facilities and personnel are available and can be effectively utilized."⁹

Operation of this Plan under the organic responsibility of the District Commander was committed to the Rescue Coordination Center (RCC) at Miami. RCC was responsible for the coordination of all units being used in any Search and Rescue operation in waters off the Florida Coast. In immediate charge of RCC was the Controller, here a Commissioned Coast Guard officer. For this operation RCC had effective supervisory command over these agencies and facilities: the Captain of the Port at Jacksonville (COP-Jax); Coast Guard radio station at Jacksonville (CG RAD-Jax); the Coast Guard vessels CG 83 and Sweetgum;¹⁰ and the SAR Unit of the Naval Air Station at Jacksonville (NAS-Jax). The planes (and crews) supplied by NAS-Jax were the amphibian Dumbo I, a helicopter and Cardfile I. Of course, the whole system, as in any organization, depended on communication¹¹ for the effective transmission and evaluation of data to permit timely decisions to meet changing conditions.

III.

We shall not undertake to discuss much of the evidence showing how this complex administrative machine operated. The tragedy in mistake in lives lost is heightened by the fact that the system operated so well down to the very point where success was within reach. At that time it broke down, not because of tempestuous weather or perils of an angry cruel sea, but through those simple human errors that make us all fallible.

The Donald Ray, a 55-foot shrimper operating out of Mayport, a small fishing village at the mouth of St. John's River, left Mayport early March 7, 1957, for the fishing grounds ESE of Jacksonville. Other fishing vessels expected to follow her early on March 8. During the night of March 7-early March 8, the weather kicked up and small craft warnings were hoisted. The other vessels cancelled departures and they expected the Donald Ray to return to port. When the Donald Ray did not return all became greatly concerned. The village had the common bond of fishermen and anxiety traveled fast. One of the fishermen called COP-Jax to report the Donald Ray overdue. Before COP-Jax could compose a message for teletype to RCC at Miami one of the fishing vessels still in Mayport contacted the Donald Ray by radio. The report passed on immediately to the Coast Guard was frightening. The Donald Ray reported that she was in sinking condition, had no lifeboat or liferaft aboard, and was in need of immediate help. She reported that she had run out 4½ hours ESE and was then in 19 fathoms. Her engines were still operating which enabled the crew to hold the boat into the wind to try to work her into the beach. But the outlook was not bright since water was then up on the engine halfway to the clutch, the pumps had stopped, and they were bailing with buckets. COP-Jax teletyped this information to RCC.

Established for just such emergencies, the rescue machinery under RCC worked quickly. Within approximately a half an hour the CG 83 and the Sweetgum, dispatched by RCC, were on their way. At 9:32 a. m. RCC ordered CG RAD-Jax to broadcast and repeat in fifteen minutes an all ships emergency. When fishermen from still another vessel again contacted the Donald Ray the fathoms were put at 16. This information as well as the correction to 45 miles ESE was passed on to COP-Jax. It would take the Sweetgum nearly three hours to reach the position first given (30 miles ESE Jacksonville bar) and over four hours to reach the point 45 miles ESE Jacksonville bar. In the meantime at the request of RCC the amphibian Dumbo I together with a helicopter were assigned by NAS-Jax. Aerial reconnaissance by standard search patterns in the reported vicinity (45 miles ESE) was negative and the plane returned to her Jacksonville base for refueling about 2:30 p. m. Neither CG 83, Sweetgum, nor the planes had been informed by RCC that the Donald Ray's engines were working and she was trying to get in toward shore. In the meantime, CG 83 had sustained heavy weather damage and she retired. The Sweetgum continued her search in an area as far out as 55 miles.¹²

Then the miracle happened, or nearly did. Dumbo I resuming search flew directly east from her base at Jacksonville. At 4:14 p. m. the plane sighted a vessel. After two passes the Dumbo I positively identified the ship as the Donald Ray. This fact and her position 18 miles off the Coast bearing 90 degrees were immediately reported by radio. Both CG RAD-Jax and NAS-Jax received this message. This position and that subsequently reported by...