Thames Shipyard & Repair Co. v. United States

United States Court of Appeals

For the First Circuit

Volume I of II

No. 02-1619

THAMES SHIPYARD AND REPAIR COMPANY,

Plaintiff in Cross Claim, Appellant,

v.

UNITED STATES,

Defendant, Appellee.

No. 02-1620

NORTHERN VOYAGER LIMITED PARTNERSHIP;

ONEBEACON AMERICA INSURANCE COMPANY f/k/a/

COMMERCIAL UNION INSURANCE COMPANY,

Plaintiffs, Appellants,

v.

UNITED STATES,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Torruella, Circuit Judge,

Campbell and Stahl, Senior Circuit Judges.

Thomas J. Muzyka, with whom Robert E. Collins and Clinton &

Muzyka, P.C. were on brief, for appellant Thames Shipyard and

Repair Company.

Michael J. Rauworth, with whom Cetrulo & Capone LLP were on

brief, for appellants Northern Voyager Limited Partnership and

OneBeacon America Insurance Company f/k/a Commercial Union

Insurance Company.

Stephen F. White, with whom Wright, Constable & Skeen LLP was

on brief, for amicus curiae C-Port, Incorporated.

Peter F. Frost, Trial Attorney, Civil Division, with whom

Robert D. McCallum, Jr., Assistant Attorney General, Donald J.

Sullivan, United States Attorney, and Peter Levitt, Assistant

United States Attorney, were on brief, for appellee.

November 26, 2003

CAMPBELL, Senior Circuit Judge. Plaintiffs-appellants

Northern Voyager Limited Partnership ("Northern Voyager") and

OneBeacon America Insurance Company, along with cross claim

plaintiff-appellant Thames Shipyard and Repair Company ("Thames

Shipyard") appeal from the district court's award of summary

judgment in favor of defendant-appellee United States in an action

related to the 1997 sinking of the F/V NORTHERN VOYAGER ("NORTHERN

VOYAGER") in waters off Gloucester, Massachusetts. This Court

reviews de novo a district court's grant of summary judgment,

affirming the judgment only if there is no genuine issue of

material fact and if the appellee is entitled to judgment as a

matter of law. Yohe v. Nugent, 321 F.3d 35, 39 (1st Cir. 2003).

We recount the history of this case in the light most favorable to

the losing parties (the plaintiffs-appellants) and then address the

principal questions presented.

I.

A. The Sinking of the NORTHERN VOYAGER

On the morning of November 2, 1997, the NORTHERN VOYAGER,

a 144-foot fishing vessel, was proceeding a few miles off the coast

of Gloucester, Massachusetts when crewmen discovered water flooding

a compartment in the ship's stern. The flooding, which resulted

when the starboard rudder dropped out of the vessel, was severe and

the crew immediately began trying to pump out the water. Despite

the crew's best efforts, the water level in the compartment

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continued to rise, threatening to flood the boat's engine room. If

the engine room flooded, all of the NORTHERN VOYAGER's electrical

pumps and generators located inside would be rendered useless.

The situation was such that the master of the NORTHERN

VOYAGER, Captain David Haggerty, radioed Coast Guard Station

Gloucester, told them that "[w]ater [was] coming in fast," and

requested that they "get some pumps out to [the ship]." To

complicate matters, a storm had passed through the area the night

before, leaving swells of roughly six to eight feet. Station

Gloucester (under the command of Chief Warrant Officer Wesley

Dittes) responded immediately by launching a 41-foot boat, to be

followed shortly thereafter by a 47-foot one. The Coast Guard also

diverted a 110-foot cutter, the ADAK, to assist as On Scene

Coordinator. Coast Guard Group Boston, which is organizationally

superior to Station Gloucester, assumed the role of Search and

Rescue Mission Coordinator.

The 41-footer arrived on the scene at approximately 9:15

a.m. and immediately evacuated eight crew members who apparently

requested to leave the NORTHERN VOYAGER, leaving on board of the

original crew Captain Haggerty, the engineer, and the first mate.

Two Coast Guardsmen, Petty Officers Adam Sirois and Brian Conners,

boarded the NORTHERN VOYAGER and attempted to assist in continuing

efforts to remove water from the ship using extra pumps supplied by

the Coast Guard. Although what was done slowed the rate of water

-4-

accumulation, the flooding continued and the NORTHERN VOYAGER began

to develop a port side list.

As the NORTHERN VOYAGER rolled and began to list, Coast

Guard Officer Dittes (aboard the 47-footer), Group Boston, and the

On Scene Coordinator began discussing the possibility that the

vessel would need to be evacuated. Several factors worried Dittes.

His most immediate concern was that the vessel's port side tilt

made both access to and escape from the NORTHERN VOYAGER more

difficult. This is because the fishing boat's only access port, a

door from the shelter deck through which the crew boarded and

departed from the boat, was on the starboard side. As the fishing

boat tilted more and more to port, the starboard side was raised

higher and higher off the surface of the water. No less worrisome

was his concern about progressive flooding, which was causing the

vessel to settle further in the water, with the danger that the

boat would capsize without warning before it sank, trapping anyone

aboard before they could be rescued.

Based upon these concerns, Dittes's conversations with

NORTHERN VOYAGER crew members who had already boarded the 47-

footer, and the continual progression of the flooding, Dittes

ordered his men to evacuate the NORTHERN VOYAGER's remaining crew

members. Captain Haggerty opposed the Coast Guard's decision to

evacuate his vessel and wanted to talk about other options for

pumping and salvage, including commercial salvage.

-5-

Dittes and Conners refused to discuss any other options

for salvage aboard the NORTHERN VOYAGER, and, again, ordered

Haggerty and his men off the boat. According to Captain Haggerty,

Conners informed him that if he did not cooperate, the Coast Guard

would "subdue [him] physically" in order to take him off the

NORTHERN VOYAGER. All Coast Guard personnel and the remaining

NORTHERN VOYAGER officers were then transferred to the Coast Guard

47-footer.

The NORTHERN VOYAGER was abandoned at 10:27 a.m.,

continued to sink, and capsized at 11:22 a.m., fifty-five minutes

after the last person left the vessel. Captain Haggerty did not

want to stay around and watch the boat sink. Accordingly, shortly

after the evacuation, the Coast Guard 47-footer headed back to

Station Gloucester with Captain Haggerty and the remaining members

of his crew on board.

According to plaintiffs' experts, there were various

steps that Captain Haggerty and his senior crew could have taken to

stabilize the situation if the Coast Guard had permitted them to

stay on the vessel. These steps included shutting certain doors

and making them watertight so that the flooding was confined to two

compartments in the stern of the boat. If these steps had been

taken, plaintiffs' experts asserted, the vessel could have floated

for at least another twenty hours even assuming that no pumping

capacity was brought to bear. This would have provided ample time

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for independent salvage resources to reach the vessel, even if they

had to come from as far away as Boston.

B. Alternative Salvage Efforts Were Underway

While Coast Guard rescue efforts were underway, radio

traffic about the NORTHERN VOYAGER was overheard by a commercial

salvor named Michael Goodridge based in Newburyport, Massachusetts.

At 9:03 a.m., just minutes after Captain Haggerty first radioed for

Coast Guard assistance, Goodridge placed a telephone call to

Station Gloucester. He told them that he had dive gear and pumps

and asked whether they needed assistance. Station Gloucester

responded that they were busy and they were going to "handle it."

At 9:04 a.m., Captain Haggerty informed the Coast Guard

by radio that he thought the water was coming up through the

vessel's rudder-post. He conjectured that the NORTHERN VOYAGER

"might ah, dropped the rudder." Earlier, he had explained that the

vessel had lost its steering capability.

Several minutes later, the Coast Guard transmitted an

Urgent Marine Information Broadcast stating that it "ha[d] received

a report that the Fishing Vessel Voyager is taking on water" and

requesting that "all vessels keep a sharp lookout, assist if

possible, [and] report all sightings to the U.S. Coast Guard."

This was the Coast Guard's only attempt to solicit outside

assistance.

-7-

Himself a diver, Goodridge, who continued to monitor

developments over his radio, recognized that the "vessel was going

to need a diver to correct the problem." Accordingly, he began

loading up his truck. At 9:15 a.m., Goodridge placed a telephone

call to Cape Ann Divers to see if anyone was available to assist

him. At 9:33 a.m., he reported to Station Gloucester that he was

en route, with diving gear, and that his estimated time of arrival

was one hour.

At 10:03 a.m., several minutes before the decision to

evacuate was made, Goodridge hailed Station Gloucester on radio

channel 16. He was told to switch to channel 12, a frequency not

being used by anyone on the scene. Goodridge stated that he was

boarding a vessel at Cape Ann Marina, and asked if he should bring

extra pumps or whether just diving assistance was necessary.

Station Gloucester responded that it "wasn't sure," the

situation was unstable, and it needed to keep "[the] frequency

clear."1 Goodridge interpreted this to mean that he shouldn't tie

up the channel. He stated that he would be there "in a little

bit," and he got off the radio. Shortly thereafter, everyone was

evacuated from the NORTHERN VOYAGER.

1

The comment about the need to keep the frequency clear was

conceded by the Coast Guard employee who made it to be a

misstatement. The Coast Guard employee said that it was a "bad

choice of words," that Goodridge's contact came at a time when she

needed to listen, and that what she should have done was to ask

Goodridge to "wait out."

-8-

At about 10:44 a.m., when Goodridge was about a mile from

the Northern Voyager, he contacted Station Gloucester by radio

hoping to establish contact with the captain. At that point,

Goodridge had just seen the 47-footer heading back with the crew.

Station Gloucester told him to call by "land line." When Goodridge

called back on his cellular phone, he was told that he could talk

to the captain when he arrived back at the station.

Goodridge said that he did not attempt to contact the 47-

footer directly because he had "[b]een told twice to stay off the

radio." He didn't bother going to the station to talk to the

captain because he assumed that, based on the Coast Guard reports,

the boat was too far gone for him to take the necessary time.

According to plaintiffs' expert, Goodridge was in a

position to reach the NORTHERN VOYAGER by 10:50 a.m., well before

it sank. Goodridge stated at his deposition that he had the skill

and equipment necessary to dive under the NORTHERN VOYAGER and plug

the hole formerly containing the rudder post, and the task would

have taken him only a couple minutes.2 However, he needed to talk

to somebody in the NORTHERN VOYAGER crew before making such an

attempt in order to find out if the engines were running. Without

this knowledge, it was too risky to dive near the propellers, as he

would have had to do to plug the rudder tube.

2

Plaintiffs' expert stated that there were many available

objects, such as a lobster buoy or life jacket, that Goodridge

could have used to plug the hole and that this would have stopped,

or at least considerably reduced, the influx of sea water.

-9-

Captain Haggerty stated that he did not know any

commercial salvors in the Gloucester area and thought that the

Coast Guard was working on getting commercial assistance. At no

time before the captain was put ashore in Gloucester, however, did

he learn, nor was he told by the Coast Guard, that a salvor was

approaching with additional pumps and with dive gear.3 If the

captain had been in contact with Goodridge and had been made aware

of his concerns about the engine running, the captain would have

shut off the engines before evacuating, rigged a Jacobs ladder in

order to facilitate a possible return to the boat, and communicated

this information to Goodridge.

C. Proceedings in the District Court

Northern Voyager, its insurers, and Thames Shipyard

brought this action in the District of Massachusetts against the

United States alleging that the sinking of the NORTHERN VOYAGER was

due to the negligence of the Coast Guard. Plaintiffs' primary

contention was that the Coast Guard exceeded its authority by

coercively compelling the NORTHERN VOYAGER's master to leave the

vessel against his will. Plaintiffs further alleged that the

Coast Guard negligently interfered with the efforts of Michael

Goodridge, the commercial salvor, and also deprived the NORTHERN

3

The record contains conflicting evidence on this point, but

we, of course, take the evidence in the light most favorable to the

losing party.

-10-

VOYAGER of other possible sources of assistance in its time of

peril.4

The United States contended that the Coast Guard was

legally authorized to issue the evacuation order by virtue of the

broad search and rescue powers conferred upon the Coast Guard by

Congress under 14 U.S.C. § 88 to "perform any and all acts

necessary to rescue and aid persons . . . " See note 7, infra. It

further argued that the decision to issue the order in these

circumstances was a decision protected under the discretionary

function exception. The United States moved for summary judgment

on the grounds that the suit was barred by the exception. In

respect to plaintiffs' arguments that the Coast Guard negligently

interfered with the commercial salvor's efforts, the United States

contended that these arguments failed under the "Good Samaritan"

doctrine requiring a would-be rescuer to have worsened the victim's

position.

The district court concluded that the Coast Guard's

decision to compel Haggerty and his crew to abandon the NORTHERN

VOYAGER was protected by the discretionary function exception.

4

In addition, plaintiffs alleged various intentional torts

including trespass to chattels, conversion, breach of fiduciary

obligations, bailment, and intentional interference with

contractual and/or advantageous relations. Our discussion, infra,

concluding that the Coast Guard's evacuation decision is protected

by the discretionary function exception disposes of most of these

claims. We do not think that the alleged facts support a claim of

intentional interference with contractual or advantageous

relations.

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Northern Voyager Ltd. P'ship v. Thames Shipyard & Repair Co., 214

F. Supp. 2d 47, 52 (D. Mass 2002). Though the court did not cite

to or evaluate the scope of 14 U.S.C. § 88, it did cite internal

government manuals as stating the need for broad discretion and

flexibility when conducting search and rescue operations. Id.

Applying the discretionary function test articulated in Berkovitz

v. United States, 486 U.S. 531, 537 (1988), the court concluded

that (1) the Coast Guard has complete discretion over all search

and rescue procedures; and (2) the Coast Guard's decision to

evacuate the NORTHERN VOYAGER is the type of "policy based

discretion" protected by the exception. Id. at 51-52. Once it

concluded that plaintiffs' claims are barred by the discretionary

function exception, the court granted the United States' motion for

summary judgment.

This appeal followed.

II.

The United States, as sovereign, is immune from suit

except as it consents to be sued, and the terms of its consent

define the federal courts' jurisdiction over suits against the

United States. United States v. Sherwood, 312 U.S. 584, 586

(1941). The Suits in Admiralty Act ("SAA") waives sovereign

immunity "[i]n cases where if such vessel were privately owned or

operated . . . or if a private person or property were involved, a

proceeding in admiralty could be maintained . . ." 46 U.S.C. Appx.

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§ 742. The Public Vessels Act ("PVA") allows recovery against the

United States for damages "caused by a public vessel of the United

States . . ."5 46 U.S.C. Appx. § 781.

Both waiver provisions apply here. See Wilson v. United

States, 23 F.3d 559, 561 (1st Cir. 1994) ("Both the [SAA] and the

[PVA] apply where a plaintiff brings a 'public-vessel-related suit

in admiralty against the United States.'") (internal citation

omitted). Although neither contains an express discretionary

function exception, it has been implied into both. See Limar

Shipping Ltd. v. United States, 324 F.3d 1, 6-7 & n.3 (1st Cir.

2003) (SAA); United States Fire Ins. Co. v. United States, 806 F.2d

1529, 1534-35 (11th Cir. 1986) (PVA) (reasoning that the

"separation of powers" concerns that justify reading a

discretionary function exception into the SAA warrant reading the

same exception into the PVA, especially given the close

relationship between the two statutes). We review de novo the

lower court's determination that the Coast Guard's actions are

protected by the discretionary function exception. See Wood v.

United States, 290 F.3d 29, 36 (1st Cir. 2002).

A. The Discretionary Function Exception: the Standard

Test

5

The PVA embraces cases where injury is caused by the crew of

a public vessel and not by the vessel itself. See Coumou v. United

States, 107 F.3d 290, 294 n.9 (5th Cir.), modified, 114 F.3d 64

(5th Cir. 1997); Harrington v. United States, 748 F. Supp. 919, 929

(D.P.R. 1990).

-13-

The purpose of the discretionary function exception is to

insulate certain governmental actions and decisions based on

considerations of public policy from tort liability by private

individuals. Berkovitz, 486 U.S. at 536-37. The exception is

intended to preclude "judicial 'second-guessing' of legislative and

administrative decisions grounded in social, economic, and

political policy." Limar Shipping, 324 F.3d at 6 (quoting United

States v. S.A. Empresa de Viacao Aearea Rio Grandense (Varig

Airlines), 467 U.S. 797, 814 (1984)). Thus, the discretionary

function exception "insulates the Government from liability if the

action challenged in the case involves the permissible exercise of

policy judgment." Berkovitz, 486 U.S. at 537.

Where, as here, the government avers that it is immune

from suit because the challenged conduct falls under the protection

of the discretionary function exception, we must determine whether

the disputed conduct involved the "permissible exercise of policy

judgment." Berkovitz, 486 U.S. at 539. In a series of cases, the

Supreme Court has established an analytical framework for

determining whether the conduct warrants discretionary function

immunity.

The court must initially identify the conduct that

allegedly caused the harm. United States v. Gaubert, 499 U.S. 315,

322 (1991). Then, to determine whether the exception applies,

the court employs a two prong test. First, the court must

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determine whether the challenged conduct involves an element of

judgment, meaning that it is "a matter of choice for the acting

employee." Berkovitz, 486 U.S. at 536. This Court has declared

that conduct is non-discretionary "if a federal statute,

regulation, or policy specifically instructed federal officials to

follow a specified course of action." Muniz-Rivera v. United

States, 326 F.3d 8, 15 (1st Cir.), cert. denied, 2003 WL 21692180

(U.S. Oct. 6, 2003) (No. 03-25). Second, the court "must determine

whether that judgment is of the kind that the discretionary

function was designed to shield," meaning that it involved

"governmental actions and decisions based on considerations of

public policy." Berkovitz, 486 U.S. at 536-37.

In addition, courts have read the Supreme Court's

discretionary function cases as denying protection to actions that

are unauthorized because they are unconstitutional, proscribed by

statute, or exceed the scope of an official's authority. See,

e.g., K. W. Thompson Tool Co. v. United States, 836 F.2d 721, 727

n.4 (1st Cir. 1988) ("It has been held that implicit in Varig and

Dalehite is the proposition that a 'decision cannot be shielded

from liability if the decisionmaker is acting without actual

authority.'") (quoting Red Lake Band of Chippewa Indians v. United

States, 800 F.2d 1187, 1196 (D.C. Cir. 1986)); Medina v. United

States, 259 F.3d 220, 225 (4th Cir. 2001) (stating that "[f]ederal

officials do not possess discretion to violate constitutional

-15-

rights or federal statutes") (quoting United States Fid. & Guar.

Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988)); Nurse v.

United States, 226 F.3d 996, 1002 (9th Cir. 2000) ("[G]overnmental

conduct cannot be discretionary if it violates a legal mandate.");

Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252,

1261 (2d Cir. 1975) ("It is, of course, a tautology that a federal

official cannot have discretion to behave unconstitutionally or

outside the scope of his delegated authority.").

B. The Decision to Forcibly Evacuate the NORTHERN

VOYAGER.

Following this framework, we focus on the decision to

forcibly evacuate the NORTHERN VOYAGER. Relying on Indian Towing

Co. v. United States, 350 U.S. 61 (1955), and United States v.

Sandra & Dennis Fishing Corp., 372 F.2d 189 (1st Cir. 1967),

appellants contend that the discretionary function exception

applies to decisions whether or not to undertake a rescue mission

but not to decisions made during the course of a rescue mission

once undertaken. Appellants further contend that the Coast Guard's

evacuation decision was not a policy decision. Finally, appellants

argue that the government cannot seek refuge in the exception

because the forcible evacuation was outside the scope of its

statutorily-delegated authority and, indeed, violated legal and

constitutional norms. We disagree.

1. Whether Indian Towing and Sandra & Dennis

Fishing Corp. Preclude Application of the

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Discretionary Function Exception to the

Decision at Issue.

We begin by addressing plaintiffs' argument based on

Indian Towing and Sandra & Dennis Fishing Corp. For the following

reasons, we do not think that these cases support plaintiffs'

argument that the discretionary function exception is inapplicable

to decisions made during the course of a rescue mission to the

extent those decisions implicate protected policy concerns.

Indian Towing involved a lawsuit alleging that the Coast

Guard negligently failed to maintain a lighthouse, causing the loss

of a ship. The Court held that the Coast Guard need not undertake

to provide lighthouse service. Indian Towing, 350 U.S. at 69.

However, having "exercised its discretion to operate [the] light .

. . and engendered reliance on the guidance afforded by the light,

[the Coast Guard] was obligated to use due care to make certain

that the light was kept in working order." Id.

Indian Towing is inapposite for two reasons. First, the

discretionary function exception was not at issue because the

government conceded that it did not apply. Id. at 64. Second, as

this Court has interpreted the case, through the lens of later

Supreme Court decisions, it illustrates a situation where there was

no exercise of policy judgment but rather involved purely technical

or scientific considerations. Ayer v. United States, 902 F.2d

1038, 1042 (1st Cir. 1990). Indeed, we have suggested that had a

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policy-based reason for failing to maintain the lighthouse been

articulated, the result might have been different. See id.

In Sandra & Dennis Fishing Corp., a Coast Guard patrol

boat took in tow a fishing vessel that was then in no immediate

danger of sinking and, through negligence (human error), caused the

vessel to strand on a shoal. This Court stated that the Coast

Guard had no duty to provide rescue services on demand. Sandra &

Dennis Fishing Corp., 372 F.2d at 195. However, we held that "if

the Coast Guard accepts a mission it should conduct its share of

the proceeding with acceptable seamanship." Id. at 197.

There is no hint in Sandra & Dennis Fishing Corp. that

the government attempted to rely on the discretionary function

exception. Nor is there any reason to think that the negligent

conduct upon which this Court affirmed liability (the failure to

check with the loran on the towed vessel when the loran on the

Coast Guard patrol boat went out) implicated protected policy

concerns as opposed to mere technical, navigational missteps.

Accordingly, neither Indian Towing nor Sandra & Dennis Fishing

Corp. stand for the proposition that a Coast Guard determination

made during the course of a mission may not be protected by the

discretionary function exception in otherwise appropriate

circumstances.

Indeed, to hold differently could be said to fly in the

face of the Supreme Court's decision in Gaubert, 499 U.S. at 325-

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26, which rejects a distinction between initiation of programs and

decisions made at an operational level. See also Varig Airlines,

467 U.S. at 813 ("[T]he basic inquiry concerning the application of

the discretionary function exception is whether the challenged acts

of a Government employee--whatever his or her rank--are of the

nature and quality that Congress intended to shield from tort

liability.") Accordingly, we turn next to the familiar two-prong

inquiry, supra p. 14-15, under Berkovitz and progeny. For the

following reasons, we conclude that both prongs are met.

2. Application of the Two-Prong Inquiry.

First, the Coast Guard has statutorily-granted discretion

to exercise its judgment in determining how it goes about search

and rescue ("SAR") operations. See 14 U.S.C. § 88 (providing that

the Coast Guard may perform any and all acts necessary to rescue

and aid persons and property). Further, internal manuals recognize

the discretionary nature of decisions made during the course of SAR

operations. The National Search and Rescue Manual notes that

"[b]ecause of the many variables encountered during SAR operations

and the individuality of each SAR case, the guidance provided in

this Manual must be tempered with sound judgment, having due regard

for the individual situation." 1 Joint Chiefs of Staff & U.S.

Coast Guard, National Search and Rescue Manual v, § 3.a (1991). The

Coast Guard Addendum to this manual provides that "Coast Guard

personnel are expected to exercise broad discretion in performing

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the functions discussed." U.S. Coast Guard, Coast Guard Addendum

to the National Search and Rescue Manual at 2.

Second, the determination that the peril to the

endangered seamen had reached such a level as to require a forced

evacuation involved a true policy choice. This case does not fall

within the "line of cases involving plaintiffs who challenge

official judgments that implicate technical safety assessments

conducted pursuant to prior choices." Shansky v. United States,

164 F.3d 688, 694 (1st Cir. 1999). "Such decisions come within a

category of objective professional judgments that, without more,

are not readily amenable to policy analysis." Id. Rather, it

involved the balancing of incommensurable values -- such as human

safety, protection of property, autonomy, and the allocation of

resources -- typically associated with policy decisions.6 See id.

at 695. The Coast Guard's manual sets forth a policy of giving

priority to the saving of human lives over the saving of property.

See infra p. 25. Applying such a policy in circumstances of danger

such as these calls for an evaluation of multiple factors that is

anything but purely technical and routine.

6

The last factor (allocation of resources) comes into play

especially because, despite appellants' suggestion to the contrary,

the Coast Guard, once on the scene, would have been hard pressed

simply to abandon the imperilled seamen. If the ship had capsized,

trapping the men inside or putting them overboard, the Coast Guard

would have been faced with a riskier, more costly rescue operation

that might have endangered the lives of Coast Guard personnel

seeking to rescue those members of the NORTHERN VOYAGER's crew who

had elected to remain on board.

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3. The Scope of 14 U.S.C. § 88.

Finally, we turn to appellants' contention that the

discretionary function exception does not apply because the Coast

Guard acted outside the scope of its statutorily-granted authority

or in derogation of other constitutional and legal principles.

This argument requires us to determine whether 14 U.S.C. § 88,

which provides inter alia that the Coast Guard may perform "any and

all acts necessary to rescue and aid persons and protect and save

property," permits the Coast Guard, when it deems such action

necessary to protect lives, to compel an unwilling master to

evacuate his vessel.7 This is a novel question in that, while

similar events may have arisen in the past, no federal cases

7

The pertinent part of § 88 provides in full:

(a) In order to render aid to distressed persons,

vessels, and aircraft on and under the high seas and on

and under the waters over which the United States has

jurisdiction and in order to render aid to persons and

property imperiled by flood, the Coast Guard may:

(1) perform any and all acts necessary to rescue and aid

persons and protect and save property;

(2) take charge of and protect all property saved from

marine or aircraft disasters, or floods, at which the

Coast Guard is present, until such property is claimed by

persons legally authorized to receive it or until

otherwise disposed of in accordance with law or

applicable regulations, and care for bodies of those who

may have perished in such catastrophes;

(3) furnish clothing, food, lodging, medicines, and other

necessary supplies and services to persons succored by

the Coast Guard; and

(4) destroy or tow into port sunken or floating dangers

to navigation.

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interpreting the Coast Guard's powers in this regard appear to

exist in the law books, nor have any specific regulations been

promulgated on the subject by the Coast Guard. Moreover, the

legislative history of § 88 does not address this particular

issue.8 On the one hand, the statute's literal language

(empowering the Coast Guard to "perform any and all acts necessary

to rescue and aid persons . . . ") can be said literally to

encompass such action. On the other, in our democratic society the

circumstances are limited in which governmental officials may

legally compel people, against their will, to abandon their homes

or other private property. If it were unconstitutional or contrary

to clear law for the Coast Guard to rescue unwilling mariners in

life-threatening situations, we would be loath to read such

authority into § 88.

Given the dearth of federal authority, we turn to state

law and practice in analogous rescue situations for guidance.

8

Section 88 was added to Title 14 in 1949. See Act of Aug. 4,

1949, c. 393, 63 Stat. 501. The Senate Report that accompanied the

legislation explains that previous "statutes were enacted over a

period of a century and cover[ed], in some cases, only limited

geographical areas, and in other cases only limited types of

assistance work," and that "section 88 authorizes the Coast Guard,

in the broadest possible terms without limitation as to method or

place, to save lives and property." S. Rep. No. 81-656, at 5

(1949), reprinted in 1949 U.S. Code & Cong. Serv. 1652, 1656. This

history suggests that the phrase "any and all acts" defines the

scope of Coast Guard authority and, is not, as plaintiffs contend,

merely an implementary provision. Further, it is plain that

Congress intended the scope of this power to be broad.

Nonetheless, nothing in the legislative history specifically

addresses the power to order forcible evacuation.

-22-

Almost every state in the United States has adopted statutes

providing for the exercise of police powers in the event of an

emergency or disaster (such as fire, flood, tornado, hurricane,

etc.) See Howard D. Swanson, The Delicate Art of Practicing

Municipal Law Under Conditions of Hell and High Water, 76 N.D.L.

Rev. 487, 490-93 & n.10 (2000) (citing statutes). Most of the

state statutory schemes provide that the governor of the state has

the ability to declare an emergency. See id. at 490. "Further,

most of the states also allow the exercise of emergency or disaster

authority by a local government." Id. One of the most common

forms of authority exercised in an emergency is the mandatory

evacuation of buildings, streets, neighborhoods, and cities. Id.

at 495, see also David G. Tucker & Alfred O. Bragg, III, Florida's

Law of Storms: Emergency Management, Local Government, and the

Police Power, 30 Stetson L. Rev. 837, 838 (Winter 2001) ("Local

decision-makers may be called upon to order evacuations or prevent

people from returning to damaged houses.").

In some states, there are statutes that expressly

delegate to local safety officers the authority to order

evacuations in an emergency. See, e.g., Alaska Stat.

§ 18.70.075(a)(2) (providing that a fire officer has the authority

to "order a person to leave a building or place in the vicinity of

a fire or emergency, for the purpose of protecting the person from

injury"); Conn. Gen. Stat. § 7-313b (similar); Del. Code Ann. tit.

-23-

16, § 6701A(2) (similar); N.H. Rev. St. Ann. § 154:7 (similar);

Tenn. Code Ann. § 6-21-703 (similar); W. Va. Code § 29-3A-1

(similar). In other states, where the issue is not expressly

addressed in any statute, the authority of a safety officer to

order an evacuation has been inferred from a statute delegating

general authority "to preserve the public peace." See, e.g., Ohio

Op. Atty. Gen. No. 87-099 (reasoning in this way and opining that

a sheriff "may order the evacuation of persons residing . . . in

the vicinity of a hazardous materials accident or emergency, when

reasonably necessary for the protection of the health, safety, and

well-being of such persons" and "may, in a reasonable manner,

remove to a safe area any persons who refuse to evacuate

voluntarily").9

The Coast Guard is a governmental agency and has been

granted by Congress a variety of public safety responsibilities and

9

We have no doubts about the constitutionality of such

authority. Courts have rejected due process challenges to summary

action taken in an emergency situation, see, e.g., Hodel v.

Virginia Surface Min. & Recl. Assn., 452 U.S. 264, 299-301 (1981)

(upholding the constitutionality of an emergency procedure which

allowed government inspectors to order the immediate cessation of

mining activities), and have similarly rejected Fourth Amendment

challenges to police action taken in response to a life-threatening

emergency. See, e.g., Mincey v. Arizona, 437 U.S. 385, 392 (1978)

("Numerous state and federal cases have recognized that the Fourth

Amendment does not bar police officers from making warrantless

entries and searches when they reasonably believe that a person

within is in need of immediate aid.") (internal footnotes omitted)

(citing cases); see also Wayne v. United States, 318 F.2d 205, 212

(D.C. Cir. 1963) (Burger, J.) ("The need to protect or preserve

life or avoid serious injury is justification for what would be

otherwise illegal absent an exigency or emergency.").

-24-

powers, including, of course, the specific power under discussion

to rescue and aid persons and property.10 In exercising its rescue

powers, it construes its own role as giving priority to the saving

of lives over the saving of property. See U. S. Coast Guard, Boat

Crew Seamanship Manual at 18-92. In circumstances such as the

present, Coast Guard operations are relevantly different from the

situation in which a private vessel or a commercial salvor comes to

the aid of a distressed vessel.11 Under the circumstances, we think

10

See, e.g., 14 U.S.C. § 2 ("Primary Duties") (stating, inter

alia, that the Coast Guard "shall administer laws and promulgate

and enforce regulations for the promotion of safety of life and

property on and under the high seas and waters subject to the

jurisdiction of the United States covering all matters not

specifically delegated by law to some other executive department"

and "shall develop, establish, maintain, and operate, with due

regard to the requirements of national defense, aids to maritime

navigation, icebreaking facilities, and rescue facilities for the

promotion of safety on, under, and over the high seas and waters

subject to the jurisdiction of the United States").

11

It is a general principle of admiralty law that an owner of

a vessel has a right to decline salvage assistance and that "a

salvor who acts without the express or implied consent of the owner

is a 'gratuitous intermeddler' who is not entitled to any salvage

award." 2 Thomas J. Schoenbaum, Admiralty & Maritime Law § 16-1 at

360-61 (3d ed. 2001). Interestingly, however, there is dicta in

several cases limiting this principle to instances where only the

owner's property interests are at stake. See, e.g., Smit Americas,

Inc. v. M/T Mantinia, 259 F. Supp. 2d 118, 134 (D.P.R. 2003)

(suggesting that an owner's right of refusal is limited in

situations involving imminent danger of large losses of the

property of third persons); Ramsey v. Pohatcong, 77 F. 996

(S.D.N.Y. 1896) (holding that tugboat was "bound to respect the

master's decision [to refuse salvage assistance]" where case

involved only ordinary property interests and "did not involve

imminent danger to life, nor the danger of large losses of the

property of third persons"); see also Martin J. Norris, The Law of

Seaman, § 9:39 (4th ed. 2002) ("It is the privilege of the master

to accept [proffered salvage services] or not, so long as the

vessel in distress is then in a position where nothing but ordinary

-25-

it reasonable to assume that Congress, in granting the Coast Guard

the broad authority to undertake "any and all acts necessary to

rescue and aid persons and protect and save property," intended to

confer powers analogous to those commonly possessed by state public

safety officials, namely, the power to rescue a person even against

his will in life-threatening circumstances.

We do not, however, accept that the phrase "any and all"

gives the Coast Guard carte blanche authority to engage in forcible

evacuations in less than life-threatening emergencies. A forcible

evacuation from a private vessel constitutes a seizure of the

person. Under the circumstances, the body of case law developed

under the "emergency aid" exception to the Fourth Amendment's

warrant requirement both lends support for evacuation authority and

cabins it. That exception requires an objectively reasonable

belief by safety officers that a true emergency exists and there is

an immediate need for assistance or aid. See, e.g., McCabe v.

Life-Line Ambulance Serv., Inc. 77 F.3d 540, 545 (1st Cir. 1996)

(recognizing that "exigent circumstances" exceptions, by their

nature, turn upon the objective reasonableness of ad hoc, fact-

specific assessments); United States v. Richardson, 208 F.3d 626,

629 (7th Cir. 2000) (explaining that, "as is normally the case for

Fourth Amendment inquiries, the test is objective"); Russoli v.

property interests are involved.") (emphasis added). In all

events, we need not pursue this suggestion further in light of our

conclusion that the Coast Guard is not the equivalent of a

commercial salvor.

-26-

Salisbury Township, 126 F. Supp. 2d 821, 846-59 (E.D. Penn. 2000)

(suggesting without deciding that the emergency aid doctrine might

justify a seizure, for the person's own good and the good of

others, where safety officers reasonably believe that there is a

life-threatening emergency).

In situations as the present, where we are satisfied

that such a life-threatening emergency could reasonably be found to

exist, infra p. 28, the Coast Guard possessed under § 88 the

discretionary authority to order (or not order) a forced

evacuation. Within the scope of that discretionary authority, we

hold that the Coast Guard could not be held liable for the

consequences of its decision.

4. The Instant Scenario

The facts of this case lead us to conclude that the Coast

Guard reacted rationally, and that human life could reasonably have

been deemed to be at serious risk had Captain Haggerty and his crew

not been removed. The NORTHERN VOYAGER, without steering, was

rolling in six to eight foot ocean seas. Water was pouring in.

She was developing an increasing port-side list. The fishing

boat's only access port was on the starboard side. The Coast

Guardsmen on the vessel reported progressive flooding, raising the

possibility that the ship would capsize, trapping all on board.

While arguments can perhaps be made in the light of 20-20 hindsight

tending to minimize the potential dangers had the master and his

-27-

fellows been allowed to remain, we see no basis to doubt the

objective reasonableness of the Coast Guard's on the scene decision

to remove them.

Under the circumstances (and in light of our conclusions

above), we hold that (1) the discretionary function exception

applies to the decision at issue; (2) the Coast Guard made a policy

choice when it determined the time had come, in the interest of

safety, to take the men off; (3) the Coast Guard acted within the

broad rescue powers specified by Congress in § 88; and (4) the

Coast Guard was not guilty of violating rights applicable in more

ordinary circumstances (i.e. where the threat to life was less).

C. The Coast Guard's Conduct Vis-a-vis the Private

Salvor.

Plaintiffs' alternative argument is that evidence of

Coast Guard alleged discouragement or interference with the efforts

of Michael Goodridge, the commercial salvor, warrants a remand for

a determination of liability. The government has never advanced

any protected policy reasons, and we can think of none, to explain

its conduct vis-a-vis the commercial salvor. Rather, to the extent

that conscious decisions were made, rather than mistakes,

oversights, or misstatements, the decisions appear to be ordinary

professional judgments. Accordingly, we turn to the issue of

liability.

Plaintiffs suggest that the Coast Guard was negligent in

delaying the start of Goodridge's response, instructing Goodridge

-28-

to stay off the radio, and suppressing effective communication with

him. Plaintiffs also suggest that Captain Haggerty detrimentally

relied on the Coast Guard's assurance that it was working on

getting commercial assistance, and, as a result, did not make

independent radio calls of his own for such commercial assistance.

Although we are unpersuaded by plaintiffs' arguments based on

allegations of delay and reliance, we find sufficient evidence in

the record to create a factual issue on the question whether the

Coast Guard's interference with the commercial salvor's

communications prevented Goodridge from pursuing salvage efforts

and using his diving capacity to find and plug the leak. We

explain, beginning with the relevant standard of negligence and

then applying it to the facts of this case.

1. The Good Samaritan Rule.

The parties agree that the standard of negligence in this

context is the Good Samaritan rule "which makes one person liable

to another for breach of a duty voluntarily assumed by affirmative

conduct, even when that assumption of duty is gratuitous." Good v.

Ohio Edison Co., 149 F.3d 413, 420 (6th Cir. 1998) (quoting

Patentas v. United States, 687 F.2d 707, 713-14 (3d Cir. 1982)).

This doctrine is articulated in § 323 of the Second Restatement of

Torts which provides:

One who undertakes, gratuitously or for

consideration, to render services to another

which he should recognize as necessary for the

protection of the other's person or things, is

-29-

subject to liability to the other for physical

harm resulting from his failure to exercise

reasonable care to perform his undertaking, if

(a) his failure to exercise such care

increases the risk of such harm, or (b) the

harm is suffered because of the other's

reliance upon the undertaking.

Restatement (Second) of Torts § 323.

A parallel rule in § 324A of the Second Restatement deals

with liability to third persons:

One who undertakes, gratuitously or for

consideration, to render services to another

which he should recognize as necessary for the

protection of a third person or his things, is

subject to liability to the third person for

physical harm resulting from his failure to

exercise reasonable care to protect his

undertaking, if (a) his failure to exercise

reasonable care increases the risk of such

harm, or (b) he has undertaken to perform a

duty owed by the other to the third person, or

(c) the harm is suffered because of reliance

of the other or the third person upon the

undertaking.

Restatement (Second) of Torts § 324A.

Under these provisions, Coast Guard liability based on

negligence may be established provided it can be shown that the

Coast Guard's negligence "increase[d] the risk" of harm.

Plaintiffs "must show that the Coast Guard through affirmative

actions caused some physical change to the environment or some

other material alteration of circumstances." Good, 149 F.3d at 421

(citations and internal quotation marks omitted). "Thus, '[t]he

test is not whether the risk was increased over what it would have

-30-

been if the defendant had not been negligent,' but rather whether

'[t]he risk [wa]s increased over what it would have been had the

defendant not engaged in the undertaking at all.'" Id. (quoting

Myers v. United States, 17 F.3d 890, 903 (6th Cir. 1994)); see also

Sagan v. United States, 342 F.3d 493, 498 (6th Cir. 2003) (quoting

Myers).

Coast Guard liability may also be established in

appropriate circumstances on a theory of induced "reasonable,

justifiable" detrimental reliance. Myers, 17 F.3d at 904. The

reliance must have caused another "to forgo other remedies or

precautions against the risk." Id. at 903 (quoting Restatement §

324A cmt. e). In the maritime context, detrimental reliance has

been found where the "Coast Guard's actions caused potential

rescuers to rest on their oars . . . in reliance on the Coast

Guard's undertaking and its presumed, unless affirmatively

disclaimed, competency." Fondow v. United States, 112 F. Supp. 2d

119, 130 (D. Mass. 2000) (citations and internal quotation marks

omitted).

A related principle, set forth in § 327 of the Second

Restatement, is also relevant and has been applied in the maritime

context. See Hood v. United States, 695 F. Supp. 237, 43-44 (E.D.

La. 1988). Section 327 provides:

One who knows or has reason to know that a

third person is giving or is ready to give to

another aid necessary to prevent physical harm

-31-

to him, and negligently prevents or disables

the third person from giving such aid, is

subject to liability for physical harm caused

to the other by the absence of the aid which

he has prevented the third party from giving.

Restatement (Second) of Torts § 327.

Our decision in Sandra & Dennis Fishing Corp. is

consistent with the Good Samaritan rule as articulated above. In

Sandra & Dennis Fishing Corp., the Coast Guard clearly worsened the

position of the towed vessel which, when taken in tow, was in no

imminent peril. See Rodrigue v. United States, 968 F.2d 1430,

1434-35 (1st Cir. 1992) (observing that, in Sandra & Dennis Fishing

Corp., "the district court made the significant finding that there

would have no stranding but for the Coast Guard's misconduct").

Additionally, in Sandra & Dennis Fishing Corp., we emphasized that

the Coast Guard had induced reliance upon a belief that it "would

perform its functions with reasonable care." 372 F.2d at 195; see

also Daley v. United States, 499 F. Supp. 1005, 1010 n.6 (D. Mass.

1980) (Aldrich, J., sitting by designation) (explaining that this

comment in Sandra & Dennis must be understood against a record

which showed that the disabled vessel had refrained from seeking

other available assistance).

More recently, this Court discussed "the Good Samaritan

rule" in a case where parents of an airman who drowned after being

carried out to sea by strong currents at a recreational beach sued

the Air Force based on its four-hour delay after notification in

-32-

sending a rescue helicopter. See Rodrigue, 968 F.2d at 1434-35.

We emphasized that the plaintiffs could not state a case simply by

alleging that the Air Force was negligent. See id. at 1435.

Rather, it was necessary to show, more likely than not, that by its

negligence the Air Force had worsened the airman's position. Id.

Finally, we note that in evaluating Coast Guard conduct

under the Good Samaritan rule, courts must consider the Coast

Guard's actions and decisions in light of the information known

during the rescue and not with the benefit of hindsight. See

Fondow, 112 F. Supp. 2d at 131 (citing cases). Accordingly,

"conduct that might ordinarily be negligent may be non-negligent in

the pressure cooker circumstances of a rescue." Id.

2. The Standards Applied.

a. The Reliance Argument.

The evidence of detrimental reliance is insufficient as

a matter of law to support a finding of Coast Guard liability, and,

thus, by itself would not warrant a remand. In his sworn

declaration, Captain Haggerty states that "[b]ecause the Coast

Guard had told me that they were working on arranging commercial

assistance, I did not make any calls on the radio." However, he

does not state exactly what the Coast Guard said or when. See Fed.

R. Civ. P. 56(e) (requiring affidavits to set forth "specific facts

showing that there is a genuine issue for trial").

-33-

The only other evidence we have on this point is

Haggerty's vague deposition testimony that he "asked Station

Gloucester if there was anybody available, if there was any more

pumps" and the response was "[w]e're working on that." The Coast

Guard's response, without more, falls short of a representation

that the Coast Guard was working on obtaining commercial

assistance.12 We do not think that a reasonable jury could find

that Haggerty justifiably relied on the Coast Guard's vague

response and reasonably refrained from making any efforts of his

own to contact commercial assistance.

b. The Delay

Similarly, the evidence tending to suggest that the Coast

Guard delayed Goodridge's departure by reason of its initial

response discouraging his participation in the rescue operation is

insufficient as a matter of law to warrant a remand. Goodridge's

initial phone call to the Coast Guard was at 9:03 a.m. He was told

they were going "to handle it." But by 9:15 a.m., notwithstanding

that response, he was on the telephone to Cape Ann Divers to see

who might be available to assist him. In addition, some time

during that period, Goodridge took time to load his truck before

notifying the Coast Guard at 9:33 a.m. that he was on his way to

12

In fact, depending upon when the Coast Guard's statement was

made, a natural assumption is that it was talking about the Coast

Guard cutter ADAK, which arrived late on the scene with additional

pumps.

-34-

assist. Viewing the evidence in the light most favorable to

plaintiffs, the delay was, at most, twelve minutes. We do not

think a reasonable jury could find that this brief delay was

material. Plaintiffs' expert opined that Goodridge's boat was in

a position to reach the NORTHERN VOYAGER on or about 10:50 a.m.

Even if Goodridge had arrived at the vessel roughly twelve minutes

earlier than expected, at 10:38 a.m., it would have been after the

evacuation. Indeed, by 10:38 a.m. the Coast Guard 47-footer was

already en route to Station Gloucester with the Northern Voyager

crew on board.13

We add, moreover, that we see nothing wrong in the Coast

Guard's response at 9:03 a.m. that they were going "to handle it."

Captain Haggerty had, in fact, called the Coast Guard; they were

planning to go to the NORTHERN VOYAGER's assistance; and at 9:03

a.m. the Coast Guard had yet to be informed as to many of the

13

Our dissenting colleague suggests that, in addition to a

twelve-minute delay of Goodridge's departure from Newburyport, the

record supports a finding that the Coast Guard caused further delay

once Goodridge arrived at his boat at Cape Ann Marina by its

indefinite response to his query as to whether additional pumps

were needed or just diving assistance. Appellants made no argument

along these lines, and we are not persuaded. The transcript of the

radio communication indicates the Coast Guard responded reasonably

to Goodridge's inquiry by saying "we're not sure at this time."

Although the dissent suggests this indefinite response caused

Goodridge to spend unnecessary extra time loading pumps on board

his boat, we do not see how the Coast Guard can be faulted for its

response, especially given record evidence that the Coast Guard's

own pumps kept failing and the possibility that, even if diving

assistance were successful, some additional pumping assistance

might be required.

-35-

details that might have indicated a need for Goodridge's additional

assistance.

c. Alleged Interference With/Failure to

Facilitate Communications Between Goodridge

and the NORTHERN VOYAGER.

Plaintiffs have a stronger argument of Coast Guard

interference with Goodridge's efforts based on Station Gloucester's

misstatement to Goodridge at 10:03 a.m. that it "need[ed] to keep

this frequency clear." See note 1, supra. As noted, one who

negligently prevents or disables a third person from giving aid

necessary to prevent physical harm is subject to liability for that

harm caused by the absence of the prevented aid. See Restatement

(Second) of Torts § 327, supra p. 32.14 Here a fact-finder could

determine that the Coast Guard's negative responses to Goodridge,

after assuming control itself of the rescue operation, prevented or

disabled Goodridge from giving aid that could have prevented the

NORTHERN VOYAGER from sinking.

By 10:03 a.m., Coast Guard personnel had been told by the

captain that the vessel "might, ah, dropped the rudder." And in

his 10:03 a.m. transmission to the Coast Guard, Goodridge indicated

14

Although § 327 is arguably, by its terms, limited to physical

harm to a person, it applies to claims involving property damage

through the operation of Restatement (Second) of Torts § 497 ("The

rules which determine negligence of conduct threatening harm to

another's interest in the physical condition of land and chattels

are the same as those which determine the negligence of conduct

which threatens bodily harm.").

-36-

both that he was on his way and could offer diving assistance.

Diving capability, given the character of the leak -- an open

rudder tube allowing a pathway for the sea water to enter the ship

-- could be found to have been just what the NORTHERN VOYAGER

needed. The record contains expert testimony that such a leak

could be contained by a diver's inserting of objects like a life

preserver or lobster buoy into the opening. Goodridge testified he

had the equipment and skill to have plugged the rudder leak in a

matter of minutes. Yet the Coast Guard's only response was to tell

Goodridge to clear the air waves.

In his deposition, Goodridge testified that the reason he

did not later seek to radio the master of the NORTHERN VOYAGER,

after the master had been evacuated to the Coast Guard's 47-footer,

was that "he [had] been told twice to stay off the radio." We

think there is sufficient evidence for a reasonable fact-finder to

find that the Coast Guard's rebuff at 10:03 a.m. discouraged

Goodridge from further attempts to communicate with the Coast Guard

or, directly, with the NORTHERN VOYAGER, as he motored to the

scene. Had he done so, plans might have developed that would have

led to saving the vessel. In particular, had Goodridge

communicated with Captain Haggerty, or even a knowledgeable Coast

Guard officer involved in the rescue operation, advance plans could

-37-

have been discussed for Goodridge to dive under the NORTHERN

VOYAGER while it was still afloat.15

The Coast Guard's witness, Chief Warrant Officer Dittes,

conceded that the information that Goodridge was coming was "a

significant piece of information" and the sort "they would normally

pass to the person that's in trouble." Yet the Coast Guard did not

advise the NORTHERN VOYAGER that Goodridge was on the way, much

less did it note the fact that Goodridge had a diving capability

which might be put to good use. Had Captain Haggerty been alerted

that Goodridge was coming, and had he then communicated by radio

with Goodridge, advance plans could have been laid for Goodridge to

dive under the NORTHERN VOYAGER and plug the leak. There is

evidence from which to infer that even if Goodridge arrived shortly

after Haggerty had been removed from his sinking vessel, the dive

might have been consummated had Haggerty prepared for it before

leaving the NORTHERN VOYAGER. See note 15, supra.

15

In his affidavit, Captain Haggerty stated in pertinent part:

If Mr. Goodridge had been allowed to call me

on the radio or by cellphone, I could have

communicated with him and learned what he

needed. If this had happened, I could have

and would have shut off those engines, rigged

a Jacobs ladder, and communicated this to him,

even if we were nevertheless to be forced off

the vessel thereafter.

Aff. of Captain Haggerty ¶ 8.

-38-

We do not suggest the Coast Guard had an independent duty

of its own to provide a commercial diver.16 Even if it exercised

poor judgment in not doing so, it would not be civilly liable

unless its negligence worsened the situation over what it would

have been had the Coast Guard not come to the aid of the NORTHERN

VOYAGER. But its announcement to Goodridge that it was "handling"

the rescue operation and its later insistence when Goodridge called

that he keep the frequency clear, coupled with its failure to tell

Captain Haggerty about Goodridge, could be found to have

discouraged Goodridge from further attempts to communicate and so

to assist the NORTHERN VOYAGER. The Coast Guard had a duty not to

throw roadblocks in the path of Goodridge's independent efforts to

help. A fact-finder might find that by announcing it was handling

the rescue, and then that it needed to keep the frequency clear,

the Coast Guard in effect declared exclusive control over rescue-

related communications, leading Goodridge to forgo further efforts

either to call the NORTHERN VOYAGER directly or to discuss salvage

options with Coast Guard officers handling the rescue.

16

The current version of the Coast Guard Addendum to the United

States National Search and Rescue Supplement provides that "SMC's

[i.e., Search and Rescue Mission Coordinator's] must remain

familiar with all SAR assistance resources within the SMC's [area

of responsibility] . . . and shall direct those resources that the

SMC believes are needed to the scene of a vessel in distress."

Coast Guard Addendum § 4.2.7.1. Commercial providers are an

assistance resource. Id. at § 4.2.3.3. However, the National SAR

manual and the Addendum do not define a standard of care owing to

the public. See, e.g., In re American Oil Co., 417 F.2d 164, 170

(5th Cir. 1969); Daley, 499 F. Supp. at 1010.

-39-

The Coast Guard's comment about the need to keep the

frequency clear came at a critical time when the decision whether

to evacuate was under consideration. If Goodridge had not been

discouraged from further contact at this time, before the

evacuation, there is evidence suggesting the outcome could have

been different. Had Captain Haggerty spoken to Goodridge or even

been told by the Coast Guard he was on the way with a diver, he

could have notified Goodridge that he wished his assistance. By

itself, such an expression would likely have caused Goodridge to

have increased and prolonged his efforts to reach and assist the

sinking vessel. Further, communication could have allowed

Goodridge to arrange with Captain Haggerty to dive under the

vessel. Even if the Coast Guard still believed that safety

considerations required Haggerty to leave the vessel before

Goodridge could reach it, the captain stated in his affidavit that

he could have taken steps to facilitate a dive before leaving by,

for example, making sure to shut off the engines (and to assure

Goodridge of the fact), and rigging a Jacobs ladder in order to

facilitate a possible return to the vessel. Thus, a fact-finder

could determine that even without Haggerty on board, a dive to plug

the leak could have been arranged. Indeed, the record supports a

possible inference that the first step, alone, would have been

sufficient, and that if Goodridge had been engaged by Haggerty and

had then simply been assured that the main engines were turned off,

-40-

he would have been willing to dive under the vessel and seek to

plug the rudder tube, thereby checking the influx of water and

quite possibly stabilizing the situation so as to permit further

salvage efforts that would have ultimately saved the vessel.

A similar argument can be made based on Station

Gloucester's unhelpful response to Goodridge on or about 10:47 a.m.

when Goodridge contacted the station by radio hoping to get in

touch with the captain. At this point, both Goodridge and the

captain, who was by then on board the 47-foot Coast Guard vessel,

were roughly one mile from the sinking NORTHERN VOYAGER. Station

Gloucester first told Goodridge to call back by "land line" and,

then, when Goodridge called by cellular phone, told him that he

could speak to the captain back at the station. Captain Haggerty

was not immediately informed of the call nor were efforts made to

allow contact via the radio of the Coast Guard's vessel bearing

Haggerty. A fact-finder could reasonably infer that the Coast

Guard's response to Goodridge had the effect of interfering with

the last opportunity to arrange for a dive. The only way in which

Goodridge could have contacted the captain meaningfully once he was

aboard the Coast Guard vessel would have been via the latter's

radio. At 10:47 a.m., with both Goodridge and the captain not far

from the scene, it remained possible that, had they spoken,

Goodridge might still have taken effective measures to dive and

-41-

plug the leak. Or, at least, the record suffices to raise a

factual issue on this point.

In sum, we think the evidence, viewed in the light most

favorable to appellants, was such that a reasonable fact-finder

could conclude that the Coast Guard had reason to know that a third

party was ready to give aid of a potentially useful type that the

Coast Guard could not provide, and that it negligently engaged in

actions that tended to prevent or disable such person from giving

such aid. Further, we think that a fact-finder could conclude from

such evidence, viewed most favorably, that this negligence was a

proximate cause of the sinking of the NORTHERN VOYAGER. Under the

circumstances, a remand for further proceedings is warranted.

It is true that under the Good Samaritan rule the

appellants have the burden of demonstrating that the Coast Guard

increased the risk of the NORTHERN VOYAGER's sinking over what it

would have been had there been no Coast Guard involvement at all.

Arguably, appellants have not established that, absent the Coast

Guard's pumping assistance, the NORTHERN VOYAGER would have stayed

afloat for a sufficient time to permit Goodridge to reach it and

effectively plug the leak, (i.e., that the loss of the NORTHERN

VOYAGER could have been prevented by the private salvor, acting

alone, had the Coast Guard not become involved). However,

according to plaintiffs' experts, there are various things that

Captain Haggerty and his crew could have done to contain the

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flooding temporarily and stabilize the situation, such as closing

certain doors and making them watertight. While there is little or

no evidence in the record that the captain and his crew actually

did or thought of any of these things at the time of the emergency,

there was evidence to suggest that at least one of the doors was

not shut because of the presence of the hose of a Coast Guard pump.

While the evidence is perhaps minimal that the ship would have

survived until Goodridge could have saved it without help from the

Coast Guard's pumps, we find it sufficient, viewed in the light

most favorable to appellants, to establish a factual issue and

warrant a trial on the question of whether the Coast Guard worsened

the plight of the NORTHERN VOYAGER by its negative handling of

Goodridge's attempts to become involved by radio.

CONCLUSION

For the foregoing reasons, we affirm so much of the

district court opinion as concluded that the Coast Guard's

decision to forcibly evacuate the crew is protected by the

discretionary function exception but remand for further proceedings

on plaintiffs' claim that Coast Guard interference with

communications between the commercial salvor and NORTHERN VOYAGER

resulted in the sinking of the ship.

Affirmed in part, vacated in part, and remanded for

further proceedings consistent with this opinion.

Opinion concurring in part and dissenting in part follows.

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