COAST GUARD WINS ONE, LOSES ONE (Spring 97 issue)
By Craig Lynch and Capt. Kirk Greiner

The duty of the U. S. Coast Guard regarding search and rescue is set forth in 14 USC 88 which permits the service to rescue persons or property in distress. The statute is permissive; the duty to perform search and rescue (SAR) is not mandatory. Two recent cases illustrate very different interpretations of what the Coast Guard's responsibilities may be regarding SAR missions.

Coast Guard Wins One

The first case involved the sinking of a 32 foot Bristol Bay gillnetter which sank by the stern while hauling in a heavily laden net in a choppy following sea. Although the vessel sank very rapidly after taking two waves over the stern, one crew member was able to broadcast a MAYDAY call with an accurate set of loran coordinates. The four persons on board entered the 49 degree water and drifted apart in two groups of two. They were wearing work clothing as they did not have adequate time to don their immersion suits which were stowed below deck. There was an EPRIB aboard, but it failed to function properly and no emergency signal was broadcast from it.

A local law enforcement agency received an unconfirmed citizen relay of the distress call and notified the Coast Guard. A State enforcement vessel in the area began steaming toward the reported distress but was told by the Coast Guard, "standby, we have an aircraft on the way." A C-130 aircraft was dispatched to assist another vessel in the vicinity. The enforcement vessel subsequently anchored a few miles from the broadcast position of the sinking gillnetter as a result of the Coast Guard's message to them.

The C-130 arrived on scene, dropped a pump to the other boat in distress, heard that a third vessel was no longer in need of assistance, and in the confusion (caused in part be erroneous radio reports), departed for home, thinking all was well. Two hours later, two of the crewmen were rescued by a fishing vessel transiting the area. When the Coast Guard eventually realized its error and launched a helicopter to search, the maximum survival time had elapsed and the two remaining crew members had died before the helicopter arrived on scene.

In the subsequent lawsuit plaintiff argued, among other things, that the Coast Guard was negligent because its search was not conducted in compliance with the National Search and Rescue Manual. Twenty nine violations of the manual were found. They also claimed that the Coast Guard wrongly prevented the nearby state law enforcement vessel from proceeding to assist.

The government argued that the mistakes made by the Coast Guard were minor in nature and that they had no bearing on the fate of the two men in the water. They further argued that the numerous oversights and deviations from the procedures set forth in the National Search and Rescue manual were not mandatory, given the individuality of each rescue mission.

In a lengthy ruling, the judge determined that the Coast Guard was not negligent even though numerous errors were made. He ruled that the standard of care in a rescue mission is the Good Samaritan standard, previously set forth in Berg vs. Chevron, 759 F.2d at 1425, 9th cir (1985). The Coast Guard was acting as "Good Samaritans" and therefore would not be liable unless (1) they actually caused the condition of the victims to worsen, or (2) for reckless or wanton conduct in performing the rescue.

It is surprising that highly trained and paid professionals in an agency funded and equipped to perform search and rescue can be considered Good Samaritans on an equal basis with unpaid, untrained private citizens making a good faith effort to assist another in distress.

This case was made significantly more difficult in discovery because the radio tapes were erased early, notes prepared by Coast Guard personnel were shredded, and information which existed was withheld. Standard procedure is to maintain radio tapes for 30 days or, where there is an incident of significance, indefinitely. Plaintiff attorneys must make immediate requests for information and should hire a knowledgeable expert who can direct them on what should exist.

Coast Guard Loses

One On August 21, 1994, Juneau Alaska was holding its famous Salmon Derby with awards for the largest fish caught. Most of the boats were operating from Auke Bay, just north of Juneau.

The Coast Guard had approved the derby and made extensive plans for patrols during the three day derby. Coast Guard Auxiliary boats were used in addition to their own boats. The Auxiliary is a volunteer organization of civilian sponsored by the Coast Guard to promote safe boating. An operations plan was drawn up which set forth areas for each patrol and a communications plan.

Coast Guard Group Ketchikan had overall responsibility for search and rescue cases in the derby area even though they were located several hundred miles south of Juneau. Station Juneau was one of the group's units and had several of its boats on patrol. The operations plan called for Station Juneau to be the Patrol Commander who would coordinate both the Coast Guard and the Auxiliary boats in the area of the derby.

One of the major problems was the lack of communications in some of the areas because of the mountainous terrain on the islands and mainland. Group Ketchikan had no direct communications with units patrolling the derby. Even Station Juneau had no communications with boats to the north in the derby area. To solve this problem, the USCGC LIBERTY was tasked to act as a communications platform in the derby area. In addition the Coast Guard District office, located in Juneau, had a communications center which used "high sites", remote antennas located to provide maximum coverage. It frequently acted as a relay forwarding radio traffic to the necessary units.

Small craft weather warnings were posted on the 21st. Wind in the afternoon was reported to be 25 to 30 knots and the seas were 3 to 4 feet. Because the area has offshore islands, no swells were present.

Two men set out on the 21st in a 18' 6" runabout powered by an outboard motor to fish in the derby. The boat had a small cabin on it with an accordion type door forward. They had no radio. About 1:30 p.m., the engine failed. The men flagged down a passing boat which was in the derby which took them under tow but as far as an offshore anchored fish tender which was involved in receiving fish from the derby contestants. While in route to the tender, the towing boat called the Coast Guard and was answered by the district radio station. Apparently, the USCGC LIBERTY was not acting as a communications relay as assigned. It requested the Coast Guard tow the boat from the tender.

A 48' Coast Guard Auxiliary vessel on patrol in the area heard the radio communications and told the Coast Guard they would go to the fish tender and pick up the tow. The auxiliary boat, operated by an Auxiliary member and his wife who was also an Auxiliary member, was under orders to assist in the derby. Under standards issued by the Coast Guard, Auxiliary boats operating under orders are not permitted to have guests aboard unless specifically approved by the Coast Guard. Never-the-less, the operator did have a Coast Guard chief petty officer, his wife and children aboard without the consent of the Coast Guard. The petty officer guest was operating the boat inside the cabin where the radio was located and was the person who told the Coast Guard they would undertake the tow. The Auxiliary owner did not become aware they were to undertake a tow until sometime later.

The Coast Guard District Communications Center relayed radio traffic which they received to Group Ketchikan by phone but not to Station Juneau, the Patrol Commander. However, Station Juneau did catch parts of the radio transmissions and phoned the district radio station and inquired as to what was going on. They were told by the radio watch stander that if something occurred which was in their area of responsibility, they would be told. Station Juneau was not told of the prospective tow.

The disabled runabout was initially tied up on the weather side of the tender at 2:04 p.m. which caused it to roll and bang against the tender, it was later shifted to the lee side and rode there nicely in almost calm water.

The Auxiliary boat arrived on the scene to under take the tow. No-one in the Coast Guard performed a risk analysis as required by existing Coast Guard policy. Factors to be considered before a tow was authorized should have included the on-scene weather, the direction and length of the tow, the size of each of the boats, communications available between the boats, whether people could be safely left on the towed vessel, training and experience of the towing crew, whether it was an emergency tow to save the vessel, and the condition of the towed vessel.

Additionally, neither the watch stander at Group Ketchikan nor in the district radio station had read the operations order which made Station Juneau the Patrol Commander responsible for activities relating to the derby. Because of this, the Station was not informed of the prospective tow. In fact, a second call was made to the district radio station by Station Juneau's Executive Officer requesting information on the activities. As a result, he was asked to fax a copy of the operations order to Group Ketchikan, the unit which had written it.

The Coast Guard had a 25 foot boat in the area at the time which was unaware of the prospective tow. There was also a second rescue case on going in which a woman was being taken to shore by a civilian boat for transportation by ambulance. The district radio station watch stander became confused and intermixed the two activities. In addition, the district radioman was engaged in a personal telephone conversation between 2:17 p.m. and 2:37 p.m.

Shortly before 2:30 p.m., the Coast Guard Auxiliary boat undertook the tow. The Auxiliary boat operator navigated his boat from the flying bridge. There was no radio located at that position and he could not see the activities on the after deck. A line was passed to the runabout and one of the persons onboard heard the petty officer tell them to put on life jackets. It is also claimed that they were told stay on deck aft. As the line was payed out, the petty officer noted that one of the people was in the cabin. There was no voice communications between the two boats. If there was a problem, the people in the towed boat were to stand up and wave. The tow line was 150' long and connected to the towing vessel with a bridle. The master of the fish tender vessel observed the operation as it commenced. He indicated that the Auxiliary boat towed the runabout about 50 to 60 yards away from him and then turned into the seas headed for Auke Bay and increased speed.

The master of the tender immediately got on the radio and called the Auxiliary boat telling them they were going too fast. He made two unanswered transmissions which were overheard by other boats. The Auxiliary boat operator on the flying bridge had no radio at that location and did not hear either transmission. No-one else on the Auxiliary boat admits to hearing the transmission either because no-one was in the cabin (although the petty officer said he went into the cabin as the tow commenced) or the radio was on the wrong frequency.

On the runabout, the operator who had a minor leg disability was in the cabin and his guest was sitting aft. As they go underway, the guest recalls a wave came over the bow. He said the owner braced his foot against the forward door to keep it closed but a second wave came over flooding the cabin. The guest yelled for the operator to get out of the cabin but the boat immediate capsized. The owner drowned and the guest survived. After extensive discovery depositions, the U. S. Attorney settled the case before trial.

A number of issues were identified. Failure to do a risk analysis, leaving the people on the towed boat under existing conditions, an improper towing procedure were three of the principle ones. The National Transportation Board has investigated several towing accidents in which a vessel towed by the Coast Guard has capsized. They have identified the first two issues as critical to a safe tow.

After extensive discovery depositions, the U. S. Attorney settled the case before trial.

Home ! Search Page ! Master index ! Table of Contents this newsletter