Maritime Injury Law BlogRescues at Sea, the United States Coast Guard, and Issues of Liability
Laws regarding saving human life are not always cut and dry. According to federal law, 45 USC Section 2304, the master of a vessel must aid anyone at sea who is in danger of losing their lives, as long as such rescue can be performed without serious threat to the master, the master’s vessel, and those on board. However, maritime law is in agreement with common law in that an individual, including a vessel master, has this statutory duty to assist those in peril at sea only when a certain relationship exists, such as carrier/passenger, vessel/seaman, and employer/employee; also, whoever has caused a danger at sea must aid any persons or property they have endangered. Further, whether because of an established relationship or as a Good Samaritan, if an individual attempts a rescue which results in further harm due to negligence, recklessness, or wantonness, he or she may be held liable for damages.
How does this relate to the United States Coast Guard, which is a federal agency, and USCG employees? Does the USCG have a duty to provide rescue on demand? What standards of performance and care apply to the USCG, and under what circumstances can the USCG be held liable?
The United States government is generally exempt from law suits, but the Federal Tort Claims Act (FTCA), 28 U.S.C. Sections 1346(b), 2671-2680, makes it possible, with exceptions, for private citizens to hold the U.S. liable “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his [or her, sic] office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” The Suits in Admiralty Act (SIAA) waives government (e.g. USCG) immunity in maritime tort cases involving private vessels.
Under 28 USC Section 2679(b)(1), the U.S. may be held responsible for federal employees’ actions. If there is a law suit, and if the Attorney General will certify that the employee was acting within the scope of their employment, the U.S. will become the defendant in the employee’s stead, and is held to the same standards to which a private citizen would be held.
This does not automatically mean that the U.S. or federal employees will be found liable for a botched rescue. For instance, the Discretionary Function Exception, at 28 U.S.C. Section 2680(a), protects broadly based policy decisions made by such federal employees as those in the USCG.
“Discretion” is a key concept here. USCG personnel make discretionary decisions about rescue operations based on information supplied during a given incident and based on agency policy. In United States v. Gaubert, 499 U.S. 315 (1991), at 325, the term, “discretionary act,” is defined as one involving “choice or judgment; there is nothing in that description that refers exclusively to policy-making or planning functions….” Such discretion allows for a broad judgment and decisions about which choice is the wisest to follow in a situation, based on policy. During rescues, the USCG doesn’t only “go by the book,” but is allowed to use discretion on whether and how to apply policy, because, as most would agree, no policy or standard operating procedure manual covers every imaginable contingency at sea. In fact, the USCG manuals allow for the application of discretion.
In the case of Lewis v. United States, 2002 AMC 2797 (M.D. Fla. 2002), the plaintiff argued that once the USCG made the choice to rescue Joe Lewis, the USCG could not ignore the rescue policies set forth in federal search and rescue manuals. The Court applied the Discretionary Function Exception test, which is a two-part test to see if the government’s liability can be barred: First, does the conduct in question involve some element of judgment or choice? Second, if so, was that judgment or choice founded on policy? If a government employee follows federal statute, regulations, or agency policies, making only broad judgments, his or her actions are shielded by the Discretionary Function Exception, and government immunity remains intact. In Lewis, the Court found that the Discretionary Function Exception applied.
The government immunity found in Lewis is also supported by Dalehite v. United States, 346 U.S. 15 (1953), in which the Supreme Court stated, “Where there is room for policy judgment and decision, there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.”
On the other hand, the U.S. can be held liable for damages caused by the negligence, wrongful act, or omission of a federal employee, if the plaintiff can show that the U.S. owed a duty of care, then breached that duty, and that that breach made matters worse for the victims. The USCG does not necessarily owe a duty to search and rescue, just as no private individual is obligated to be a Good Samaritan, but once it does embark on a mission, it owes the duty to not worsen the situation.
An example of USCG liability is found in Hurd v. United States, 134 F.Supp.2d 745 (DSC 2001), in which three of the four deaths from a nighttime allision resulted from a USCG decision to halt a search before daybreak could reveal any survivors, and where civilian mariners ceased their own search efforts because they believed that the USCG was continuing the search. Because three of the victims could possibly have been saved if the USCG had pursued rescue, the Court held that the USCG had indeed made the situation worse than it already was by prematurely abandoning search and rescue efforts. (The first of the four fatalities was thought to have been immediate and therefore was not preventable by the USCG.)
Contrast Hurd to the recently decided case of Wade v. United States, 2012 WL 2050359 (N.D. Cal.). With evidence that her husband, who was wearing his life jacket, had survived at least for a few hours before succumbing to hypothermia and drowning from subsequent loss of airway freeboard, the widow of Alan Wade claimed her husband would still be alive after a container ship, M/V EVA DANIELSEN, hit Mr. Wade’s fishing boat if the USCG had not called off search operations and had rescued him in time. The Court found the USCG not negligent and not liable for Mr. Wade’s death, however, because even though continued search and rescue efforts likely would have found Mr. Wade alive, the true circumstances came clear to the USCG and all others concerned only after it was too late. A search and rescue mission had been launched, during which both the master of the container ship and then the Coast Guard came to reasonably believe that EVA DANIELSEN had been mistaken in thinking they had hit any vessel. The decision to end the search was based on incomplete or faulty information not of the USCG’s making, and not due to negligence.
Another recent case is Turner v. United States, 2012 WL 2130933 (E.D.N.C.), in which the Turners’ boat overturned as they were returning home at night after a party. The Turners were reported as overdue, but there was not enough exact information about their location, nor enough USCG search assets available, to initiate a formal search. During the night, a USCG helicopter searching for an overdue jet skier in a separate incident kept an eye out for the Turners, but never saw them. (This did not constitute a formal search for the Turners.) It was when the Turners’ boat was found empty the next morning that the USCG launched a formal search. By that time, Ms. Turner had already made it to shore. Mr. Turner’s body was found two days later. Ms. Turner sued for her injuries, but the Court found that the USCG had properly exercised discretion, had not acted negligently, and therefore had not made Ms. Turner’s condition worse than it already had been.
In general, USCG decisions regarding its search and rescue operations are considered discretionary in nature, and are thus covered by the Discretionary Function Exception unless either effort or a lack of effort by the USCG is shown in court to have made things worse for the victims. It lies with the plaintiff to show any negligence; otherwise, the USCG will be immune from liability.