NEGLIGENT RESCUE. Ross Diamond III Mobile, Alabama (251)

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1 NEGLIGENT RESCUE Ross Diamond III Mobile, Alabama (251) No good deed goes unpunished Of all branches of jurisprudence, e admiralty must be e one most hospitable to e impulses of man and law to save life and limb and property. Judge John R. Brown, in Grigsby v. Coastal Marine Service of Texas, Inc., 412 F. 2d 1011(5 Cir. 1969) The claim for negligent rescue, where e victim is injured or killed (or e vessel in distress is destroyed) during e course of a rescue attempt is not analogous to a case in which e rescuer is injured, and e same legal principles do not apply. In determining e liability of a vessel owner to an injured rescuer, e admiralty laws allows a considerable latitude in judging e conduct of e rescuer. Under e Amphibius Good Samaritan Doctrine established in Grigsby v. Coastal Marine Service of Texas, Inc., e assumption of risk by e rescuer is not a defense. Also, e rescuer is given, vicariously, e unseaworiness remedy owed by e vessel owner to e seamen in distress. In Furka v. Great Lakes Dredge & Dock Co., 824 F. 2d 330(4 Cir. 1987) e court correctly held at in determining wheer a person attempting a rescue was guilty of contributory fault, e correct standard was wheer e rescuer was wanton and reckless bo in perceiving e need of rescue and in e undertaking of it. Obviously, if a claim against a rescuer for e dea of a victim were litigated on is basis, it would be doomed to failure. The oer issue which should not be involved at all in a negligent rescue case is a question of any negligence on e part of e victim in creating e circumstance which prompted e rescue attempt. Any negligence on e part of e victim preceding e beginning of e rescue attempt is not to be considered in apportioning liability for e negligent rescue at follows. Fox v. United States, 934 F. Supp (N. D. Cal. 1996): The relevant negligence of e person rescued is not at which causes e initial accident but raer at which, wheer occurring before or after e accident,

2 relates to e rescue and eier worsens e victim s condition or hinders e rescue. The correct standard to be applied to determine e liability of e rescuer was established in e lead case of Berg v. Chevron, U.S.A., Inc., 759 F. 2d 1424 (9 Cir. 1985) which, while agreeing wi Grigsby and Furka, held at e proper standard of care is at a rescuer will be held liable only (1) for negligent conduct at worsens e position of e victim or (2) for reckless and wanton conduct in performing e rescue. Judge Brown had recognized is in Grigsby, from which e Four Circuit quoted: Liability for negligent salvage is limited to situations in which e salvor, rough want of due care, has worsened e position of e victim. The court also recognized at e principle established in Furka, at ere must be evidence of wanton or reckless behavior on e part of e rescuer, was e standard traditionally applied to e conduct of plaintiffs injured in rescue situations. standard: A section of e Federal Boat Safety Act, 46 U. S. C. 2303(c) also applies a negligence An individual... gratuitously and in good fai rendering assistance at e scene of a marine casualty wiout objection by an individual assisted, is not liable for damages as a result of rendering assistance or for an act or omission in providing or arranging salvage, towage, medical treatment or oer assistance when e individual acts as an ordinary, reasonable and prudent individual would have acted under e circumstances. The court in Berg v. Chevron felt at is section embodies e same standard of care set for in at case. (It is interesting to note at Berg v. Chevron was a companion case and involved e same casualty as Evich v. Connelly, 759 F. 2d 1432 (9 Cir. 1985)), e case which gave us, briefly, e hope at e estate or non-dependent family of a deceased might be able to recover e loss of e deceased future income.) Berg v. Chevron reached e same conclusion, but did not cite, an earlier decision in st United States v. Sandra & Dennis Fishing Co., 372 F. 2d 189 (1 Cir. 1967), which involved a

3 rescue attempted by e Coast Guard. That case had also held at ere will be liability on e part of e rescuer only if negligence during e attempt at a rescue worsens e position of e victim, or if ere is reckless and wanton conduct in performing e rescue. There generally is no liability for failure to attempt a rescue, if e rescue itself is not commenced. Neier maritime common law or federal statutes place an affirmative obligation upon a private vessel, or e Coast Guard, to undertake to rescue life or property. United States v. Devane, 306 F. 2d 182 (5 Cir. 1962); United States v. Gavagan, 280 F. 2d 319 (5 Cir. 1960). There are exceptions, two of which are created by statute. Anoer section of e Boat Safety Act, 46 U.S.C. 2304(a) provides: A master or individual in charge of a vessel shall render assistance to any individual found at sea in danger of being lost, so far as e master or individual in charge can do so wiout serious danger to e master s or individual s vessel or individuals on board. In Martiniz v. Puerto Rico Marine Mgmt, Inc., 755 F. Supp (S.D. Ala. 1990) e court held at, once e rescuing vessel came upon e vessel in distress, is section imposed a duty to provide assistance to e persons on board e vessel in distress. Anoer statutory exception is contained in 46 U.S.C. 2303(a), which applies to vessels involved in collisions or oer casualties: The master or individual in charge of a vessel involved in a marine casualty shall-(1) Render necessary assistance to each individual affected to save at affected individual from danger because of e marine casualty, so far as e master or individual in charge can do so wiout serious danger to e master s or individual s vessel or to e individuals on board;.... Under 46 U.S.C. 2301, is statute applies only to vessels operated on United States waters and to vessels owned in e United States operated on e high seas. Where e statute did not apply to a foreign vessel on e high seas, a maritime common law duty to rescue has been imposed on a party whose fault in part created e need for e rescue. In Hunley v. Ace Maritime Corp., 927 F. 2d 493 (9 Cir. 1991), e M/V EASTERN

4 GRACE was e vessel at fault in a collision. It steamed away wiout attempting a rescue. The court held e owner liable for damages resulting from e failure to rescue, holding at e law of admiralty has always sought to courage and induce men of e sea to go to e aid of life and property in distress. The obligation to undertake to rescue is all e more imperative where e prospective rescuer played a part in e original accident itself. The defendant, 50% at fault in causing e collision, was also found solely liable for an injury to a seaman from a ird vessel which came to assist e vessel in distress. EXAMPLES OF CASES WON AND LOST Ironically, e lead case of Berg v. Chevron U.S.A. involved a marine casualty which turned into a legal disaster for e widow of Ogie Berg, who was captain and part-owner of a fishing boat which had hit some rocks and punctured e stern lazarette. At e request of e fishing boat, it was taken in tow by e ALASKA STANDARD, a Chevron tanker. During e tow, e ALASKA STANDARD asked e crew of e fishing boat ree different times if ey would like to come aboard, and each invitation was declined. Capt. Berg was asked once per hour wheer his vessel was in danger of sinking and each time he answered no. The weaer deteriorated during e tow, wi e winds reaching 50 knots, seas running 10 to 15 feet, and snow limiting visibility to 50 yards. The decision was made to anchor near an island off e coast of Alaska. Berg was asked wheer he wished to have e fishing boat brought alongside e tanker or wheer its crewmen wanted to come aboard e ALASKA STANDARD, bo of which were declined. Later, and shortly after e fishing boat reported at all was in order, Berg radioed at e vessel was capsizing and at e crew was trapped in e wheelhouse. The crew of e fishing boat put on survival suits and abandoned e boat, wiout informing e tanker. The captain of e tanker, inking e crew was trapped inside e fishing boat, ordered

5 it to be pulled alongside. The towing line, which had been supplied by e fishing boat, parted in e process. The captain of e tanker considered several options, including lowering lifeboats or inflatable rafts, or rowing ring buoys, but determined at some options created too great a hazard to his own crew due to e seas and weaer, or would be a futile effort because he believed e fishing boat crewmen were still trapped inside e boat. In a non-jury trial, e District Court had noneeless found e ALASKA STANDARD to be negligent as to one or more of seven different points contained in his factual findings. Berg s estate was warded $1,200, In e appeal, e Nin Circuit held at each of e seven findings of fact made by e District Court were clearly erroneous, finding at e record could not support any finding of negligence on e part of e ALASKA STANDARD which worsened e positions of e victims. The judgment was reversed and rendered. As to e Coast Guard, e government cannot be held liable for errors in judgment which delay e start of a search and rescue operation. McLaughlin v. United States, 671 F. Supp. 72 (D. Md. 1997). Nor can e government be held liable where e Coast Guard errs by confusing e vessel in distress wi anoer vessel, resulting in hours of lost search time. United States v. DeVane, 306 F. 2d 182 (5 Cir. 1962). However, where e Coast Guard actually undertakes to perform a rescue, and does so negligently, United States v. Sandra & Dennis Fishing Corp. 372 st F. 2d 189 (1 Cir. 1967) provides an education in proving fault on e part of e Coast Guard. There, a fishing boat had lost its rudder and called e Coast Guard requesting a tow. A patrol boat was sent out and undertook to tow e fishing boat into e harbor. In findings of fact discussed at leng by e Court of Appeals, e patrol boat was found to have a faometer which was defective, a compass wi a 3 degree error, and an inaccurate and unreliable loran. After starting e tow, e weaer deteriorated. Later, e loran on e patrol boat failed

6 completely, and e commander of e patrol boat negligently failed to ask e fishing vessel for a loran position. The commander of e patrol boat towed e vessel directly toward a buoy marking and extensive shoal area known as e Rose and Crown, which he mistook for e buoy marking e shoal for e buoy marking e entrance to e harbor channel. As a result, e fishing boat was towed onto e shoal, where it was overturned and sank by e weaer, and five of e fishing boat crewmen were killed. The extensive findings of fact as to e fault on e part of e Coast Guard made by e District Court were affirmed. Martinez v. Puerto Rico Marine Mgmt, Inc., involved a fishing boat which began taking on water rough e hull about 200 miles into e Gulf, on a voyage from Mobile to Honduras. Fox v. United States was Ken Rosenall s case which led to e writing of his paper on is subject. The case involved a sailboat which became caught in a storm and high seas off e coast of California. The boat had lost its sails and was taking on water from e high waves. It established radio communication wi e USS FLINT, a Navy ship which was en route to California. The owner of e sailboat requested a position fix and additional pumps to get e water out of e hull. The captain of e USS FLINT, upon seeing e sailboat, determined at it was in danger of sinking (which apparently was not true at e time) and decided at he would take e crew off of e sailboat and tow it into port. Anoer Navy vessel in e area offered e use of a zodiac in getting e crew off of e sailboat, which offer e FLINT refused initially. The FLINT also turned down an offer by e Coast Guard to fly out some pumps to drop to e sailboat. Finally, e captain of e FLINT decided to accept e offer for e use of e Zodiac from e oer Navy vessel, about e same time as e engine on e sailboat quit. Even ough he knew e Zodiac was on e way, e captain of e FLINT decided to approach e sailboat to wiin 100 feet and shoot lines to it, instead

7 of moving away under e conditions. The sailboat, wiout power, came up along e starboard side of e FLINT and was bumped along its side until e mast snapped off. Three of e crewmen eier jumped or were dumped into e water. In spite of efforts to retrieve em, Mr. Fox drowned and e oer two sustained serious injuries. In a decision reported at 934 F. Supp 1133 (N.D. Ca. 1996) e District Court granted a motion to exclude pre-rescue negligence on e part of e captain and crew of e sailboat, holding at pre-rescue negligence would not be admitted for e purpose of assessing comparative fault between e United States and e plaintiffs, unless e evidence is related to e rescue itself. After a non-jury trial, e District Court found at e captain of e FLINT was negligent in failing to stand by at a safe distance from e sailboat, and wait on e zodiac to remove e crew. The District Court applied e doctrine of Berg v. Chevron, to find liability on e part of e government, because is negligent conduct worsened e position of e victims. The District Court did assign 10% fault to e captain of e sailboat, based on his agreement to have e FLINT, longside and send out a line. In an unreported opinion, e judgment was affirmed by e Nin Circuit on August 12, 1998.