United States Court of Appeals
For the First Circuit
Volume II 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
TORRUELLA, Circuit Judge (Concurring in part, Dissenting
in part). I agree with the remand of the plaintiff's claim against
the Coast Guard for interference with communications between the
commercial salvor and NORTHERN VOYAGER. I respectfully disagree,
however, with the majority's reasoning, its holding, and with the
scope of the remand.
First, I am decidedly in disagreement with the majority's
recognition of authority by the Coast Guard to forcefully remove
the master of a vessel17 from his ship, thus preventing him from
continuing efforts to save it. With due respect, there is no
authority in law, practice, or maritime tradition that validates
such action by the Coast Guard, nor am I aware of the government's
having claimed such extraordinary powers before the inception of
this case. Because the Coast Guard lacked the authority to remove
the NORTHERN VOYAGER's master from his vessel against his will, the
discretionary function exception relied upon by the government is
inapposite. See Hatahley v. United States, 351 U.S. 173, 181
(1956) (holding that an agent acting outside his delegated
authority is not protected by the discretionary function
exception); Red Lake Band of Chippewa Indians v. United States, 800
F.2d 1187, 1196 (D.C. Cir. 1986) (holding that a "decision cannot
be shielded from liability if the decisionmaker is acting without
actual authority"); Birnbaum v. United States, 588 F.2d 319, 329
17
And volunteering officers.
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(2d Cir. 1978) (holding that "discretionary function can derive
only from properly delegated authority").
The new, misguided doctrine promoted by the government in
this appeal will have far reaching implications for the maritime
and marine insurance industries. At a minimum, it will result in
a shift in the decision-making responsibility for the safety and
salvage of a ship from the person best qualified and most
knowledgeable regarding his vessel, the master, to a governmental
agency that, as well intentioned as it may be in its actions, is
not even required by law to engage in any rescue attempt. See
infra I(B)(1). In effect, the Coast Guard is now empowered to
arrive at the scene, forcibly remove the ship's captain, and leave
the scene of the marine casualty without any duty of engaging in
any attempt to save the vessel.
Such a momentous shift in policy and such an
extraordinary grant of authority should not be undertaken absent a
clear legislative mandate expressed both in the text of the statute
and in its legislative history. Ordinarily, major policy changes
of this nature are the result of an unambiguous Congressional
grant, written in plain language, enacted after considerable public
hearings and input from the affected public, thus providing the
courts with clear guidance in its judicial function. In this case,
one looks in vain for such background or guidance. It is nowhere
to be found. The government asks this Court to take a leap of
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faith based on its say, and with a dearth of authority. The very
fact that there is no judicial decision, legislative history or
prior claims to such powers, notwithstanding the over 39,000
maritime rescue interventions effectuated every year by the Coast
Guard,18 speaks volumes about the government's claim to the
existence of such power. See General Elec. Co. v. Gilbert, 429
U.S. 125, 143 (1976) (citing United Housing Foundation, Inc. v.
Forman, 421 U.S. 837, 858-59, n.25 (1975); Espinoza v. Farah Mfg.
Co., 414 U.S. 86, 94 (1973)) (noting that courts have refused to
follow administrative guidelines when they conflict with past
pronouncements of an agency); see also Motor Vehicles Mfrs. Ass'n
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 57 (1983)
(requiring an agency to provide reasoned analysis before changing
its standards).
The majority's reliance by analogy on state police power
legislation19 is particularly inappropriate considering that the
federal government lacks a similar police power. See Lottery Case,
188 U.S. 321 (1903) (holding "that there is no such thing as a
Federal police power except in respect of those specific subjects
delegated to Congress, such as treason, counterfeiting, piracies
18
U.S. Coast Guard, 2002 Coast Guard Ann. Rep.
19
Analogies between state and federal statutes can be a
hazardous enterprise. See, e.g., Nat'l R.R. Passenger Corp. v.
Atchison, Topeka & Sante Fe Ry. Co., 470 U.S. 451, 470 (1985)
(refusing to transfer, by analogy, the wording of a state statute
into a federal statute.)
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and felonies on the high seas and offences against the laws of
nations"). Although I will discuss this point more fully below, it
should be noted that the state statutes cited as authority for
forcible removals in land-based emergencies contain specific
statutory language or have legislative histories granting such
authority. These state statutes and authorities are particularly
inapposite to the quintessential maritime scenario presented by
this appeal, one which should be properly guided solely by the
uniquely federal admiralty laws, practices and traditions. See
U.S. Const. art. III, § 2 (specifically extending federal judicial
power to "all Cases of admiralty and maritime Jurisdiction"); Fed.
R. Civ. P. 9(h), 14(c), 38(e), & 82 (applying a distinct set of
rules for admiralty cases); see generally Thomas J. Schoenbaum,
Admiralty and Maritime Law § 3-2 (3d ed. 2001) (explaining the
uniqueness of admiralty law).
I. Discretionary immunity only applies if the actor
had actual authority
Discretionary immunity protects government decisions from
tort liability only when the decision-maker is acting within the
scope of his actual authority. See, e.g., Hatahley, 351 U.S. at
180-81 (holding that the discretionary function does not apply
where the decision-maker lacks authority); K.W. Thompson Tool Co.
v. United States, 836 F.2d 721, 727 n.4 (1st Cir. 1988) (stating
that a "decision cannot be shielded from liability if the
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decisionmaker is acting without actual authority") (internal
citation and quotations omitted); Red Lake Band of Chippewa
Indians, 800 F.2d at 1196-97 (determining that unauthorized actions
are not shielded from liability under the discretionary function
exception); Birnbaum, 588 F.2d at 329-30. The majority correctly
presented this aspect of the discretionary function test. However,
the majority incorrectly concluded that the Coast Guard had
authority to order the evacuation of the NORTHERN VOYAGER.
The issue upon which I most ardently disagree with the
majority is whether the Coast Guard, when asked to provide salvage
assistance to a stricken vessel, has authority under 14 U.S.C.
§ 88, or any other statute, to compel an unwilling master to quit
salvage efforts and to evacuate his vessel when Coast Guard
personnel determine that further salvage efforts would be futile or
dangerous.
A. 14 U.S.C. § 88 does not give the Coast Guard
unbridled authority
Whatever the scope of 14 U.S.C. § 88, the statute does
not confer unlimited authority upon Coast Guard officials to act in
any way they see fit merely because they are engaged in rescue
efforts. It is true that the statute's cryptic direction to
"perform any and all acts necessary" may sound like a grant of
unlimited authority to the Coast Guard.20 Nevertheless, the
20
In pertinent part, 14 U.S.C. § 88 provides:
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language does not empower the Coast Guard, in a rescue context, to
issue orders without regard to the statute's purpose or the rights
of private citizens.
A glance at identical language from analogous federal
statutes reveals that Congress cannot have intended such "any and
all acts" provisions to constitute an independent grant of
unbounded authority.21 In nearly every instance in which Congress
(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.
21
Historically, Congress has only employed the phrase "any and
all acts" when furnishing a newly-created administrative agency or
program with sufficient flexibility to accomplish its central
statutory purposes. See, e.g., 16 U.S.C. § 583j-2 (establishing a
foundation under the supervision of the Forest Service and
authorizing that foundation to perform "any and all acts necessary
and proper" to carry out the purposes of the foundation); 16 U.S.C.
§ 3703 (authorizing the National Fish and Wildlife Foundation to
perform "any and all acts necessary and proper"); 20 U.S.C. § 5509
(establishing the National Environmental Education and Training
Foundation and authorizing the Foundation to perform "any and all
acts necessary and proper"); 43 U.S.C. § 373 (authorizing the
Secretary of the Interior to perform "any and all acts" to make
rules necessary to implement a program of reclamation and
irrigation of lands by the federal government).
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has granted an agency authority to "perform any and all acts
necessary" to further some legislative goal, it is evident from the
context that the provision grants an agency general implementary
powers, but is not intended to expand the scope of that agency's
powers "beyond those that may fairly be implied from the
substantive sections and the functions there defined." See PSC of
New York v. FERC, 866 F.2d 487, 492 (D.C. Cir. 1989) (citing Mobil
Oil Corp. v. FPC, 483 F.2d 1238 (D.C. Cir. 1973)).
Not surprisingly, when construing other statutes
employing this phrase, this Court has found that the phrase "any
and all acts" does not itself grant independent powers, but merely
provides for implementation of the core purposes of the statute.
For example, when construing analogous language from the Federal
Power Act, we concluded:
While the Federal Power Act contains a "necessary and
appropriate" provision, see 16 U.S.C. § 825h (granting
FERC "power to perform any and all acts, and to
prescribe, issue, make, amend, and rescind such orders,
rules, and regulations as it may find necessary and
appropriate"), that provision merely augments whatever
existing powers have been conferred on FERC by Congress,
without itself comprising a source of independent
authority to act.
Boston Edison Co. v. FERC, 856 F.2d 361, 369-70 (1st Cir. 1988)
(emphasis in the original) (internal citations omitted); see also
I think it self-evident that, despite conferring these
agencies with the power to perform "any and all acts" in
furtherance of some statutory purpose, Congress did not thereby
confer unfettered authority upon agencies such as the Forest
Service or National Fish and Wildlife Foundation.
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New England Power Co. v. FPC, 467 F.2d 425, 430-31 (D.C. Cir.
1972).
The phrase "any and all acts" authorizes the Coast Guard
to implement and maintain a capability to conduct search and rescue
operations. The phrase does not literally mean that the Coast
Guard may perform any action that is tangentially rescue-related,
without regard to that action's lawfulness, or proper delegation,
or potential impact on the rights of civilian mariners.22
The majority recognizes the logic of this argument in
part when it notes that the Coast Guard's power under the statute
is not unbridled. Maj. Op. at II(B)(3). To avoid giving the Coast
Guard the unlimited power it claims, yet still give it enough
authority to meet the discretionary immunity test, the majority
judicially creates a limitation to § 88 out of whole cloth. It
holds that Coast Guard authority exists only during life-
threatening situations when there is an objectively reasonable
belief by safety officers that a true emergency exists and there is
an immediate need for assistance or aid. Needless to say, there is
no mention of such a limitation in the congressional history or in
previous case law regarding § 88, yet the majority depends on this
limitation to uphold the proposition that the Coast Guard had
22
To indulge in hypotheticals: while the statute would
undoubtedly authorize the Coast Guard to spend money and to use
labor conducting a rescue, it plainly would not authorize the Coast
Guard to shoot an obstreperous mariner who refused to comply with
the suggestions of Coast Guardsmen providing rescue assistance.
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actual authority.
The problem with judicial legislation is that it often
conflicts with the wording and intent of the statute. Such is the
present case. The majority's creation conflicts with the very
purpose of the discretionary function exception. The "basis of the
discretionary function exception was Congress' desire to prevent
judicial second guessing." Berkovitz v. United States, 486 U.S.
531, 536-37 (1988) (internal citation and quotations omitted).
Once a court determines that an agency's decision was
discretionary, it is not thereafter free to determine whether the
decision-maker properly perceived the emergency to be life-
threatening and whether such a perception was objectively
reasonable. An agency's discretionary decisions are immune
"whether or not the discretion involved be abused." 28 U.S.C. §
2680(a). Therefore, once a decision is deemed to be the kind of
decision the exception was designed to shield, this Court's inquiry
must come to an end. As the Supreme Court concluded, "where the
government is performing a discretionary function, the fact that
the discretion is exercised in a negligent manner does not make
[the exception] inapplicable." Attallah v. United States, 955 F.2d
776, 784 n.13 (1st Cir. 1992) (citing Dalehite v. United States,
346 U.S. 15, 33 (1952); Berkovitz, 486 U.S. at 539)) (further
citations omitted). Likewise, where the Coast Guard is performing
a discretionary function, the fact that the decision-maker wrongly
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perceived the situation to be life-threatening will not make the
exception inapplicable.
The better and, in my belief, the only correct
interpretation of § 88 is one that does not require judicial
legislation. Like statutes with similar language, § 88 grants the
Coast Guard general implementary powers. It does not grant the
Coast Guard the authority to threaten an unwilling master to
evacuate his vessel if Coast Guard personnel determine that further
salvage efforts would be dangerous.
I am unaware of any case or authority, nor does the majority
cite to any, conferring such sweeping authority upon the Coast
Guard in the search and rescue context, other than the statute in
question.23 Keeping these general limitations in mind, we turn to
23
The majority also cites Coast Guard Manuals to support the
proposition that the Coast Guard has actual authority during
search and rescue operations to forcefully remove a ship's crew.
First, I do not read any language in that Manual indicating that
the Coast Guard has the authority to force a master off his vessel.
Second, Coast Guard manuals do no more than serve as a "training
and operational tool" for search and rescue operations. U.S. Coast
Guard, National Search and Rescue Manual (1991). They are nothing
more than "reference documents" to aid the Coast Guard and other
rescue groups outside the Coast Guard. See U.S. Coast Guard, Coast
Guard Addendum to the National Search and Rescue Manual. By no
means can a manual create authority for the Coast Guard when no
such power has been authorized by Congress. See also
Christensen v. Harris County, 529 U.S. 576, 587 (2000) (reiterating
that statutory "interpretations contained in . . . agency manuals"
do not warrant deference.) Third, the United States National
Search and Rescue Supplement recognized that Coast Guard negligence
"may, in some circumstances, create legal liability" if an
"attempted rescue . . . is conducted so that it . . . worsens the
situation of . . . one in distress." National Search and Rescue
Committee, United States National Search and Rescue Supplement to
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the substantive language and purpose of § 88 to determine whether
the Coast Guard's evacuation order was within the permissible range
of actions authorized by the statute.
B. Scope of authority
The Coast Guard is the historical product of five federal
agencies.24 In 1915 "the U.S. Revenue Cutter Service and the U.S.
Lifesaving Service were merged to form a new agency, the U.S. Coast
Guard." D.C. Baldinelli, The U.S. Coast Guard's Assignment to the
Department of Homeland Security: Entering Uncharted Waters or Just
a Course Correction? (Dec. 9, 2002), available at
http://www.uscg.mil/hq /g-cp/history/Homeland_Security_Baldinelli.
html. In the 1930s and 1940s the Coast Guard absorbed the U.S.
Lighthouse Service, the Steamboat Inspection Service and the Bureau
of Navigation. Id. In 1967, the Coast Guard was transferred from
the Treasury Department to the Department of Transportation. Id.
In 2003, the Coast Guard was transferred to the Department of
Homeland Security. See 6 U.S.C.S. § 101 (2003).
It thus appears that the Coast Guard, or its
predecessors, has been with us since the inception of the Republic.
the International Aeronautical and Maritime Search and Rescue
Manual (May 2000).
24
The agencies that merged into the Coast Guard are: the
United States Lighthouse Service (1 Stat. L. 53) (1789); the
Revenue Cutter Service (12 Stat. L., 639) (1863); the Steamboat
Inspection Service (10 Stat. L., 1852) (1852); the U.S. Life-Saving
Service (20 Stat. L., 163) (1878); and the Bureau of Navigation (23
Stat., L. 118) (1884).
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Yet, in all of its various forms there is not a single reported
case, not a shred of documented evidence, not an iota of coherent
legislative history, sanctioning the exercise of the extraordinary
executive powers claimed by the Coast Guard in this case.
The earliest Congressional statutes authorizing a
government agency to perform search and water rescues provided that
rescuers could only aid distressed sailors. See Act of Dec. 22,
1837, ch. 1, 5 Stat. 208 (1837) (cited in The Huntsville, 12 F.Cas.
996 (E.D.S.C. 1860) (No. 6916) (Congress authorized the President
"to cause . . . public vessels . . . to cruise upon the coast, in
the severe portion of the season . . . to afford such aid to
distressed navigators as their circumstance and necessities may
require; and such public vessels shall go to sea prepared fully to
render such assistance")). The authority granted by this original
statute was only to "aid" navigators as "their" necessities
required. See id. Other Congressional legislation similarly
established Coast Guard stations and provided Coast Guard funding
for the purpose of "assisting vessels . . . from the perils of the
sea." Act of Apr. 19, 1906, ch. 1640, 34 Stat. 123; see also Act
of Aug. 29, 1916, ch. 417, 39 Stat. 601 (providing funding for
cutters to be used for "rendering aid to vessels in distress"); Act
of June 24, 1914, ch. 124, 38 Stat. 387 (providing funding for two
cutters to provide medical aid to vessels engaged in the deep-sea
fisheries); Act of May 12, 1906, ch. 2454, 34 Stat. 190 (providing
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funding for a steam vessel to provide service at sea).
Similar to previous statutes granting a governmental
agency the power to "aid" distressed sailors, under § 88, Congress
granted the Coast Guard broad powers to "render aid," "rescue and
aid" and "furnish clothing, food, lodging, medicines, and other
necessary supplies" to distressed persons and vessels. 14 U.S.C.
§ 88 (a)(3). Neither the history of § 88 nor case law interpreting
§ 88 support the proposition that the Coast Guard has the authority
to force a master to evacuate his vessel.
Cases involving § 88 focus exclusively on two issues.
First, courts uniformly hold that the Coast Guard is legally
indistinguishable from private mariners regarding its duty to
rescue.25 See, e.g., In re American Oil Co., 417 F.2d 164, 168 (5th
Cir. 1969). Second, reviewing courts have concluded that the Coast
Guard becomes liable for an attempted rescue when its actions fail
to comply with standards of ordinary care and acceptable
seamanship. United States v. Sandra & Dennis Fishing Corp., 372
F.2d 189, 195 (1st Cir. 1967).
1. Duty to rescue
The Coast Guard does not have a duty to provide aid or
25
The majority disagrees and contends that, in circumstances
such as the present, Coast Guard operations are relevantly
different from the situation in which a private vessel comes to the
rescue of a distressed vessel. Maj. Op. at II(B)(3). Once again,
the majority makes such an assertion without any supporting
citations or referenced authority.
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rescue services to distressed persons or vessels. See Sagan v.
United States, 342 F.3d 493, 498 (6th Cir. 2003) (finding that
"[t]he United States Coast Guard does not have an affirmative duty
to rescue persons in distress"); Sandra & Dennis Fishing, 372 F.2d
at 195 (finding that the Coast Guard is under no obligation to
"provide rescue service on demand"). So while § 88 empowers the
Coast Guard to maintain rescue facilities and carry out rescue
efforts, the Coast Guard is legally indistinguishable from a
private salvor when it comes to providing rescue assistance.
Accordingly,
[t]he Coast Guard, like a private salvor, renders
voluntary assistance where no duty to help is owed the
person or vessel in distress. True, it is a statutory
function of the Coast Guard to establish and operate
rescue facilities. Congress has also provided that the
"Coast Guard may render aid to persons and protect and
save property at any time and at any place at which Coast
Guard facilities and personnel are available and can be
effectively utilized." 14 U.S.C. § 88(b). But this
legislation falls short of creating a governmental duty
of affirmative action owed to a person or vessel in
distress.
In re American Oil, 417 F.2d at 168 (quoting Frank v. United
States, 250 F.2d 178, 180 (3d Cir. 1957)) (internal citation
omitted). Thus while § 88 authorizes the Coast Guard to conduct
rescues, it does not impose any affirmative duty to do so.
2. Acceptable seamanship standard
Once the Coast Guard engages in aid or rescue efforts,
the United States, like its private counterparts, will be liable
only where there is a failure to carry out the rescue mission or
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aid in accordance with standards of "acceptable seamanship."
Sandra & Dennis Fishing, 372 F.2d at 197. That means that
"[w]hatever may be the limits of this principle with respect to
volunteered salvage, we believe that if the Coast Guard accepts a
mission it should conduct its share of the proceeding with
acceptable seamanship." Id. (internal citation omitted).
Thus, once the Coast Guard begins providing rescue
assistance to a distressed vessel or persons, its authority under
§ 88 is bounded by the duty of "acceptable seamanship" it owes to
the vessel owner or distressed persons. Whatever else may be said
about the limits of the statute, § 88 cannot be construed in a
manner which would vitiate the Coast Guard's duty of "acceptable
seamanship" when carrying out volunteer salvage services to
distressed vessels or persons.
Therefore we are presented with the relatively
straightforward question of whether the Coast Guard's forced
evacuation order was consistent with principles of "acceptable
seamanship." I conclude it was not. Had a private salvor
coercively compelled the master and crew to quit salvage efforts
and abandon the NORTHERN VOYAGER, there is no question but that the
case would have proceeded to trial to determine whether the
salvor's actions affirmatively worsened the condition of the
vessel. Here, the Coast Guard, acting in its capacity as a private
salvor, violated numerous principles of "acceptable seamanship" by
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compelling the master to abandon the NORTHERN VOYAGER and
wrongfully depriving him of the opportunity to halt further
flooding of the vessel and await commercial salvage assistance.
3. Right to refuse unwanted salvage assistance
Though there are no cases directly on point as to whether
an order such as the one issued by the Coast Guard is within the
bounds of "acceptable seamanship,"26 the law of salvage provides
valuable guidance on this issue. Salvage law governs the rescue
and salvage of vessels in marine peril.
One well-established principle is that shipowners and
masters have a right to refuse salvage assistance. The right to
refuse salvage is a firmly established right of vessel owners and
masters: "[u]nder nearly all supposable circumstances when the
master is in command and control of his own ship he may refuse and
reject salvage services, and no volunteer salvor can force on him,
and be rewarded for, services which he forbids." The Indian, 159
F. 20, 25 (5th Cir. 1908). This Court has previously acknowledged
the master's right to refuse unwanted assistance. In Hamburg-
American Line v. United States, we noted that "salvage services may
not be forced on the unwilling." 168 F.2d 47, 56 (1st Cir. 1948).
This view is consistent with the Supreme Court's statement that
"salvage cannot be exacted for assistance forced upon a ship."
26
For good reason, as the Coast Guard lacks the authority to
issue such an order.
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Merritt & Chapman Derrick & Wrecking Co. v. United States, 274 U.S.
611, 613 (1927). Other cases strongly support this interpretation
of salvage law as well.27 See New Harbor Protection Co. v. Steamer
Charles P. Chouteau, 5 F. 463, 464 (D. La. 1881) (holding that a
master has "a perfect right to decline any assistance that may be
offered him: he should not be assisted against his will").
The majority claims that dicta in two district court
cases limits the right to decline salvage assistance to instances
where only the owner's property interests are at stake. First, it
is important to remember that the majority is relying on mere
dicta. Second, this dicta is of dubious value because the rule
espoused is contrary to the well-established law of salvage.
Third, the dicta cited by the majority limits the right to decline
salvage assistance from a private salvor to instances when there is
danger of large losses of property to third persons or when the
27
Leading admiralty treatises also recognize that masters can
reject salvage assistance. According to Martin J. Norris, "[w]hen
the master is in command and control of his own ship he may refuse
and reject salvage services. A would-be salvor, under such
circumstances, cannot force his services on the distressed vessel."
Martin J. Norris, The Law of Seamen § 9:39 (4th ed. 2002).
Additionally, even where a salvor's services have been accepted and
assistance rendered, "the salvor must cease his services when
requested to by the salved ship . . . . During the time that
assistance is being rendered, the officers of the distressed vessel
are at liberty to determine when the assistance rendered should be
terminated." Id. Thomas J. Schoenbaum echoes this view: "Salvage
cannot be forced upon an owner or his agent in possession of the
vessel; 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." Thomas J. Schoenbaum, 2 Admiralty and Maritime
Law § 16-1 (3d ed. 2001).
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master's decision to decline salvage assistance was "so palpably
and so grossly wrong as to amount to positive misconduct in
reference to the claims of humanity." Ramsey v. Pohatcong, 77 F.
996 (S.D.N.Y. 1896); Smit Americas, Inc. v. M/T Mantinia, 259 F.
Supp. 2d 118, 134 (D.P.R. 2003). The NORTHERN VOYAGER did not pose
a threat to the property of third persons. Captain Haggerty's
decision to continue efforts to salvage his ship was also not so
"palpably and grossly wrong," evidenced by the fact that the ship
remained upright for fifty-five minutes after he was forced to
evacuate the NORTHERN VOYAGER, and afloat for some time after
capsizing, all of which was more than enough time to have saved his
ship, particularly if the Coast Guard had not interfered with the
salvor. The Coast Guard has never claimed that there was any
regulatory, military, or law enforcement basis for compelling the
NORTHERN VOYAGER's crew to evacuate their vessel. All of the
officers who remained aboard the NORTHERN VOYAGER freely
volunteered to do so, and there is no indication that any of them
were acting in a deranged or reckless manner.
The language of § 88, as well as the long line of cases
holding that the Coast Guard is legally indistinguishable from a
private party when providing voluntary salvage assistance, compel
the conclusion that the Coast Guard lacked authority and acted
outside the bounds of "acceptable seamanship" forcing the crew to
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abandon the NORTHERN VOYAGER.28
4. The Coast Guard is unlike state public safety
officials
The lack of federal case law or legislative history
granting the Coast Guard authority to force a captain from his
vessel has led the majority to analogize the actions of the Coast
Guard to actions of state public officials during times of
emergencies on land. The majority concluded that it is "reasonable
to assume" (emphasis added) that Congress intended to confer powers
to the Coast Guard "analogous to those possessed by state safety
officials, namely, the power to rescue a person even against his
will in life-threatening situations." Maj. Op. at II(B)(3). I
find such an assumption totally unwarranted and, like other parts
of the majority opinion, unsupported by any authority.
First, there is nothing in the text of § 88 or its
legislative history to support such an assertion, and furthermore,
the assumption that Congress intended to confer such extraordinary
powers by analogy or by implication is in itself a dubious
28
It is important to note that we are only concerned with the
scope of authority of the Coast Guard under § 88 to assist
distressed persons, vessels, and aircraft on and under United
States waters. Nothing in the majority opinion or in this dissent
should be construed to apply to the Coast Guard in its military,
law enforcement or regulatory capacities. Moreover, the right of
the Coast Guard to evacuate its own personnel from a distressed
vessel is not at issue here; had the Coast Guard simply withdrawn
its personnel from the NORTHERN VOYAGER, without ordering the
NORTHERN VOYAGER's master and officers to evacuate as well, the
appellant would have had no cause of action against the United
States.
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proposition. See, e.g., Nat'l R.R. Passenger Corp., 470 U.S. at
470 (refusing to transfer, by analogy, the wording of a state
statute into a federal statute because "neither the language of the
[federal] statute nor the circumstances surrounding its passage"
supported such an analogy).
Second, in those cases where courts have found that state
safety officials were specifically granted the power to force
people from their homes during life-threatening emergencies, that
power had been authorized by specific legislative enactment. See,
e.g., Alaska Stat. § 18.70.075(a)(2) (granting the fire department
"authority to . . . order a person to leave a building"); see also
Conn. Gen. Stat. § 7-313b; Del. Code Ann. tit. 16, § 6701A(2); N.H.
Rev. Stat. Ann. § 154:7; Tenn. Code Ann. § 6-21-703; W. Va. Code
§ 29-3A-1. In contrast, there is no federal statute remotely
similar to these state statutes specifically granting the Coast
Guard authority to order a ship's master to abandon his vessel.
Moreover, unlike state governments, the federal government does not
have a general police power -- something that is probably beyond
the authority of any branch of the federal government to create
extra-constitutionally. See Lottery Case, 188 U.S. 321 (1903).
Third, life-threatening emergencies on land are very
different from life-threatening emergencies at sea. Many state
statutes grant the state governor or local authorities the power to
declare an emergency which would result in a forced evacuation.
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See, e.g., Alaska Stat. 26.23.020; Fla. Stat. Ann. § 252.38; Me.
Rev. Stat. Ann. tit. 37-B, § 742; Minn. Stat. Ann. § 12.21; Or.
Rev. Stat. §§ 401.305, 401.309; Tenn. Code Ann. § 58-2-118. On
land, it may be presumed that a trained law enforcement official
has more knowledge than an average person about an impending
emergency, such as a storm or a fire. At sea, however, a captain's
expertise regarding his ship places him in the best position to
determine the actual peril of his vessel and how best to save it.
Coast Guardsmen, unfamiliar with the vessel involved in the
emergency, ought not be able to substitute their judgment for that
of the master by forcing evacuation upon him. In an emergency
situation, it is unwise for the least knowledgeable to command the
most knowledgeable.
Fourth, allowing the Coast Guard to dictate to the master
how to save his ship interferes with the vital relationship between
a master and his vessel. As one expert on the duties of a master
has testified, a master "has no umbilical cord of support. He is
the sole decision maker and he lives with the responsibility that
he's got to discharge, under adverse and varied conditions, calling
upon those levels of expertise at moments and when he's least
expecting it." In re Exxon Valdez, 1995 WL 527990, at *5 (D.
Alaska, Jan. 27, 1995). The exigencies and realities of life at
sea require that there be a rigid chain of command aboard a ship.
A master's responsibility to his ship is nondelegable and should be
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free from officious meddling. Particularly in times of life-
threatening emergencies, it is unwise to interfere with the chain
of command by forcing the master to succumb to the orders and
directions of an intervening governmental bureaucracy, particularly
one which ultimately disclaims responsibility for its actions.
II. Coast Guard interference with the commercial salvor
I agree with the majority that there is sufficient
evidence in the record to create a factual issue on the question of
whether the Coast Guard's interference with the commercial salvor's
communications prevented him from pursuing salvage efforts and
using his diving capacity to find and plug the leak. I disagree,
however, with the majority's determination that the district court
correctly granted summary judgment because plaintiffs failed to
establish a factual issue as to whether the Coast Guard was
negligent in delaying Goodridge, the commercial salvor, and as to
whether the Coast Guard was negligent in assuring Captain Haggerty
that it was working on getting outside commercial salvage
assistance.
Summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file show that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Rosenberg v.
City of Everett, 328 F.3d 12, 17 (1st Cir. 2003) (citing Fed. R.
Civ. P. 56(c)). We review an award of summary judgment de novo,
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construing the record in the light most favorable to the plaintiffs
and resolving all reasonable inferences in their favor. Id.
A. The reliance argument
The parties agree that the Good Samaritan doctrine,
"which makes one person liable to another for breach of a duty
voluntarily assumed by affirmative conduct," applies to this case.
Good v. Ohio Edison Co., 149 F.3d 413, 420 (6th Cir. 1998)
(internal citations and quotations omitted). Coast Guard liability
may be established if the Coast Guard's statements "mislead . . .
[or] induce reliance upon a belief that it is providing something
which, in fact, it is not providing." Sandra & Dennis Fishing
Corp., 372 F.2d at 195.
There are several statements in the record that create a
factual issue as to whether the Coast Guard falsely informed
Captain Haggerty that they were arranging for commercial assistance
when, it is alleged, they were not. Captain Haggerty testified, in
a sworn affidavit, 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 . . . to call for help." Haggerty also
radioed Station Gloucester asking "if there was anybody available,
if there was any more pumps." The Coast Guard responded that they
were "working on that." Haggerty allegedly relied on the Coast
Guard's statements and believed them. In fact, it is claimed that
even as he was being forced off the NORTHERN VOYAGER, Haggerty
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reiterated to the Coast Guardsman that he wanted to remain aboard
his vessel, to stabilize it and await salvage assistance.
It is admitted that the Coast Guard never arranged for
commercial salvage assistance.29 Nor did they inquire whether
anyone was available or whether there were any more pumps.
The majority discounts Haggerty's sworn testimony by
concluding that the "natural assumption" is that the Coast Guard's
statement that we are "working on that" referred to the impending
arrival of the cutter ADAK. It is equally, if not a more "natural
assumption," that Haggerty's question asking if anyone was
available referred to the availability of commercial salvors, who
routinely carry pumps aboard their ships. Most important, this
Court must view all facts in favor of the nonmoving party. Any
"natural assumptions," therefore, must be viewed in a light most
favorable to the plaintiffs. Keeping this in mind, it is clear
that there is enough evidence of detrimental reliance to warrant a
remand on that issue as well.
B. The delay argument
By dissecting the record, the majority drew two
29
Congress has expressed concerns that the Coast Guard --
acting as a private salvor -- may unduly interfere with commercial
salvage efforts. Such concerns led Congress, in 1982 legislation,
to direct the Coast Guard to "review Coast Guard policies and
procedures for towing and salvage of disabled vessels in order to
further minimize the possibility of Coast Guard competition or
interference with private towing activities or other commercial
enterprise." Coast Guard Authorization Act of 1982, Pub. L. No.
97-322 § 113, 96 Stat. 1581 (1982).
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conclusions: first, the Coast Guard delayed Goodridge by, at most,
twelve minutes; and second, twelve minutes is not a significant
delay. Both conclusions are wrong.
At 9:03 a.m., Goodridge called Station Gloucester to
inform them that he had equipment and was available to assist in
the salvage efforts. The Coast Guard responded that "they were
busy and they were going to handle it . . . they didn't need any
help." After being rebuffed by the Coast Guard, Goodridge returned
to work and gathered his gear to prepare to salvage a boat that had
sunk that morning. Goodridge continued to listen to his radio
transmitting the communications regarding the NORTHERN VOYAGER.
After further listening, Goodridge concluded that, despite what the
Coast Guard had said, the NORTHERN VOYAGER would need his help.
Thus, at 9:15 a.m., Goodridge called Cape Ann Divers to inquire who
would be there to assist in a dive and to gather information. At
9:33 a.m. Goodridge called Station Gloucester again and informed
them that he was coming with equipment. At this point, the
majority is correct that, at most, the Coast Guard delayed
Goodridge by twelve minutes. But, the Coast Guard caused further
delay once Goodridge arrived at his boat. Using the radio onboard
his boat, Goodridge attempted to contact the Coast Guard to ask if
"we should take the time to load pumps or just come with the dive
gear." The Coast Guard responded: "don't tie up the channel; we're
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busy; don't tie up the channel."30 Since the Coast Guard did not
respond, Goodridge "took the time" to "run the pumps down the
dock." It is unclear how much extra time this took, but viewing
the evidence in a light most favorable to the plaintiffs, it is
enough evidence to require a remand on this issue. This is
especially true considering that the repairs required by the
NORTHERN VOYAGER would have taken "two minutes or less" to
complete31 and did not even require the use of additional pumps.
Further, even if it is assumed that Goodridge was delayed
by only twelve minutes, viewing the evidence in a light most
favorable to the plaintiff, it can be concluded that the delay was
significant.32 Had the delay not occurred, Goodridge could have
arrived at the scene in time to communicate with Captain Haggerty.
At such time, further efforts could have been taken to save the
NORTHERN VOYAGER. This issue should also be remanded since the
30
Goodridge originally radioed the Coast Guard on channel 16
and, as is customary, told the Coast Guard to switch to Channel 22,
the channel where the NORTHERN VOYAGER communications were taking
place. After switching to Channel 22, the Coast Guard asked
Goodridge to switch to Channel 12. Upon doing so, Goodridge was
told not to "tie up" this non-emergency channel, despite the fact
that Channel 12 did not contain any emergency communications
between the Coast Guard and the NORTHERN VOYAGER. Thus, in effect,
the Coast Guard silenced and isolated Goodridge's salvage attempts.
31
The evidence showed that all a diver had to do was plug the
rudder shaft, a simple and quick maneuver.
32
This evidence should also be viewed in light of the fact that
the NORTHERN VOYAGER was afloat for about one hour after the master
was forced to abandon it and to cease efforts to save it.
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delay could have led to the demise of the NORTHERN VOYAGER.
III. Conclusion
Most respectfully, I strongly disagree with the
majority's holding that the Coast Guard has the power to remove a
master of a vessel from his ship by threat of force, thereby
preventing him from saving it. My views are not some romantic or
archaic notion to the effect that the "captain should go down with
the ship,"33 or a claim based on John Stuart Mill-like theories of
personal liberty and autonomy,34 although some might find such
arguments appealing. Rather, they are based on the hard realities
of the law of the sea as it has existed from time immemorial until
this case ensued. The majority's unprecedented holding is not
supported by law, practice or maritime tradition. It contradicts
legislative enactments and the very purpose of the discretionary
function exception. Congress has never granted the Coast Guard the
authority to force a master to abandon his vessel. Neither should
this Court.
33
Although such a tradition, which has not been altogether
fanciful at different times, has served to establish a benchmark
for the commitment expected of a ship's captain toward his ship,
crew and passengers.
34
See John Stuart Mill, On Liberty 14 (John Gray ed., Oxford
Univ. Press 1991) (1859) ("[T]he sole end for which mankind are
warranted, individually or collectively, in interfering with the
liberty of action of any of their number, is self-protection [of
society] . . . His own good, either physical or moral, is not a
sufficient warrant. He cannot rightfully be compelled to do or
forbear because it will be better for him to do so . . . Over
himself, over his body and mind, the individual is sovereign.")
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