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,

(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,

(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,

, 329

17 And volunteering officers.

-44- (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

-45- 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,

(1976) (citing United Housing Foundation, Inc. v.

Forman,

(1975); Espinoza v. Farah Mfg.

Co.,

(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.,

(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,

(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.,

(1985) (refusing to transfer, by analogy, the wording of a state statute into a federal statute.)

-46- 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,

(holding that the discretionary function does not apply

where the decision-maker lacks authority); K.W. Thompson Tool Co.

v. United States,

, 727 n.4 (1st Cir. 1988) (stating

that a "decision cannot be shielded from liability if the

-47- decisionmaker is acting without actual authority") (internal

citation and quotations omitted); Red Lake Band of Chippewa

Indians,

(determining that unauthorized actions

are not shielded from liability under the discretionary function

exception); Birnbaum,

. 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

, 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.

does not give the Coast Guard unbridled authority

Whatever the scope of

, 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,

provides:

-48- 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);

(authorizing the National Fish and Wildlife Foundation to perform "any and all acts necessary and proper");

(establishing the National Environmental Education and Training Foundation and authorizing the Foundation to perform "any and all acts necessary and proper");

(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).

-49- 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,

(D.C. Cir. 1989) (citing Mobil

Oil Corp. v. FPC,

(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,

(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.

-50- New England Power Co. v. FPC,

, 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.

-51- 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,

(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."

(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,

, 784 n.13 (1st Cir. 1992) (citing Dalehite v. United States,

(1952); Berkovitz,

)) (further

citations omitted). Likewise, where the Coast Guard is performing

a discretionary function, the fact that the decision-maker wrongly

-52- 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,

(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

-53- 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

(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).

-54- 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,

(1837) (cited in The Huntsville,

(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

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,

; see also Act

of Aug. 29, 1916, ch. 417,

(providing funding for

cutters to be used for "rendering aid to vessels in distress"); Act

of June 24, 1914, ch. 124,

(providing funding for two

cutters to provide medical aid to vessels engaged in the deep-sea

fisheries); Act of May 12, 1906, ch. 2454,

(providing

-55- 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.

(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.,

, 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.,

(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.

-56- rescue services to distressed persons or vessels. See Sagan v.

United States,

(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,

(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."

(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,

(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

-57- aid in accordance with standards of "acceptable seamanship."

Sandra & Dennis Fishing,

. 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."

(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

-58- 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,

(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."

(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.

-59- Merritt & Chapman Derrick & Wrecking Co. v. United States,

(1927). Other cases strongly support this interpretation

of salvage law as well.27 See New Harbor Protection Co. v. Steamer

Charles P. Chouteau,

(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).

-60- 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,

(S.D.N.Y. 1896); Smit Americas, Inc. v. M/T Mantinia,

(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

-61- 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.

-62- proposition. See, e.g., Nat'l R.R. Passenger Corp.,

(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.,

(a)(2) (granting the fire department

"authority to . . . order a person to leave a building"); see also

-313b; Del. Code Ann. tit. 16, § 6701A(2);

;

;

-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,

(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.

-63- See, e.g., Alaska Stat. 26.23.020;

; Me.

Rev. Stat. Ann. tit. 37-B, § 742;

;

, 401.309;

. 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,

, 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

-64- 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,

(1st Cir. 2003) (citing Fed. R.

Civ. P. 56(c)). We review an award of summary judgment de novo,

-65- construing the record in the light most favorable to the plaintiffs

and resolving all reasonable inferences in their favor.

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.,

(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.,

.

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

-66- 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,

,

(1982).

-67- 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

-68- 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.

-69- 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.")

-70-