How does this relate to the United States Coast Guard, which is a federal agency, and USCG employees? Does the USCG have a duty to provide rescue on demand? What standards of performance and care apply to the USCG, and under what circumstances can the USCG be held liable?

Under 28 USC Section 2679(b)(1), the U.S. may be held responsible for federal employees’ actions. If there is a law suit, and if the Attorney General will certify that the employee was acting within the scope of their employment, the U.S. will become the defendant in the employee’s stead, and is held to the same standards to which a private citizen would be held.

This does not automatically mean that the U.S. or federal employees will be found liable for a botched rescue. For instance, the Discretionary Function Exception, at 28 U.S.C. Section 2680(a), protects broadly based policy decisions made by such federal employees as those in the USCG.

“Discretion” is a key concept here. USCG personnel make discretionary decisions about rescue operations based on information supplied during a given incident and based on agency policy. In United States v. Gaubert, 499 U.S. 315 (1991), at 325, the term, “discretionary act,” is defined as one involving “choice or judgment; there is nothing in that description that refers exclusively to policy-making or planning functions….” Such discretion allows for a broad judgment and decisions about which choice is the wisest to follow in a situation, based on policy. During rescues, the USCG doesn’t only “go by the book,” but is allowed to use discretion on whether and how to apply policy, because, as most would agree, no policy or standard operating procedure manual covers every imaginable contingency at sea. In fact, the USCG manuals allow for the application of discretion.

In the case of Lewis v. United States, 2002 AMC 2797 (M.D. Fla. 2002), the plaintiff argued that once the USCG made the choice to rescue Joe Lewis, the USCG could not ignore the rescue policies set forth in federal search and rescue manuals. The Court applied the Discretionary Function Exception test, which is a two-part test to see if the government’s liability can be barred: First, does the conduct in question involve some element of judgment or choice? Second, if so, was that judgment or choice founded on policy? If a government employee follows federal statute, regulations, or agency policies, making only broad judgments, his or her actions are shielded by the Discretionary Function Exception, and government immunity remains intact. In Lewis, the Court found that the Discretionary Function Exception applied.

The government immunity found in Lewis is also supported by Dalehite v. United States, 346 U.S. 15 (1953), in which the Supreme Court stated, “Where there is room for policy judgment and decision, there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.”

On the other hand, the U.S. can be held liable for damages caused by the negligence, wrongful act, or omission of a federal employee, if the plaintiff can show that the U.S. owed a duty of care, then breached that duty, and that that breach made matters worse for the victims. The USCG does not necessarily owe a duty to search and rescue, just as no private individual is obligated to be a Good Samaritan, but once it does embark on a mission, it owes the duty to not worsen the situation.

An example of USCG liability is found in Hurd v. United States, 134 F.Supp.2d 745 (DSC 2001), in which three of the four deaths from a nighttime allision resulted from a USCG decision to halt a search before daybreak could reveal any survivors, and where civilian mariners ceased their own search efforts because they believed that the USCG was continuing the search. Because three of the victims could possibly have been saved if the USCG had pursued rescue, the Court held that the USCG had indeed made the situation worse than it already was by prematurely abandoning search and rescue efforts. (The first of the four fatalities was thought to have been immediate and therefore was not preventable by the USCG.)

Contrast Hurd to the recently decided case of Wade v. United States, 2012 WL 2050359 (N.D. Cal.). With evidence that her husband, who was wearing his life jacket, had survived at least for a few hours before succumbing to hypothermia and drowning from subsequent loss of airway freeboard, the widow of Alan Wade claimed her husband would still be alive after a container ship, M/V EVA DANIELSEN, hit Mr. Wade’s fishing boat if the USCG had not called off search operations and had rescued him in time. The Court found the USCG not negligent and not liable for Mr. Wade’s death, however, because even though continued search and rescue efforts likely would have found Mr. Wade alive, the true circumstances came clear to the USCG and all others concerned only after it was too late. A search and rescue mission had been launched, during which both the master of the container ship and then the Coast Guard came to reasonably believe that EVA DANIELSEN had been mistaken in thinking they had hit any vessel. The decision to end the search was based on incomplete or faulty information not of the USCG’s making, and not due to negligence.

Another recent case is Turner v. United States, 2012 WL 2130933 (E.D.N.C.), in which the Turners’ boat overturned as they were returning home at night after a party. The Turners were reported as overdue, but there was not enough exact information about their location, nor enough USCG search assets available, to initiate a formal search. During the night, a USCG helicopter searching for an overdue jet skier in a separate incident kept an eye out for the Turners, but never saw them. (This did not constitute a formal search for the Turners.) It was when the Turners’ boat was found empty the next morning that the USCG launched a formal search. By that time, Ms. Turner had already made it to shore. Mr. Turner’s body was found two days later. Ms. Turner sued for her injuries, but the Court found that the USCG had properly exercised discretion, had not acted negligently, and therefore had not made Ms. Turner’s condition worse than it already had been.

In general, USCG decisions regarding its search and rescue operations are considered discretionary in nature, and are thus covered by the Discretionary Function Exception unless either effort or a lack of effort by the USCG is shown in court to have made things worse for the victims. It lies with the plaintiff to show any negligence; otherwise, the USCG will be immune from liability.

According to the Coast Guard, NORTH SEA was about 60 miles southwest of St. Paul, Alaska, at the time. Conditions at the time are said to have been 6-foot seas and 29mph winds. The Coast Guard deployed a Jayhawk helicopter from Air Station Kodiak and airlifted the fisherman to St. Paul for medical attention.

MAVERICK sunk, while VIKING STORM suffered a dented bow and some scrapes in the collision. None of the VIKING STORM crew were injured, and that crew managed to pull three of the four MAVERICK crewmen from the water. Those three men were reported to be in stable condition after their rescue and taken to Quileute Harbor Marina in La Push.

VIKING STORM is Vancouver BC-based and owned by Leader Fishing, LTD. MAVERICK is based out of Seattle and owned and captained by Darby Dickerson of Port Angeles. Mr. Dickerson was one of the rescued men and is also the father of Kelly Dickerson.

At this time, both the US Coast Guard and the Canadian Transportation Safety Board are investigating why this tragedy happened. As yet, they have not released further details to the public.

Some people argue that there’s no reason to wear a PDF in cold seas because a person would die within two or three minutes from hypothermia. However, for the average healthy person in cold water, it takes hypothermia about 30 minutes to set in. In truth, wearing a PDF adds survival time pending rescue because it keeps you afloat even after you are too cold to move (but are still alive and able to recover). Remaining afloat makes also keeps you more visible to searchers, especially if your PDF has reflective tape and strobe lighting.

In that 2008 NIOSH survey, overall, the most highly rated PDF for comfort was the Hydrostatic Inflation Technology (HIT) suspender type, followed by the foam bibs. Secumatic suspenders and nylon suspender bibs were rated in the middle, while the foam vest and neoprene suspender bibs were rated lowest in on-the-job comfort. (HIT and secumatic types inflate within a few seconds of hitting water; they are designed to not inflate in rain or spray.) The survey revealed that people working in different fisheries using different kinds of gear chose different types of PDFs.

It’s important to note the maintenance requirements and the expiry for each type of PDF on board. For instance, neoprene can degrade through exposure to sunlight or chemicals, as well as during improper storage. Any glues or sealant material used will eventually degrade from extreme temperatures and age. Some PDFs, such as the HIT or secumatic types, will require a new CO2 canister after use. And, each crewmember needs a PDF which fits well.

As per 46 CFR 28.110, all commercial fishing vessels must maintain lifesaving gear for each individual on board. When not being worn, the PDF must also be stored in an area accessible from both the individual’s work station and berth. In 2008, F/V KATMAI sunk with only four of the eleven crewmembers surviving. Much of the safety gear on board KATMAI was old and fell apart or and the crew had not been adequately trained for emergencies, nor even in which immersion suit would fit whom. Subsequently, the 2010 Coast Guard Authorization Act, in 46 CFR 28.270, addresses many of the training and safety gear issues brought to light after the KATMAI tragedy, including safety equipment inspections and training for fall overboard rescues, donning PDFs or immersion suits, and abandoning ship.

In real-life work situations, boat owners and crews must be proactive about safety gear and safety training. Having appropriate safety equipment, including comfortable, well-fitting PDFs for each crewmember – and the crew wearing them on deck – will save lives when the unexpected happens at sea.

Akutan and Akun Islands are located about halfway into the Aleutian Chain, just east of Unalaska Island. The Akutan Island terrain is not amenable to building an airport, which is why Akutan Airport is being built on uninhabited Akun Island. Akun Island is about seven miles east across Akutan Harbor, so hovercraft service is crucial for connecting the airport with the City of Akutan.

The City of Akutan has a permanent population of roughly one hundred individuals. Seasonal workers employed at nearby Trident Seafoods Company swell the population during the summer months to closer to 1,000. Historically, the Akutan community has been served bi-monthly between May and October by an Alaskan Marine Highway System ferry out of Kodiak, and a G-21A Grumman Goose seaplane, operated by Peninsula Airways, when conditions allow. PenAir is the only airline serving this area, with the G-21A flying between Akutan Island and Dutch Harbor on Unalaska Island.

The durable twin-prop G-21A can withstand many of the harsh weather and sea conditions where other sea-landing aircraft would fail. Unfortunately, Grummans were built only during the World War II era, so, over six decades later, maintenance and parts fabrication are difficult and costly. There is no question that the G-21A must be replaced. The thing is, the G-21A lands on water, and any aircraft reliable enough to replace it will require an airport. (The aging seaplane is among the reasons for the airport.) The current plan is to replace the G-21A with a Navajo Chieftain. Because Akutan Airport will be a Class B-II airport, accommodating aircraft with wingspans of 49 to 78 feet traveling between 91 and 120 knots, the Saab 340, which flies out of Anchorage, will also be able to land there. PenAir will continue to be the carrier serving this area.

There have been questions as to why this airport should be built at such expense when it’s so remote and serves a specific, small community. If it weren’t for Trident, would this airport be built at all? Many have eyed the Akutan Airport project with trepidation, recalling the late Alaska Senator Ted Stevens’ well-known “Bridge to Nowhere,” a $398 million project which never got underway after being labeled as pork barrel spending. That bridge would have connected the fifty or so people living on Gravina Island and the airport located there to the town of Ketchikan, replacing a five-minute ferry ride across the half-mile Tongass Narrows.

On the other hand, might this Akutan Airport open the way for positive population and economic growth for this part of Alaska? The City of Akutan is a busy port town, after all, with the Trident facility there said to be the largest seafood processing plant in North America, processing such catch as pollock, halibut, and other fish, king and snow crab, and producing pollock roe, surimi, fish meal, and fish oil. It runs at varying capacities year-round and can process up to three million pounds of fish a day. An argument can be made that what’s good for Trident at Akutan is good for the economy and therefore good for the Alaskan people. If the airport and hovercraft connection works smoothly, better access in and out of Akutan for local citizens, fishers, Trident employees, and other workers, and freer transport of products could result.

As with most things, time will tell, and we’ll have a clearer picture at the end of this year.

What happens when the equipment is thrown away? What happens when the injury scene is purposefully altered? There is a rule of law regarding “spoliation” of evidence.

Spoliation of evidence is generally defined as either willfully or negligently destroying or loosing documents or objects that could be used during legal proceedings. Washington State defines spoliation as the “intentional destruction of evidence.” Inherent in this is the assumption that the party which destroyed the evidence, even if the destruction was negligent and not intentional, knew or should have known the evidence would be legally pertinent. A lack of evidence may also beg the question: Did the evidence exist in the first place?

When a defendant destroys evidence, it’s presumed that the defendants knew that the evidence was unfavorable to them. But first, the spoliation must be shown to affect the case. If the evidence would have been relevant to the case, the defendant then must be shown to have been reasonably knowledgeable that the evidence would have been necessary for the case, and therefore be held culpable. To prove the spoliation was not negligent or willful, the defendant would have to show that the destruction of evidence occurred in the normal course of business, as with normally scheduled records purging, and that they did not destroy evidence out of self-preservation.

Spoliation may result from a plaintiff’s actions, as well. In Vodusek v. Bayliner Marine, Inc., 71 F.3d 148 (4th Cir. 1995), Mr. Vodusek died of burns he suffered in an explosion which occurred when he started the bilge pump soon after having refueled his boat. His plaintiff widow’s expert destroyed evidence during the expert’s inspection of the boat and fuel line. The fact that the expert filmed and photographed his work in a show of “good faith” as he conducted his inspection did not alter the court’s decision that, intentional or not, spoliation of evidence had indeed occurred; the information the expert collected could not be used by the plaintiff to prove her case because the evidence supporting the information had been destroyed, and likewise the defense was unable to access and use the same evidence to support their defense. In Vodusek, without useable evidence, the ultimate result was a verdict for the defense, which the appeals court affirmed. The bottom line is that destroyed evidence is evidence which exists for neither party.

Spoliation may also earn an attorney discovery sanctions. Karl B. Tegland, in Washington Practice: Civil Procedure sec. 21.33, writes: “In Henderson v. Tyrrell…. To minimize risk, cautious attorneys should continue to advise against the destruction of evidence without first obtaining a court order authorizing such destruction.” In other words, it would be wise to preserve anything that may reasonably comprise evidence, including log books, maintenance receipts, and any equipment involved in an accident, in an unaltered state, pending litigation. And certainly, neither party may withhold non-destroyed evidence of which they are knowledgeable.

A very interesting twist on spoliation of evidence is exemplified in Menges v. Cliffs Drilling Company, 2000 WL 765082 (E.D. La. 2000), wherein the employee/plaintiff, who had been complaining of post-accident back pain, had back surgery before an independent medical exam had been performed. The employer/defendant claimed that Mr. Menges had intentionally destroyed evidence by having this pre-IME surgery. The judge ruled that even though Mr. Menges had had a duty to have communicated with his employer about his pending surgery (breach of that duty is a separate matter), repairing the injured back did not constitute spoliation of evidence, especially considering his employer had full access to his medical records prior to the surgery.

Whenever there is injury at sea, especially an injury that involves equipment or physical evidence, it is the best practice to preserve that evidence. But, the passage of time is not a friend to the preservation of evidence. Things get lost. Equipment gets repaired, and broken equipment is tossed. Therefore, the best practice is to have a knowledgeable representative inspect the accident scene and equipment immediately after the injury. Lawyers are usually able to arrange an inspection of the scene while the evidence is fresh and undisturbed. But, sometimes, people delay in obtaining representation. While there may be some legal relief for the spoliation of evidence, courts are unpredictable in their rulings in this area. So, the best advice is not to let the injury scene go cold.

Specific to the commercial fishing industry, the Act provides the USCG more authority to amend and clarify, regulate, and enforce safety standards. Vessel and equipment standards now are to be determined based on where the vessel operates, not on where it’s registered. The goal of these uniform standards is to ensure fairness and to simplify to application of regulations. The emphasis here is on safety, both to prevent accidents and to buy survival time while awaiting rescue. The amendments in the Act include the following:

The master of vessels operating beyond 3NM of baseline must keep an official log of machine maintenance and testing, crew instructions, and safety and emergency drills, as well as a record crew hours, injuries, and illnesses. Medical supplies, appropriate for the size of vessel and crew, are to be accessible on board.

At least once every two years, each fishing vessel operating beyond 3NM of baseline is to be examined dockside for safety and equipment compliance. A successful exam will result in the issuance of a Certificate of Compliance (COC). This COC must be valid and kept on board at all times, and the vessel must be kept in compliance, or else risk being sent back to port for “unsafe operation.”

Training for operators of fishing vessels operating over 3NM beyond the baseline must earn a certificate in a training course, demonstrating their knowledge of seamanship, navigation, charts, weather, maintaining vessel stability and avoiding collisions, fire safety and control, damage control, survival, emergency medical care, drills, and use of communication equipment. The certificate will be valid for five years; a refresher course will keep certification current. (Licenses are required for masters operating vessels over 200 gross tons. This certificate ensures the competency of masters of vessels less than 200 gross tons.)

There are also amendments based on overall length of a vessel. In order to ensure minimum loaded freeboard, thus addressing the safety issue of vessel overload, vessels of 79 feet or more in overall length, built after July 1, 2012, are to be assigned a load line. Additionally, a vessel built or on before July 1, 2012, which undergoes substantial dimension or vessel type modification after July 1, 2012, must comply with an “alternate load compliance program.”

A vessel of 50 or more feet in length, built after July 1, 2012, and operating over 3NM beyond baseline, must meet the classification standards set by a recognized classification society. (The USCG determines which classification society or societies will fulfill this task.) Vessels built prior to July 1, 2012, will remain in their existing class.

Vessels of less than 50 feet in overall length, built after Jan. 1, 2011, must meet equivalent minimum safety standards set for recreational vessels.

To address the safety risk of hull or equipment failure, vessels of 50 feet or more in overall length that operate beyond the 3NM baseline, are built before July 1, 2012, and are 25 years or older as of 2020, and vessels built before July 1, 2012, that have undergone “substantial change” to dimension or vessel type prior to July 1, 2012, must comply with an “alternative safety compliance program,” which includes construction standards requirements. This alternate safety compliance program is to be developed by the USCG and the fishing industry, allowing for regional and fishery differences as necessary, detailed by 2017, and in force by 2020.

This Act also allows crew member who face discrimination after reporting safety violations to use the Department of Labor complaint process, to which employees in other industries have long had access.

Hopefully, this attention to safety in the fishing industry, where many serious at-work injuries occur and where worker death is still the highest in the nation, will save many lives and livelihoods in future.

In 2006, Captain Kevin Murray was working heavy weather as a Columbia River Bar Pilot when he fell in a similar transfer, losing his life. Investigation into Captain Murray’s death in a subsequent maritime wrongful death claim brought by Beard Stacey & Jacobsen revealed a number of deficiencies in the Columbia River Bar Pilots’ training and procedures. Columbia River Bar pilots now vigorously train in search and rescue procedures. The cause of Capt. Dempsey’s accident will be investigated by the Columbia River Bar Pilots, as well as probably the United States Coast Guard and the NTSB.

In 2009, Combined Anti-piracy Task Force 151 (CTF 151) was formed to combat the increasing boldness of the pirates. CTF 151 is an international force which has been commanded by members of various navies from 25 countries, including the U.S., Pakistan, Turkey, South Korea, and New Zealand. The mission of CTF 151 is to protect shipping lanes from piracy and to restore freedom of navigation and legitimate maritime commerce.

A well-known incident off Somalia, which occurred on April 8, 2009, involved the American-flagged M/V MAERSK ALABAMA, 508-foot container ship. At that time, there was an advisory that ships keep at least 600 nautical miles (nearly 690.5 miles) from the Somali coast. MAERSK ALABAMA was 240 nautical miles off the coast when pirates boarded her. Miguel Ruiz, John Cronan, and Richard E. Hicks were crewmembers who were confined and roughed up by the pirates; these men sought compensation under the Jones Act and General Maritime Law for personal injuries resultant of the pirates’ treatment of them. Ruiz, et al. v Waterman Steamship Corporation and Maersk Line Limited – 2011 WL 4089416 (Tex.App.-Houston [1st Dist.] 2011). Under the Jones Act, the plaintiffs in Ruiz seek to recover damages by showing employer negligence. That case has not yet been resolved and the final outcome is uncertain.

There have not been many cases decided by courts facing the question of employers’ duties to protect employee seamen sailing in areas known for pirate activity. Some of the questions likely to arise at trial include: What were the duties of the employer (Maersk in the Ruiz case) toward its crew in waters known for pirate attacks? Did the employers ignore advisories and warnings? Had the employers implemented any of the self-protection measures discussed in BMP4? Could they have avoided attack and capture by sailing a different route? Were the crew trained, and should they have been trained, for such an emergency? In other words, was the employer negligent toward its crew, and thus liable for the injuries caused by the pirates?

Our guess is that courts will rule that the employer must take reasonable steps to protect employees sailing in dangerous situations. This may require special training for the crew. It may require hiring of guards. Employers may have to modify their vessels in some way. We will keep an eye on this developing area of law and report what we find.