27's occupy a niche market, and are in considerable demand. His own experience in selling boats like the Dialogue was that they not only maintained their value, but often increased in value due to demand.
79. The United States offered by deposition the expert opinion of Richard Day, that the fair market value of the Dialogue was $ 43,000.00. In a report previously prepared for the United States by Mr. Day, he had valued the Dialogue at $ 47,000.00. Mr. Day is a designer and surveyor, not a yacht salesman or broker.
80. Mr. Korpi had purchased the Dialogue in November 1992 for $ 43,000.00. Generally, boats do not appreciate in value, but small, offshore boats such as the Vancouver 27 may hold their value or even appreciate slightly.
81. The BUC Book is a guide to used boat prices compiled by taking information on yacht sales as reported by yacht brokers. The BUC Book gives a high and low retail price for various models of boats. These prices are adjusted for the area the boat is sold in and for the boat's condition and equipment. There is no BUC Book listing for a 1983 Vancouver 27 although there are listings for all other years between 1980 and 1985. In the edition of the BUC book published in 1995, a 1982 Vancouver 27 is valued between $ 35,300.00 and $ 39,200.00 and a 1984 Vancouver 27 is valued between $ 39,800.00 and $ 44,300.00. A 1983 Vancouver 27 can therefore be presumed to have a value of between $ 37,550.00 and $ 41,750.00.
82. There is no area adjustment for Southern California, Dialogue's homeport and its destination when it ran aground. A vessel with above average care and equipped with extra electrical and electronic gear is categorized as "Above BUC Condition" and 10-15% is added to its published price. A vessel which requires no additional work to be ready for sale and is normally equipped for its size is in "BUC condition" and its published price is not adjusted.
83. Adding 10% to the extrapolated values for a 1983 Vancouver 27 yields a range of between $ 41,305.00 and $ 45,925.00. The Dialogue's purchase price of $ 43,000.00 falls approximately in the middle of this range. Given the limited market for Vancouver 27's, the purchase price of the Dialogue less than two years before the grounding is the best estimate of the Dialogue's value.
84. This court finds that the value of Dialogue at the time of its grounding was $ 43,000.00.
II. CONCLUSIONS OF LAW
1. The Court has subject matter jurisdiction under the provisions of the Public Vessels Act, 46 U.S.C. §§ 781-790 and consistent provisions of the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, and Rule 9(h), Fed.R.Civ.P. The parties consented to bench trial before a magistrate judge pursuant to 28 U.S.C. § 636 et seq.
2. Under the Public Vessels Act, a party has the same rights against the United States as he would have against a private person in similar circumstances. Canadian Aviator, Ltd. v. U.S., 324 U.S. 215, 228, 65 S. Ct. 639, 646, 89 L. Ed. 901 (1945).
3. A private party has no affirmative duty to rescue a vessel or person in distress. Basic Boats, Inc. v. U.S., 352 F. Supp. 44, 48 (E.D.Va. 1972); Lacey v. U.S., 98 F. Supp. 219, 220 (D.Mass. 1951); see Frank v. U.S., 250 F.2d 178, 180 (3rd Cir. 1957), see also Bunting v. U.S., 884 F.2d 1143, 1147 (9th Cir. 1989). The Coast Guard, therefore, also has no affirmative duty to render aid to a vessel or person in distress. Daley v. U.S., 499 F. Supp. 1005, 1009 (D.Mass 1980); Shupe v. U.S., 1979 AMC 2282, 2285 (C.D.Cal. 1979) (not otherwise reported). The Coast Guard is not held to any higher standard of care in its rescue operations than a private person. Basic Boats, supra.
4. Although the Coast Guard is under no affirmative duty to render aid to a person or vessel on the high seas, Daley v. U.S., Id., once having undertaken to do so, it is held to the same standard of care as private persons. Petition of U.S., 216 F. Supp. 775 (D.Ore. 1963).
5. One who attempts to render assistance to another at sea must act as a reasonably prudent person under the circumstances of the case. 759 F.2d 1425, 1430-31 (9th Cir. 1985).
6. The standard of care applicable in rescues undertaken at sea is that the rescuer will be liable for damages only (1) for negligent conduct that worsens the position of the victim, or (2) reckless and wanton conduct in performing the rescue. Id., see also Bunting v. U.S., supra.
7. Courts have long recognized the perils of the sea. "Of all the branches of jurisprudence, the admiralty must be the most hospitable to the impulses of man and law to save life and limb and property." Grigsby v. Coastal Marine Service of Tex., Inc., 412 F.2d 1011, 1021 (5th Cir. 1969), cert. denied, 396 U.S. 1033, 24 L. Ed. 2d 531, 90 S. Ct. 612 (1970). A rescue attempt must be considered in the light of the circumstances that faced the rescuers when they acted and not with the wisdom of an "armchair admiral" after the fact. Afran Transport Co. v. S/S Transcolorado, 458 F.2d 164 (5th Cir. 1972); Magnolia Marine Transport v. Frye, 875 F. Supp. 1216 (E.D.La. 1994).
8. In applying these standards, courts will not second guess the decisions made by rescue personnel in the midst of the rescue attempt. Johnson v. U.S., 378 F.2d 732 (9th Cir. 1967). The standard of care exhibited by the rescuers is measured by the unique circumstances of the rescue. Dreher v. U.S., 375 F. Supp. 1061 (N.D.Cal. 1972). Acts which could amount to negligence under other circumstances will ordinarily be found non-negligent when rescue operations are being carried out. Johnson, 378 F.2d 732 (9th Cir. 1967).
9. Negligence of the Plaintiff, alleged to have brought about the circumstances that prompted the rescue effort, is not relevant to calculating comparative fault. Berg v. Chevron U.S.A., Inc., Id.; U.S. v. Gavagan, 280 F.2d 319, 329 (5th Cir. 1960). Such evidence is inadmissible. Fox v. U.S., 934 F. Supp. 1133 (N.D.Cal.1996). This court excluded such evidence at trial, and has not considered it in arriving at its findings and conclusions.
10. Under admiralty law, comparative negligence, although not a complete bar to recovery, will reduce an award by the percentage of plaintiffs' own negligence. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S. Ct. 262, 83 L. Ed. 265 (1939); Kopczynski v. The Jacqueline, 742 F.2d 555 (9th Cir. 1984), cert. denied, 471 U.S. 1136, 105 S. Ct. 2677, 86 L. Ed. 2d 696 (1985); DuBose v. Matson Nav. Co., 403 F.2d 875 (9th Cir. 1968). A plaintiff's comparative fault may constitute the majority of percentage of fault. See, e.g., Saratoga Fishing Co. v. Marco Seattle, Inc., 69 F.3d 1432, 1443-44 (9th Cir. 1995) (plaintiff's comparative fault reduced its recovery by two-thirds).
11. The standard to be used in analyzing plaintiff's conduct is that of a reasonably prudent person under similar circumstances. PROSSER AND KEETON ON TORTS, § 65, pp. 453-54 (W. Keeton ed. 5th ed. 1984); Mroz v. Dravo Corp., 429 F.2d 1156, 1163 (3d Cir. 1970); Almaraz v. Universal Marine Corp., 472 F.2d 123, 124 (9th Cir. 1972). In this instance, Plaintiff Korpi clearly failed to act as a reasonably prudent person by: 1.) by his decision to not replenish his fuel supply, by his failure to get adequate sleep, by his failure to eat nutritiously, by failing to examine or replace his fuel filter, all resulting in creating a condition which hamstrung the MLB crew's ability to function; and 2.) by his physical inability to pull the towline aboard Dialogue. Even if the MLB crew were negligent, their actions do not constitute a superseding "worsening" cause which would relieve Mr. Korpi of responsibility for the grounding. Exxon Co. U.S.A. v. Sofec, Inc., U.S. , 116 S. Ct. 1813, 135 L. Ed. 2d 113 (1996).
12. Defendant, United States of America, is not liable to plaintiff, Mr. Korpi.
Since the court heard evidence regarding damages, the court has made findings of fact regarding damages and will include conclusions of law regarding damages.
13. The measure of damages for the total loss of a vessel is the fair market value as of the date of the loss. Miller v. U.S., 614 F. Supp. 948, 956 (D.Me.1985).
14. Pursuant to 46 U.S.C. § 743, any interest awarded to the plaintiff may only be awarded against the United States at the statutory rate of 4 percent, Firth v. U.S., 554 F.2d 990, 995 (9th Cir. 1977), and interest may only be awarded from the date of judgment.
15. Any finding of fact deemed properly to be a conclusion of law is to be construed as such; any conclusion of law deemed properly to be a finding of fact is to be construed as such.
Petty Officer Sean Rork, the coxswain in command of the Coast Guard motor lifeboat (MLB) that came to the aid of Glen Korpi, summed up his duty thus: "Us. Ours. Them. Theirs."
His duty was to his crew, then to his boat, then to those in peril on the sea, and last of all to the vessel in distress. In this case, Mr. Korpi's sailboat Dialogue was lost, although some of her equipment was salvaged, and Mr. Korpi himself suffered minor injuries. The MLB loud hailer took in a little too much water and some of the crew were seasick. All in all, a successful mission: no loss of life, some loss of property.
The fact is, thanks to the Coast Guard, Mr. Korpi is alive, he suffered only minor injuries, and he is very lucky they got to him as quickly as they did. He breathlessly had acknowledged this when he first replied on the radio, that he thought he could hold on for the twenty minutes it would take for them to reach him. When the MLB reached him, it appeared to the crew that the Dialogue was closer to the shore than reported, that its anchor was dragging and that the boat would soon be on the rocks.
There was convincing testimony that Mr. Korpi was attempting to anchor on bad holding ground: rocks and kelp, where his anchor couldn't get a grip and where his line was probably tangled in the kelp, the anchor dragging, bouncing from rock to rock along the bottom.
The coxswain and crew decided that, in light of the sea conditions, the best course was: 1) to have Mr. Korpi cut the anchor line, both to keep it from fouling the MLB's propellers, and to free up the bow cleat to attach the towline; and 2) to throw him the heaving line; and 3) to get the towline on board and attached to the Dialogue ; and 4) to tow the boat to safety.
The best-laid plans may go astray, however. The Dialogue was not able to maintain her position, since her engine was not functioning.
She had only one bow cleat, which was taken up by the anchorline. Mr. Korpi finally cut the anchorline, at the MLB crew's urging, but the two boats were so far apart that the first toss of the heaving line fell short. The boats were so far apart because the Dialogue, engineless, could not maintain its position, and the MLB had to keep a safe distance, to avoid the anchor line's fouling its screws, or the two boats' colliding.
After the heaving line was thrown the second time, Mr. Korpi tried to pull it on board, but could not, either because he was weakened by his ordeal, or because it was more difficult to pull the line over the stanchion, or because the line was wet and therefore heavy, or because it was hung up on the tow bitt (the fitting around which the line was passed after it came off the reel) on the MLB, or a combination of all these factors.
Most of these factors are attributable to Mr. Korpi: the inability of the Dialogue to maintain its position, the distance between the boats, which made the line pass over more water and get more wet, his weakness, his pulling the line over the stanchion instead of under it.
Only the tow bitt was under the Coast Guard's control, and the crewmen testified that there was no problem with the tow bitt and the line was not hung up in any way.
All indications are that Mr. Korpi himself made his own rescue more difficult.
Coxswain Rork was not obliged to risk his crew or his boat to save Mr. Korpi's boat or even Mr. Korpi's life. The coxswain has ultimate responsibility for his boat and his crew. He heard the opinions of his crew, based on their knowledge and experience. He was entitled to make a judgment, based on the circumstances: weather, sea conditions and the conditions aboard the MLB and the Dialogue, and then to act on that judgment.
The Plaintiff's expert witness, Captain Bourke, also has had extensive sea experience, including two years' service in the Coast Guard, in the early 1950's. His experience is not so much in search and rescue as in the operation of large commercial vessels. The court weighed his opinions accordingly.
The court will not second-guess the judgment of Petty Officer Rork; he was there. He and his crew looked at the sea, the waves, the wind, the rocks, and the conditions aboard both boats. They added it all up and coxswain Rork made a judgment.
If he thought that the sailboat's anchor was not holding, that was his judgment.
If he thought that the clutter of line on the Dialogue's foredeck and the anchor line tied off to the bow cleat would interfere with properly making fast a towline, that is his judgment.
If he thought that it was necessary to release the anchor line from the bow cleat, in order to reduce the danger of the anchor line fouling the MLB's propellers, that was his judgment.
Petty Officer Rork's judgment was, that, given the sea conditions and the condition of the Dialogue, the safest course of action for both vessels was to have Korpi cut his anchor line, to reduce the danger of the line fouling the MLB's propellers, to pass him a towline, and to tow him to safety.
There was a slim margin of safety and a narrow window of time, because the Dialogue was already dangerously close to the rocks when the MLB arrived on-scene, and was moving closer, because its anchor was not holding. The first toss of the heaving line failed to reach the Dialogue, probably because of wind and distance. The MLB couldn't get closer than forty feet at that point because the Dialogue couldn't maintain position, without its engine. On the second toss, Korpi couldn't haul the towline on board because of his own exhaustion and the line's weight, caused by its getting wet in its long passage through the water.
The Plaintiff's expert witness, Captain Bourke, testified that, if the Coast Guard had told him to cut his anchor line, he would have told the Coast Guard "to pound sand." Mr. Korpi didn't do that. He cut the line. He says the MLB crew were shouting at him when he hesitated, so he went ahead and cut it, removing his "margin of safety" and worsening his situation. Captain Bourke also testified that, in his opinion, it was poor seamanship for the MLB commander to demand that Mr. Korpi cut his anchor line before the MLB crew would pass him a towline and take his boat in tow. This court has considered Captain Bourke's opinion, but he was not on scene, and did not have the benefit of observing all the circumstances at the time.
Mr. Korpi believed that the Coast Guard MLB, dispatched to assist him, instead made his situation worse by forcing him to cut the anchorline, before they would throw him the heaving line, and then not fully releasing the tow line, so that he could not get it aboard and tied off to his boat.
Korpi denies comparative negligence for not maintaining his engine, saying that the Coast Guard would not have conducted the operation differently if his boat had been a disabled motor boat. This is illogical. The owner of a motorboat which was more difficult to rescue because its engine had not been properly maintained would also have been negligent.
The fact is, his engine was disabled. The point is, that the Coast Guard would have acted differently, if his engine had NOT been disabled, by his own negligence.
This negligence directly affected his ability to assist in his own rescue. His boat's yawing and swinging at anchor required the MLB to change position constantly, in order to "station keep" and maintain a consistent position relative to his boat. Because of the unpredictability of the Dialogue's motion, the MLB had to maintain greater distance from it, for safety, both of the MLB and of the Dialogue.
Mr. Korpi overlooks his own role in this scenario: if he had had a working engine, he could have maintained his boat's position, the MLB could have maneuvered closer to him in safety, rather than staying as much as forty feet away, the heaving line could have reached him on the first toss, at a shorter distance, and he would have been more likely to get the towline aboard, with less distance for the towline to get weighed down by water and wave action.
Mr. Korpi contends that the Coast Guard worsened his situation, by ordering him to cut his anchor line, before attempting to throw him the heaving line, with the towline attached. If he hadn't cut the anchor line, the MLB might have had to leave him to his fate, and he could have been severely injured or killed, when his boat went up on the rocks.
Not even Mr. Korpi claims that he could have stayed where he was indefinitely, without consequences. He admitted he was in an impossible situation: on a lee shore, close to rocks, with no engine power.
What if the MLB had approached his boat from the stern, or attempted a "crossing the T" approach? What if the Dialogue had then been flung on top of the MLB by a wave, destroying both boats? What if the MLB had T-boned the Dialogue and sunk it, on the spot? What if he had told the Coast Guard to "pound sand," when they told him to cut his anchor line? What if the MLB had then passed the towline while the Dialogue's anchor line was still attached? Would Korpi have been able to get the towline aboard and then release the anchorline from the bow cleat and attach the towline in its place, all at the same time, without falling overboard or being washed over by a wave? What if the Coast Guard had left him where he was?
The court finds that Mr. Korpi deferred to the judgment of the MLB coxswain and crew, probably assuming, with good reason, that the Coast Guard personnel at Group Monterey had better knowledge of seamanship in general, and that area in particular, than he did.
In attempting to rescue Mr. Korpi, the crew of the MLB performed under trying circumstances, in an emergency situation, and at great risk to themselves.
This court finds that if the MLB crew had not attempted to take the Dialogue in tow, the Dialogue would inevitably have gone aground and been destroyed because its anchor was dragging. In the process, Mr. Korpi would likely have incurred serious injuries and might have died.
This court finds that the MLB did nothing to worsen Mr. Korpi and the Dialogue's condition.
This court finds that the United States was not negligent under the circumstances of this rescue.
Plaintiff Glen Korpi has not proven that there was any liability on the part of the United States in this instance. Mr. Korpi himself is at least partially liable for the loss of his sailboat, due to his inability to effectively assist in his own rescue. Korpi has stipulated that there was no negligence on the part of the helicopter crew. For all the reasons delineated above, judgment shall be entered for defendant. Parties to bear their own costs.
F. STEELE LANGFORD
Chief Magistrate Judge
This matter having been tried before the court on November 18-21, 1996, and the court having subsequently issued its Findings of Fact and Conclusions of Law finding no liability of defendant, IT IS HEREBY ORDERED that judgment is entered for defendant UNITED STATES OF AMERICA. Parties to bear their own costs.
F. STEELE LANGFORD
Chief Magistrate Judge