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Gough v. U.S. Navy

August 25, 2009

HAROLD H.W. GOUGH, IN PERSONAM, TYEE, U.S. DOCUMENTED VESSEL, IN REM, PLAINTIFF,
v.
U.S. NAVY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

DISMISS ORDER GRANTING MOTIONS TO

Defendant Western Maritime, Inc. dba Vessel Assist San Diego ("Vessel Assist") and Defendants San Diego Unified Port District ("Port District") and San Diego Harbor Police ("Harbor Police") have filed motions to dismiss Plaintiff's Complaint. For the reasons discussed below, Defendants' motions to dismiss are GRANTED.

I. FACTS

This case arises out of damage that was done to Plaintiff's sailing vessel, the "Tyee," when it was beached during inclement weather. Plaintiff claims that the beaching could have been prevented if Defendants rendered proper assistance.

According to Plaintiff's Verified Complaint, on May 23, 2008, Plaintiff and a passenger were on board the "Tyee," a 48' ketch-rigged double-ender, which was anchored off the beach or shoal located just south of the entrance to San Diego Bay (a U.S. Navy Security Zone designated as "Western Beach"). (Compl. ¶ 20.) Plaintiff contends that the sole reason the "Tyee" was anchored there rather than in the San Diego Bay's designated free anchorages was the result of a last minute cancellation of his anchorage permit. (Compl. ¶ 21.) Plaintiff contends that any anchorage permit granted by the city of San Diego is conditioned on the understanding that such permit is not revocable. (Id.)

Later in the day, the local offshore marine area was in a small craft warning status due to adverse and inclement weather. (Compl. ¶ 26.) Due to the coming of nightfall, Plaintiff attempted to return to the safety of the "La Playa" anchorage. (Id.) Plaintiff is an experienced sailor. (Compl. ¶ 28.) However, Plaintiff encountered difficulty in raising the vessel's main sail because of a fouled halyard. (Compl. ¶ 30.) Because Plaintiff was unable to clear the halyard, Plaintiff utilized the mizzen and jib sails to commence sailing back into the bay. (Id.)

Due to the reduced sails, Plaintiff had great difficulty navigating the "Tyee" and spent approximately three hours attempting to sail around the tip of the jetty. (Compl. ¶ 27.) At this time, Plaintiff was approached by a U.S. Coast Guard vessel. (Id.) The Coast Guard crew asked Plaintiff if he was in trouble. (Id.) Plaintiff responded that he was experiencing great difficulty going upwind past the jetty due to his equipment failure and requested a short tow to clear the jetty tip and sail safely back into the San Diego Bay. (Id.) Plaintiff explained that he was in danger of going ashore if the vessel's anchor failed to hold. (Compl. ¶ 30.) On the orders of a superior officer, the Coast Guard crew refused to render any assistance to Plaintiff or the vessel. (Compl. ¶ 29.) The Coast Guard crew told Plaintiff that they would remain in the immediate area and that he could call them on VHF Channel 16 if the need arose. (Compl. ¶ 31.) Plaintiff anchored the Tyee.

At approximately 10:30 p.m. later that same night, Plaintiff awoke when he felt the bottom of his vessel grazing a hard surface, possibly the beach's bottom. (Compl. ¶ 32.) Plaintiff called the Coast Guard on Channel 16 and told them he had a developing emergency situation and that it was possible that the "Tyee" was dragging its anchor and was going up on the beach. (Id.) The Coast Guard responded that help was on the way. (Id.)

Approximately 20 minutes later, a San Diego Harbor Police vessel arrived. (Id.)

The San Diego Harbor Police ordered Plaintiff and his passenger to put on life vests and get into the vessel's dinghy. (Compl. ¶ 33.) According to Plaintiff, he was ordered to turn over command of the vessel to the San Diego Harbor Police. (Id.) Plaintiff complied with the Harbor Police officers' instructions, assuming that they would take a line off the vessel's bow and rotate the vessel off the soft grounding into deeper water where it could be reanchored safely. (Compl. ¶ 34.)

Plaintiff and his passenger were delivered safely to the docks at Shelter Island. (Compl. ¶ 36.) However, the Harbor Police did not make any efforts to move the vessel to safety. (Compl. ¶ 34.) The Harbor Police did contact civilian private towing services, defendants Sea Tow and Vessel Assist, to inquire whether they would provide private assistance. (Compl. ¶ 37.) These private businesses did not provide any assistance because Plaintiff was unable to verify the availability of a minimum of $5,000 in immediate cash funds to pay for their services. (Id.)

A U.S. Navy security boat was at the police dock and initially offered to render assistance by pulling the "Tyee" off the beach. (Compl. ¶ 38.) However, the crew's supervisor denied permission to render assistance. (Id.)

According to Plaintiff, there was a one-hour window of opportunity to safely pull the "Tyee" off the beach before the tide started to go out. (Compl. ¶ 39.) Because the vessel was not extracted during this window, unnecessary and costly damage was done to the vessel when it was ultimately extracted by Sea Tow under contract with the U.S. Coast Guard. (Compl. ¶ 40.)

Plaintiff asserts claims against the U.S. Navy, U.S. Coast Guard, the Harbor Police, Sea Tow Vessel Assistance ("Sea Tow"), and Vessel Assist based on their alleged failure to render maritime emergency distress assistance, resulting in the preventable beaching of the "Tyee."*fn1 Plaintiff also asserts a claim against the Port Authority based on its alleged ...


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