HURD v. U.S.Nos. CIV. A. 2:99-0240-18, CIV. A. 2:99-0241-18, CIV. A. 2:99-0242-18, CIV. A. 2:99-0243-18.
134 F.Supp.2d 745 (2001)
Deirdre Lynn HURD, as Personal Representative of the Estate of Bobby Lee Hurd, Jr., deceased, Plaintiff,
v.
UNITED STATES of America, Defendant.
Mary E. Moore Cornett, as Personal Representative of the Estate of Michael Paul Cornett, deceased, Plaintiff,
v.
United States of America, Defendant.
Mary E. Moore Cornett, as Personal Representative of the Estate of Michael Wayne Cornett, deceased, Plaintiff,
v.
United States of America, Defendant.
Mary E. Moore Cornett, as Personal Representative of the Estate of James Daniel Cornett, deceased, Plaintiff,
v.
United States of America, Defendant.
United States District Court, D. South Carolina, Charleston Division.
March 8, 2001.
Gedney M. House, III, Charleston, SC, Dennis J. Rhoad, Charleston, SC, for plaintiff.
John
K. Douglas, US Attorneys Off., Charleston, SC, Debra J. Kossow, Scatt
Memmott, Dept. of Justice, Washington, DC, for defendant.
OPINION
NORTON, District Judge.
I. BACKGROUND
The United States Code provides that "[i]n 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
..., the Coast Guard may: (1) perform any and all acts necessary to
rescue and aid persons and protect and save property." 14 U.S.C. §
88(a)(1). These tragic cases arise out of a distress call received by
the United States Coast Guard in late December 1997.
1
On December 26, 1997, forty-nine year old Michael Wayne Cornett, an accomplished sailor,
2
and his two sons, sixteen-year old Michael Paul Cornett and
thirteen-year old James Daniel Cornett, drove from Hiltons, Virginia to
the Light Keeper's Marina in Little River, South Carolina to pick up the
Sailing Vessel
Morning Dew ("S/V
Morning Dew"), a
thirty-four-foot sailboat purchased by the family one month earlier.
(Defendant's Exhibit 3, Tr. at 75-76) A fourteen-year old cousin, Bobby
Lee Hurd, Jr., from Mountain City, Tennessee, accompanied the Cornetts
on this trip. Michael Wayne Cornett intended to sail the S/V
Morning Dew from Little River, South Carolina to Jacksonville, Florida along the Intracoastal Waterway ("ICW"). (Tr. at 65, 134, 137)
[134 F.Supp.2d 749]
On December 28, 1997, the S/V
Morning Dew
proceeded from North Myrtle Beach, South Carolina and sailed through
Winyah Bay into the open ocean, instead of proceeding on the ICW.
(Defendant's Exhibit 3; Plaintiffs' Exhibit 3 (SAR Case Study Report at
5)) The National Weather Service had issued a small craft advisory from
Little River Inlet, South Carolina to Savannah, Georgia with winds
predicted to exceed twenty-five knots from the east. Seas were predicted
to range from five to eight feet. Areas of rain and embedded
thunderstorms were expected to reduce visibility below one nautical
mile. (Defendant's Exhibit 14, Plaintiffs' Exhibit 3, SAR Report at 3)
The actual conditions were observed to be "raining, windy, rough." (Tr.
at 316)
At approximately 0217 (2:17 a.m.) on December 29, 1997, the S/V
Morning Dew
allided with the north jetty leading into Charleston Harbor. (Tr. at
147; Peschel Deposition at 82-83; Lee Deposition at 34) All four persons
on board the S/V
Morning Dew drowned at sea. Their personal
representatives claim the decedents lost their lives because of the acts
and/or omissions of the Coast Guard.
3 There are no eyewitnesses to the accident and no survivors.
Plaintiffs sued Defendant under the Federal Tort Claims Act, 28
U.S.C. §§ 1346(b), 2671 et seq. and alternatively as a claim in
admiralty with jurisdiction under general maritime law, 28 U.S.C. § 1333
and under the Suits in Admiralty Act, 48 U.S.C. §§ 741-752 and the
Public Vessels Acts, 46 U.S.C. §§ 781-790. As discussed below, this
court has admiralty jurisdiction over this case. This court has
considered the trial testimony, deposition testimony, exhibits, pre- and
post-trial memoranda and enters the following findings of fact and
conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil
Procedure.
II. EVIDENTIARY ISSUES
A. Admissibility of the National Transportation Safety Board Report
The United States objects to the use of certain testimony of Coast
Guard witnesses before the National Transportation Safety Board ("NTSB")
on hearsay grounds. This court, however, finds that the testimony of
Shelley, Sass, and DaPonte before the NTSB does not constitute hearsay.
See Fed.R.Evid. 801(d)(2)(A)(C)(D) (Admission of a Party-Opponent).
4 Shelley, Sass, and DaPonte
[134 F.Supp.2d 750]
testified before the NTSB as agents of the United States Coast Guard. As such, their statements regarding the S/V
Morning Dew
incident do not constitute hearsay. Moreover, the NTSB report itself
falls within a hearsay exception, Rule 803(8) (Public Records and
Reports). Rule 803(8) provides that the following information shall not
be excluded by the hearsay rule:
Records, reports, statements, or data compilations, in any form, of
public offices or agencies setting forth ... (B) matters observed
pursuant to duty imposed by law as to which matters there was a duty to
report ... or (C) in civil actions and proceedings against the
Government in criminal cases, factual findings resulting from an
investigation made pursuant to authority granted by law, unless the
sources of information or other circumstances indicate lack of
trustworthiness.
Courts have consistently held that the factual portions of a NTSB
report are admissible into evidence, while excluding any agency
conclusions on the probable cause of the accident.
See Mullan v. Quickie Aircraft Corp., 797 F.2d 845, 848 (10th Cir.1986);
Keen v. Detroit Diesel Allison, 569 F.2d 547, 549-51 (10th Cir. 1978);
Texasgulf, Inc. v. Colt Electronics Co., Inc., 615 F.Supp. 648, 651 (S.D.N.Y. 1984);
Fidelity & Casualty Co. v. Frank, 227 F.Supp. 948, 949 (D.Conn.1964);
Wenninger v. United States, 234 F.Supp. 499, 518 (D.Del.1964),
aff'd, 352 F.2d 523
(3d Cir.1965). Accordingly, the factual portions of the NTSB report,
specifically the testimony of Shelley, Sass, and DaPonte, are admissible
in this case.
B. Motion to Take Judicial Notice of the National Search & Rescue Manual
Following the trial in this matter, Plaintiffs filed a Motion to Take
Judicial Notice of the National Search and Rescue Manual Sections 230,
232, 652, 713, and 714. Rule 201 of the Federal Rules of Evidence
mandates that a court must take judicial notice of an adjudicative fact
when a party so requests.
See Fed.R.Evid. 201. "A judicially
noticed fact must be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of the
trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned."
Id.
Finding that these excerpts do not pertain to facts in dispute, namely
that the Coast Guard "may" request assistance from third parties during a
search and rescue mission, this court grants Plaintiffs' Motion to Take
Judicial Notice of these excerpts.
III. CREDIBILITY
For some reason that is impossible for this court to discern, the
Government did not deign to call any live witnesses at the trial of this
case. This "tactical decision" (if that is what it was) has forced the
court to determine credibility on paper. The Government's failure to
present any live witnesses at trial is curious, considering this case
was tried in Charleston, South Carolina where many of those involved in
this incident were stationed.
5 In determining
[134 F.Supp.2d 751]
the credibility of the Coast Guard witnesses, this court cannot ignore
that Lt. Daponte admittedly and intentionally did not tell the truth to
state law enforcement authorities investigating the S/V
Morning Dew
incident. (Deposition of Daponte at 46, 48) Daponte testified that he
was instructed not to tell the whole truth by his Group Commander and
District Office. (Deposition of Daponte at 47) Commander Manson Brown
also acknowledged that the Coast Guard intentionally withheld
information from state law enforcement agencies investigating the S/V
Morning Dew incident. (Deposition of Brown at 64, 65, 67, 68, 69, 70)
In addition, this court must take notice of the circumstances
surrounding the Coast Guard's visit to Ms. Cornett and the Hurd family
on March 17, 1998. It is apparent that CDR Brown,
6
representing the Coast Guard, intended to play the 0218 tape for the
Hurds and Ms. Cornett and intentionally misrepresented the purpose for
his visit to the families. (Deposition of Brown at 24) It is also clear
that CDR Brown had been made aware that the families had legal
representation prior to visiting Ms. Cornett and the Hurd family at the
Hurd's home, but chose to ignore this fact. (Deposition of Brown at 22,
23, 25, 27) CDR Brown purposefully did not tell the families or their
attorneys that he had a tape recording of the 0217 Mayday call or that
he was going to play it for them. (Deposition of Brown at 28) It is also
clear that the sole purpose of CDR Brown's visit was to play the tape.
(Deposition of Brown at 30) The Coast Guard, specifically CDR Brown and
Lt. Daponte, knew about the 0217 Mayday call by December 31, 1997.
(Deposition of Brown at 42, 43) CDR Brown told his District Chief of OPS
about the Mayday call on December 31, 1997. (Deposition of Brown at 47,
48) Needless to say, the playing of the tape shocked the parents of the
dead boys, especially Libby Cornett. The Coast Guard did not disclose
the tape to the state investigating agency, the South Carolina
Department of Natural Resources, until March 20, 1998. (Plaintiffs'
Exhibit 8 at Att. 50) Based on the foregoing, the internal
inconsistencies in the testimony of many of the Coast Guard witnesses,
and after consideration of the testimony of the Coast Guard witnesses at
the NTSB hearing, this court finds that much of the government's case
lacks credibility.
7
IV. FINDINGS OF FACT
A. The Intended Voyage
1. Michael Wayne Cornett planned to sail the S/V
Morning Dew
from Little River, South Carolina to Jacksonville, Florida along the
ICW. (Tr. at 65, 134, 137) He had no intent to travel on the open ocean.
(Tr. at 76, 137)
2. Michael Wayne Cornett was at the helm and the three boys were on the bow when the S/V
Morning Dew
departed the ICW southeast of Georgetown, South Carolina for the open
ocean with sails reefed, cruising on engine power. (Plaintiffs' Exhibit
3, SAR Report at 5) The weather was cool and sunny when the S/V
Morning Dew entered the open ocean. (Plaintiffs' Exhibit 3)
3. Mariners admittedly confuse where the shipping channel and the ICW
separate and often miss the ICW and continue into the open ocean. At
this junction, a vessel operator can go either to the north
[134 F.Supp.2d 752]
or south of an island in the midst of where Winyah Bay narrows. One
must take the southern branch to be in a position to turn into the
narrower ICW. If a vessel operator takes the northern branch, he will
miss the ICW. (Deposition of Peschel at 41-42) The S/V
Morning Dew missed the ICW.
B. The S/V Morning Dew Allides With the North Jetty Leading into Charleston Harbor
4. At some time prior to 0217 (2:17 a.m.), the S/V
Morning Dew struck the north jetty leading into the Charleston Harbor. (Tr. at 147)
5. More likely than not, when the S/V
Morning Dew hit the
north jetty, Michael Wayne Cornett was thrown overboard. Mr. Cornett was
fully clothed when his body was found, while the children were scantily
clad. (Defendant's Exhibit 3) Specifically, Bobby Lee was found wearing
only blue jeans and socks. (Defendant's Exhibit 3) Daniel was wearing
only boxer shorts, while Michael Paul was wearing an improperly secured
life jacket, a pullover shirt, and boxer shorts. (Defendant's Exhibit 3)
The father, however, had on three shirts, a jacket, a windbreaker, and
two pairs of pants. If Mr. Cornett had been aboard the boat with the
children after the allision, he would have insisted that the children be
fully clothed. (Tr. at 297) Furthermore, two commercial ships passed
within approximately 650 yards of the S/V
Morning Dew between 0217 and 0627. (Tr. at 321, 323) Although the S/V
Morning Dew
was equipped with a strobe light and flares, neither were used to
attract the attention of the ships. Mr. Cornett was an experienced
mariner. If he had been aboard the S/V
Morning Dew after the allision, he certainly would have used the strobe light and/or flares to signal for help.
C. The Mayday Call
6. At 0218 (2:18 a.m.) on December 29, 1997, one of the children on
board, James Daniel Cornett, sent a broadcast via channel 16 VHF-FM
(156.8 MHz), the international maritime distress and hailing frequency.
(Plaintiffs' Exhibit 3) This call stated "Mayd ... Mayday, U.S. Coast
Guard, come in."
8 (Defendant's Exhibit 10 at 13)
7. Petty Officer Shelley was the onduty watchstander at the U.S.
Coast Guard Group Charleston, South Carolina Operations Center. Petty
Officer Shelley testified that when he heard this call,
9 the only words decipherable were "U.S. Coast Guard, U.S. Coast Guard" from a teenager's voice. (Deposition of Shelley at 74-75)
10
[134 F.Supp.2d 753]
8. Fifteen seconds after receiving the call, Shelley twice attempted to
contact the caller. Approximately four minutes after the first call,
the Coast Guard received another call, which was from a similar voice,
and Shelley twice more attempted to contact the caller. (Defendant's
Exhibit 10 at 13-14) Shelley did not log in either call, (Deposition of
Shelley at 35), nor did he notify his supervisor, (Deposition of Shelley
at 39), until the afternoon of December 29, 1997. (Deposition of
Shelley at 62) Shelley also did not rewind the tape to determine the
contents of these calls, although he had the ability to do so.
(Deposition of Shelley at 35-39)
D. The Distress Call
9. At approximately 0627 hours, Gerald Lucas, a Charleston Harbor Pilot, was piloting the M/V
Pearl Ace,
a 617-foot automobile carrier, through the jetties and into Charleston
Harbor when a boatswain reported to the onboard pilot that he heard
someone in the water scream for help off the starboard side of the M/V
Pearl Ace near buoy 22. (Plaintiffs' Exhibit 3 at 7 (SAR Report); Deposition of Shelley at 45)
10. Mr. Lucas reported this to the Pilots' Office, which in turn
reported it to the Charleston Coast Guard Operations Center at 0627
hours. (Defendant's Exhibit 11) Petty Officer Shelley received the call
from the Pilots' Office reporting somebody calling for help in the water
at or near buoy 22. The pilot boat advised Shelley that it was going to
the area.
11 (Defendant's Exhibit 11; Deposition of Shelley at 47) Buoy 22 is at the entrance of the
[134 F.Supp.2d 754]
harbor. (Defendant's Exhibit 11; Deposition of Shelley at 46) Shelley
stated that he would "alert the station" and requested a call back once
the pilot boat got to the vicinity. (Deposition of Shelley at 43-47;
Transcript of Call at Defendant's Exhibit 11) Shelley then left duty,
first advising Petty Officer Hartzog, Shelley's relief, and ODO Sass,
who was on duty as the Operations Duty Officer, (Plaintiffs' Exhibit 3
at 7), of the 0627 hour call. (Deposition of Shelley at 49) Shelley did
not notify Operations Duty Officer ("ODO")
12 Sass of the 0218 transmission until later that afternoon. (Deposition of Shelley at 62)
11. The transcribed transmission reflects the 0627 call reported a
call for help at or near buoy 22 from somebody in the water. (Deposition
of Shelley at 45, 64, 65) ODO Sass acknowledged that what was reported
in the 0627 call rose to the level of "a confirmed distress call."
(Deposition of Sass at 18, 24, 25) After looking at the transcript of
this call, ODO Sass also testified that Shelley "accurately
communicated" the 0627 call to Sass. (Deposition of Sass at 17) Sass,
therefore, knew and perceived that there was a report of someone in the
water yelling for help near buoy 22. Because of this, Sass perceived the
need for rescue and aid. Shelley's testimony confirms that he "fully"
briefed Sass as to the "distress" call, which confirms that Sass also
knew that there was a report of somebody in the water. In fact, when
Sass called Shelley later in the day after the boys' bodies were found,
Sass brought up the fact that the Pilots' Office had reported "they had
heard people screaming." Sass could only have learned of this by Shelley
having repeated it to him at 0627 because Shelley went home and did not
talk to Sass until Sass called Shelley at 1620 (4:20 p.m.). (Deposition
of Shelley at 43-44, 49-52, 56-57, 63-65, 67-70, 72-73, 89)
(Plaintiffs' Exhibit 4)
13
[134 F.Supp.2d 755]
[134 F.Supp.2d 756]
12. The call received by Petty Officer Shelley from the Pilots' Office
and thereafter repeated to Sass was a distress call. (Shelley's
Deposition at 71-73; Lt. Daponte's Deposition at 75) Lt. Daponte, Sass's
Command Duty Officer (CDO), acknowledged that the call from the pilot
boat was an active distress call received by the Coast Guard and the
kind of call to which the Coast Guard responds. (Deposition of Lt.
Daponte at 74) Petty Officer Shelley acknowledged that the information
he communicated to Sass regarding the information from the pilot boat
would fall into the category of the number one priority of the Coast
Guard. (Deposition of Shelley at 70) Petty Officer Shelley conceded that
this call constituted a distress call. (Deposition of Shelley at 72-73)
Lt. Hartzog, who relieved Shelley of his duties at the Coast Guard
station on the day of the Cornett/Hurd incident, acknowledged that the
Coast Guard would deem this type of call a distress call. (Deposition of
Hartzog at 25-26) ODO Sass agreed that if someone reported they
actually heard voices in the water, this would be a confirmed report of
distress and he further acknowledged that on a confirmed report of
distress, he would take action, "100% of the time." (Deposition of Sass
at 18-19, 24) Admiral Norman Saunders testified that "[i]f we [the Coast
Guard] knew there was a person in the water in any season of the year
... it would be our responsibility to respond and we would respond as
quickly as we could." (Deposition of Saunders at 21) Commander William
Dean Lee also testified, after reading the transcript of the call, that
the cries for help at sea under the existing weather conditions would
constitute a distress call. ("In my opinion, screams or cries for help
at sea in those conditions constitutes distress, but that is my
opinion") (Deposition of Lee at 40, 42) Accordingly, this court finds
that Sass received and perceived that he had a confirmed report of distress at approximately 0627 on December 29, 1997.
13. Sass, acting within the course and scope of his duties, responded
to the distress call. Sass testified that on a confirmed report of
distress he would take action 100 percent of the time. (Deposition of
Sass at 19, 22, 23) Taking action included, as part of the Search and
Rescue ("SAR") process, gathering additional information. (Deposition of
Sass at 20, 60, 61) In this case, gathering information consisted of
confirming the location of buoy 22 on the chart in the Operations
Center, (Deposition of Sass at 15, 61, 62), gathering information from
the pilot boat, accumulating information about weather and tides, and
deciding which assets to send. (Deposition of Sass at 20, 22, 25, 26,
40, 59, 60, 62, 63) The Coast Guard utilized this information to
evaluate how to respond to this distress call.
14 (Deposition of Sass at 21, 25, 26, 61-63, 63, 65)
E. The Search and Rescue Response by the United States Coast Guard
14. The Coast Guard may initiate an immediate response when a mariner
is in danger. Private entities may assist the Coast Guard in Search and
Rescue Operations. (Plaintiffs' Exhibit 13, U.S. Coast Guard Addendum
to the SAR Manual)
15
15. Upon being fully briefed on the 0627 call by Shelley, Petty
Officer Sass made a decision to render aid to Plaintiffs' decedents and
used the pilot boat as a Coast Guard response in this undertaking. This
was not an unusual way for the Coast Guard to respond. (Footnote 15,
supra)
Indeed, the testimony of Lt. Daponte was to the effect that Sass deemed
the pilot boat's checking out the area "for us" as being a timely and
appropriate response.
[134 F.Supp.2d 757]
(Deposition of Daponte at 81; Plaintiffs' Exhibit 17, NTSB Report,
Unsworn Statement of Daponte at 21) Petty Officer Sass confirmed that if
no one else was going to the area, the Coast Guard would have sent a
boat to search the area. (Plaintiffs' Exhibit 16, NTSB Report, Unsworn
Statement of Sass at 12). He testified "[i]t's what we would have to
have done if — there was nobody going." (Plaintiffs' Exhibit 16, NTSB
Report, Unsworn Statement of Sass at 12). He also acknowledged that when
a pilot boat reports a person yelling for help in the water, a boat,
and perhaps a helicopter may be sent. (Deposition of Sass at 57) Sass
testified before the NTSB that the pilot boat's rescue capabilities were
as sophisticated as the Coast Guard's capabilities. (Plaintiffs'
Exhibit 16, NTSB Report at 38) ("Well, as far as — like that, as long as
they got a spotlight and they got a pair of eyes, it'd be just as good
as one of our boats looking.") Sass further testified that after the
pilot boat searched the area that he intended "to take appropriate
action from there." (Plaintiffs' Exhibit 18, NTSB Report, Unsworn
Statement of Sass at 91) Keeping in mind that Sass was aware of a report
of people in the water yelling for help, this clearly indicates that
Sass had already decided to render whatever aid was appropriate and was
doing so, using the pilot boat as an initial response. The court finds
that the Coast Guard responded to the 0627 distress call by using the
pilot boat as its initial resource to render aid to mariners in
distress. (Deposition of Lee at 55)
16. Gathering information is part of the SAR process. (Deposition of
Sass at 60) A Coast Guard rescue involves more than simply putting a
boat in the water. Aiding someone in distress is a continuum: it has a
beginning, a middle, and an end. It is an evolving process. The first
step is the gathering of information, next the evaluation of
information, and finally deciding the most appropriate resources
relative to rendering aid. (Deposition of Retired Admiral Saunders at
55-56)
16
17. Petty Officer Sass received information from the pilot boat as
part of the decision making process, which began a SAR response.
(Deposition of Commander Lee at 55-60) Sass acknowledged that the pilot
boat was on the scene looking and that they were going to call the Coast
Guard back with information. He further acknowledged that using the
pilot boat to search was an adequate response. (Deposition of Sass at
26-27) Sass testified that when the Coast Guard deploys a boat, the
Coast Guard sends out a forty-one foot rescue boat with a search light,
radar, and crew. (Deposition of Sass at 40) When comparing a forty-one
foot Coast Guard boat and one of the pilot boats, Sass noted that "as
long as they got a spotlight and they got a pair of eyes, it'd be just
as good as one of our boats looking." (Plaintiffs' Exhibit 16, NTSB
Report, Unsworn Statement of Sass at 38) He further noted that the pilot
boat knows the harbor "probably better than our guys I'm sure,
especially the waters."
17 (Plaintiffs' Exhibit 16,
[134 F.Supp.2d 758]
[134 F.Supp.2d 759]
[134 F.Supp.2d 760]
NTSB Report, Unsworn Statement of Sass at 38-39)
18. Based on the facts set forth above, I find that the Coast Guard
made the decision to and did undertake to render aid to Plaintiffs'
decedents at the time of the 0627 call from the harbor pilot.
18
19. The pilot boat reported to the Coast Guard at 0648 (6:48 a.m.)
that the pilot boat did not see anything and did not hear anything after
searching the area near buoy 22. (Plaintiffs' Exhibit 1)
20. The sunrise on December 29, 1997, was at 0722 (7:22 a.m.). (Plaintiffs' Exhibit 3 at 3)
F. ODO Sass Suspends the Search to the Detriment of Bobby Lee Hurd, and Daniel and Paul Cornett
21. Sass, upon receiving the 0648 report that the pilot boat did not
find anything, made the decision to suspend the search (Deposition of
Dein at 69, 148) and took no further action. (Deposition of Dein at 185;
Deposition of Daponte at 82) Sass acknowledged that the information
from the pilot boat was information from a "resource in the area,"
(Deposition of Sass at 64) which he used in his decision making process
"with a view toward the prospective rescue." (Deposition of Sass at 63)
However, upon receiving the return call stating that the pilot boat had
searched the area with negative results, Sass made the decision to do
nothing further. Sass, "did not ask any amplifying questions regarding
search conditions, area searched, visibility," (Deposition of Sass at
39; Plaintiffs' Exhibit 3 at 7-8), although Sass had the capacity to
tell the pilot boat to do so, (Deposition of Sass at 34), and "no vessel
was dispatched to double check the area after sunrise." (Deposition of
Sass at 42; Plaintiffs' Exhibit 3 at 8)
22. Based upon the facts of the case, "the search should
not
have been allowed to terminate before first light." (Plaintiffs' Exhibit
3 at 13) Richard Dein testified that Sass's decision to call off the
search was unreasonable, and the exercise of no care at all, and that
Sass "should have taken the exact opposite action of what he did." He
further testified that "the normal progression of events in the SAR
system is that you go out and you look for something, if you don't find
it, you don't diminish your efforts, you increase the efforts; and he
didn't do that." (Deposition of Dein at 148-49, 156) Lt. Daponte
acknowledged that what Sass did with regard to the pilot boat's efforts
was "inadequate." (Deposition of Daponte at 83)
23. The decision to suspend the search and take no further action
constituted a failure on the part of the Coast Guard to exercise any
care toward Plaintiffs' decedents. Admiral Peschel, Defendant's Expert
Witness, testified that the decision to do no more was the failure to
exercise any care for the persons in distress. (Deposition of Peschel at
124) Commander Lee's SAR Case Study summarized, that based on the facts
of this case, "the search should
not have been allowed to terminate before first light." (Plaintiffs' Exhibit 3 at 13)
24. I find that it was completely foreseeable that the failure of
Sass to do anything further upon receipt of the 0648 return call would
result in injury and/or death to Plaintiffs' decedents. The Coast Guard
was aware that a boatswain on the
Pearl Ace reported hearing someone yelling
[134 F.Supp.2d 761]
for help in the water and also knew that the pilot boat had searched
the area from which the yelling was heard, before daylight, with
negative results. The Coast Guard was also aware that someone in the
water was in threat of serious bodily injury or death. (Deposition of
Sass at 44) This court concludes that any reasonable search would have
begun at buoy 22, which is less than 1250 yards from where the boys were
found on Sullivan's Island. The search would also have included the
south end of Sullivan's Island, the harbor entrance, and the entire
length of the north and south jetties. (Plaintiffs' Exhibit 3 at 13)
Thus, it is totally foreseeable that the suspension of the search would
result in serious bodily injury and/or death to Plaintiffs' decedents.
25. The pilot boat reasonably expected the Coast Guard to send a
Coast Guard boat and they discontinued their efforts to the detriment of
Bobby Lee Hurd and Daniel and Paul Cornett.
19 The pilot boat's reliance upon the Coast Guard was reasonable. Gerald Lucas, the Charleston Harbor Pilot aboard the
Pearl Ace,
testified at trial that he fully expected a Coast Guard boat to search
the area. (Tr. at 319) Whitmarsh Smith, President of the Charleston
Harbor Pilots' Association, agreed with Lucas and testified that the
pilot boat would have done more if the pilots knew the Coast Guard was
not coming. (Tr. at 350)
20
26. I find that the decision to suspend the search and the
concomitant suspension of the search at 0648 was an act or omission but
for which Plaintiffs' decedents' injuries and deaths would not have
occurred.
G. The Discovery of Daniel Cornett and Bobby Lee Hurd
27. James Daniel Cornett (hereinafter Daniel) and Bobby Lee Hurd, Jr.
(hereinafter Bobby Lee) were alive at the time of allision. They died
of drowning and hypothermia, but they could have been saved until at
least 1000 hours (10:00 a.m.).
21 (Deposition of Steinman at 48, 53; Deposition of Raney at 7, 12-13; Tr. at 282)
28. At approximately 11:00 a.m. on December 29, 1997, Daniel Cornett
and Bobby Lee Hurd were found 100 yards apart and floating in the water
just off the beach at Station 12, at Sullivan's Island, South Carolina.
(Plaintiffs' Exhibit 8, Att. 11) The horseshoe life ring with
Morning Dew written on it was found about five feet away from one of the boys. (Tr. at 211)
29. Bobby Lee was probably alive at this time and died only moments
before the paramedics arrived at approximately 11:29 a.m. (Deposition of
Dr. Raney at 7) At the scene, paramedics intubated Bobby Lee and
confirmed placement of the tube with a CO2 detection device and Bobby
Lee was producing CO2. (Deposition of Raney at 7, 9)
22
A person does not have CO2 in his lungs unless there is active
circulation and cells are actually producing CO2. In other words, unless
there is life.
[134 F.Supp.2d 762]
(Deposition of Raney at 8) Bobby Lee Hurd died as a result of asphyxia due to drowning. (Plaintiffs' Exhibit 12)
30. Similarly, while there were no CO2 readings on Daniel, his EKG
readings showed a classic hypothermic reading and indicated that
Daniel's life could have been saved as well at 10:00 a.m. (Deposition of
Raney at 12) Daniel also died as a result of asphyxia due to drowning.
(Plaintiffs' Exhibit 12)
31. Daniel and Bobby Lee must have attempted to swim to nearby
Sullivan's Island together, based on the fact that they were 100 yards
apart when they were found.
H. The Coast Guard Finds Michael Paul Cornett
32. Michael Paul Cornett (hereinafter Paul) was alive when the S/V
Morning Dew hit the north jetty.
33. The Coast Guard located Paul in full rigor mortis one to two
miles out at sea on December 29, 1997, at 1257 hours (12:57 p.m.). Paul
was wearing an improperly secured life jacket, a pull-over shirt, and
boxer shorts when his body was recovered. (Defendant's Exhibit 30 at 46;
Plaintiffs' Exhibit 3 at 9)
34. Dr. Sandra Conradi, a forensic pathologist and former Chief
Medical Examiner for Charleston County, opined that Paul would have
survived in the water three to seven hours after entering the water.
(Deposition of Conradi at 5, 13) Paul probably survived longer than
Daniel and Bobby Lee. (Deposition of Conradi at 15, 35-36)
23
Dr. Kim Collins, who performed the autopsy on Paul, confirmed that
there was no physical difference, in comparison to Daniel and Bobby
Hurd, Jr. that would have caused Paul to die earlier. (Deposition of
Collins at 27-28) Dr. Russell A. Harley, a Professor of Pathology and
Laboratory Medicine at the Medical University of South Carolina
testified that Paul probably died at about the same time as Daniel and
Bobby Lee. (Tr. at 274, 282) Paul also died as result of asphyxia due to
drowning. Hypothermia was a contributing factor to his death.
(Plaintiffs' Exhibit 12)
I. The Coast Guard Could Not Have Saved Michael Wayne Cornett
35. Michael Wayne Cornett's body was found on January 23, 1998,
twenty-six days after the accident. (Plaintiffs' Exhibit 3 at 9) The
Coast Guard could not have saved Michael Wayne Cornett's life,
considering that he was most likely thrown overboard and drowned when
the S/V
Morning Dew hit the north jetty.
J. The Coast Guard Could Have Saved Bobby Lee Hurd and Daniel and Paul Cornett
36. The time of death for each boy was between 1000-1100 (10:00 — 11:00 a.m.) on December 29, 1997.
37. The initial call to the Coast Guard was made at 0627 (6:27 a.m.)
and the pilot boat terminated its search at 0648 (6:48 a.m.). The Coast
Guard would have located Daniel, Paul, and Bobby Lee within one to two
hours after deployment of Coast Guard search boats and helicopters.
(Deposition of Dein at 94-96, 151-154, 156-157) A request for a
helicopter was made
[134 F.Supp.2d 763]
at 1128 (11:28 a.m.) and the helicopter discovered the mast of the sunken S/V
Morning Dew
at 1151 (11:51 a.m.). At 1157 (11:57 a.m.) a Coast Guard boat was also
underway with an estimated twenty minute transit time. At 1257 (12:57
p.m.) the helicopter discovered Paul's body, and the Coast Guard boat
made a recovery at 1303 (1:03 p.m.), within two hours of the 1115 (11:15
a.m.) report. (Plaintiffs' Exhibit 3 at 8-9) As noted above, buoy 22 is
less than 1250 yards from where Daniel and Bobby Lee's bodies were
found. According to CDR Lee's SAR Case Study of the S/V
Morning Dew accident, the S/V
Morning Dew
sank at a point which is less than 3000 yards from where Daniel and
Bobby Lee were found and approximately 2400 yards from where Paul was
found. Thus, recovery of the children on the S/V
Morning Dew
would have easily occurred within two hours of the 0648 call (by 0848
hours [8:48 a.m.]) had a proper deployment been made and had the Coast
Guard not terminated the search prior to daylight. Since all three boys
were alive until between 1000 and 1100, they all would have been saved.
38. Admiral Peschel testified that the S/V
Morning Dew was
afloat on the north side of the jetty. (Deposition of Peschel, at 98)
High tide was at 0731 (7:31 a.m.) and allowed the boat to float across
the jetty to the south side. The boat sank at approximately 0900 (9:00
a.m.). (Deposition of Peschel at 99) I find that since the boys could
have stayed with the boat until 0900 (9:00 a.m.), they would have been
found by the Coast Guard before they ever were forced into the water had
the search not been terminated at 0648.
K. The Boys Were Not Negligent
39. The boys did not exacerbate their condition or hinder their
rescue. On the contrary, the evidence compels the finding that the boys
stayed with the
S/V Morning Dew as long as possible. Furthermore,
they used a life jacket and life ring and apparently all three of them
attempted to reach the shoreline after being forced into the water.
Their actions relative to their own rescue were reasonable. Each boy
exercised that degree of care which a reasonably prudent person would
have exercised under the same circumstances.
L. Damages for the Loss of Bobby Lee Hurd, Jr.
40. Bobby Lee Hurd, Jr., born April 5, 1983, was fourteen years of
age at the time of his death. He was the only son of Deirdre Hurd, born
May 29, 1964, and Bobby Hurd, Sr., born November 11, 1963.
24
41. The testimony demonstrates that Bobby Lee was a bright and
affectionate child, who spent considerable time with his family. He had
the ability to and did enrich the lives of both of his parents. Deirdre
and Bobby, Sr. were devoted to their only son and very involved with his
life. As the result of Bobby Lee's death, both parents, once happy,
outgoing people have led sad and isolated lives. At trial, Bobby, Sr.
testified that he and his wife rarely get out of the house anymore.
25
The loss of Bobby Lee has made it difficult for Mr. and Ms. Hurd to be
around people and it is extremely difficult for them to see happy
people. They have both become withdrawn. Bobby Lee was the center of
both parents' lives. Ms. Hurd testified that Bobby Lee was the most
loving child in the family. (Tr. at 362) The parents
[134 F.Supp.2d 764]
have a new baby daughter who they consider a blessing in their lives,
but the birth of the Hurds' daughter has not filled the void left by the
death of their only son and namesake, Bobby Lee. (Tr. at 361)
42. Bobby Lee was in good health and had a normal life expectancy of
56.93 years pursuant to the South Carolina life expectancy tables.
43. As a result of the pre-daybreak suspension of the search and
rescue by the Coast Guard, Bobby Lee Hurd, Jr. was forced to be and was
adrift in the cold waters of the Atlantic Ocean from the time the boat
sank, until his death, which occurred between 1000 hours and 1100 hours.
Bobby Lee sustained personal injuries from being stranded on the boat
as it was pushed across the jetty by the wind and tide and eventually
sank on the inner jetty, and the terror and helplessness he experienced
as he was eventually forced into the sea. Moreover, he endured intense
emotional distress in being able to see houses and people on nearby
Sullivan's Island, see the pilot boat's search light near buoy 22, and
see boats going in and out of the Charleston Harbor, while unable to
attract attention to himself. During this time his condition became
increasingly worse, he endured severe physical and emotional pain and
suffering as he was faced with his own impending premature death.
44. At the time of trial, Deirdre Hurd's life expectancy was 42.05
years and Bobby Hurd, Sr.'s life expectancy was 36.78 years pursuant to
the South Carolina life expectancy tables.
M. Damages for the Loss of James Daniel and Michael Paul Cornett
45. James Daniel Cornett, born in May of 1984, was thirteen years of
age at the time of his death and Michael Paul Cornett, born in April of
1981, was sixteen years of age at the time of his death. They were the
only children of Libby Cornett, born March 1, 1951.
46. Daniel had a normal life expectancy of 57.86 years pursuant to
the South Carolina life expectancy tables. Paul had a normal life
expectancy of 55.09 years pursuant to the South Carolina life expectancy
tables.
47. The testimony demonstrates that Daniel and Paul Cornett were
intelligent and loving children, who enriched the life of Libby Cornett.
Libby Cornett spent a tremendous amount of time with them, having chose
to home-school both children. (Tr. at 54)
48. The loss of one child is a significant loss, but there is an
additional loss when a mother loses both of her children at the same
time. The medical testimony reveals that Libby Cornett has suffered
severe depression and will, for the rest of her life, continue to suffer
depression as a result of the loss of her children.
49. Ms. Cornett's emotional condition was exacerbated by the
egregious conduct of Commander Manson Brown when he visited her on the
pretense of identifying some items from the
S/V Morning Dew. (Tr.
at 72) After requesting that Ms. Hurd also be present for this meeting,
on March 17, 1998, Commander Brown flew to Mountain City, Tennessee,
the residence of the Hurd family. (Tr. at 72) When Commander Brown
arrived at the Hurd residence, he requested that the children present
leave the room, and then pulled out a tape player, requesting that Ms.
Cornett identify the voice on the tape that he was going to play. (Tr.
at 73) Immediately Ms. Cornett recognized the voice on the tape as her
youngest son, Daniel. (Tr. at 73) Daniel was screaming "Mayd ... Mayday,
U.S. Coast Guard, come in." (Tr. at 73) Commander Brown informed Ms.
Cornett that the call was made around 2:30 a.m. (Tr. at 73) At that
moment, Ms. Cornett testified that she realized the length of
[134 F.Supp.2d 765]
time her family had been in the water thinking that someone was going
to rescue them. (Tr. at 74) Ms. Cornett testified that she "[k]new
basically where they were, and I knew that they could see the lighthouse
there on Sullivan's Island, and I knew they could see the lights of
Charleston, and I know that they saw how close they were, and I know
that they had to have felt they were going to be rescued. It has
tormented me, knowing they were out there all those hours. What had they
been thinking? Were they afraid? Did they know they were going to die?
Not knowing what happened, it's been — it's been torment for us all
every passing day." (Tr. at 74)
50. Libby Cornett has been required to seek and obtain medical
treatment from psychologists and this treatment is expected to continue
for the rest of her life. The cost of her medication is expected to be
between $120-$220 per month. Her physician has testified that she will
probably be required to take this medicine for the rest of her life.
(Second Deposition of Dr. Quinn at 16-17)
51. Ms. Cornett incurred funeral expenses for the burial of Daniel Cornett in the amount of $5,604.00.
52. Paul Cornett's funeral expenses totaled $5,605.52.
53. Additionally, Libby Cornett incurred related expenses for grave
markers and grave sites for her two children. The cost for grave markers
for Paul and Daniel Cornett totaled $1393.20. The cost for their grave
sites totaled $1200.00. (Plaintiff's Exhibit 11)
26
54. As a result of the pre-daybreak suspension of the search and
rescue by the Coast Guard, Daniel and Paul Cornett sustained injuries in
that they were forced to be and were adrift in the cold waters of the
Atlantic Ocean from the time the boat sank until their deaths, which
occurred between 1000 hours and 1100 hours. The boys sustained personal
injuries from being stranded on the boat as it was propelled across the
jetty by the wind and tide, where it eventually sank on the inner jetty,
and the terror and helplessness they experienced as they were
eventually forced into the sea. Moreover, they suffered intense
emotional distress in being able to see houses and people on nearby
Sullivan's Island, see the pilot boat's search light near buoy 22, and
see boats going in and out of the Charleston Harbor, while unable to
attract attention to themselves. As their conditions became increasingly
worse, they endured severe physical and emotional pain and suffering as
they were faced with their own impending premature deaths.
55. According to the South Carolina life expectancy tables, Libby
Cornett, age 49 at the time of trial, has a life expectancy of 30.39
years.
56. In making the foregoing findings of fact, the Court has taken
into consideration all of the evidence presented. The Court, however,
finds the credible evidence, considering the appearance and demeanor of
the witnesses and the testimony in general, supports all of the above by
a preponderance of the evidence.
V. CONCLUSIONS OF LAW
A. JURISDICTION
Plaintiffs claim that this case falls within the purview of the Federal Tort Claims
[134 F.Supp.2d 766]
Act ("FTCA"), 28 U.S.C.A. § 1346(b), § 2671 et seq., or in the
alternative, liability attaches under 28 U.S.C.A. § 1333, and the Suits
in Admiralty Act, 46 U.S.C. §§ 741-752, and Public Vessels Act, 46
U.S.C. §§ 781-790. As discussed
infra, the FTCA does not apply to this case and jurisdiction is grounded in admiralty and general maritime law.
1. Federal District Courts Have Exclusive Jurisdiction Over Admiralty and Maritime Cases
This court has subject matter jurisdiction pursuant to Article III, §
2, clause 1 of the United States Constitution and its statutory
corollary, 28 U.S.C. § 1333(1). These provisions grant federal district
courts exclusive jurisdiction over cases with admiralty or maritime
causes of action.
A case falls within the admiralty jurisdiction of a federal court when it satisfies a two-prong test.
See Sisson v. Ruby, 497 U.S. 358, 367, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990);
Wright v. United States, 883 F.Supp. 60, 62 (D.S.C.1994);
In re Bird, 794 F.Supp. 575,
577 (D.S.C.1992). The first part of the analysis requires the court to
determine if the incident which forms the basis of the suit satisfies
the locus requirement, meaning the incident must have occurred on
navigable waters.
See Wright, 883 F.Supp. at 62. The court then
must determine if the case satisfies the nexus requirement. A case
satisfies the nexus requirement when the incident has a substantial
relationship to traditional maritime activity and has the potential to
disrupt commercial maritime activity.
See id. (stating that the
relevant activity should be judged by the general conduct from which the
incident arose, not by the particular circumstances of the incident).
There is no dispute in this case that the incident occurred on navigable waters. The S/V
Morning Dew
hit a jetty and sank in the Atlantic Ocean. As to the relationship to
traditional maritime activity, the operation of a sailboat can only be
characterized as a traditional maritime activity.
See, e.g., Wright,
883 F.Supp. at 63 (finding that the operation of a pleasure boat on
navigable waters constituted a traditional maritime activity). Moreover,
the presence of a sinking sailboat and its passengers in the water
"clearly poses a hazard to navigation."
See id. Thus, the presence of the sailboat and its passengers in the water, clearly has the potential to impact maritime commerce.
See, e.g., In Re Bird,
794 F.Supp. at 581 (finding that the presence of a passenger in the
water who had been pushed overboard could potentially affect maritime
commerce). Accordingly, this case falls within the admiralty
jurisdiction of this court.
2. The United States Has Waived Its Sovereign Immunity in Admiralty Cases Pursuant to the Suits in Admiralty Act
The United States cannot be sued without a waiver of sovereign immunity.
See Buchanan v. Alexander, 45 U.S. 20,
4 How. 20, 11 L.Ed. 857 (1846). By virtue of the Suits in Admiralty
Act, 46 U.S.C.A. §§ 741-752, and the Public Vessels Act, 46 U.S.C.A. §§
781-790, the United States has consented to be sued in admiralty.
See Basic Boats, Inc. v. United States, 352 F.Supp. 44,
46 (E.D.Va.1972). This waiver of sovereign immunity imposes "liability
upon the government where the principles of admiralty law would impose
liability on private individuals."
Basic Boats, 352 F.Supp. at 48. In other words, the liability of the Coast Guard is the same as that of private parties.
See 46 U.S.C. app. § 743.
[134 F.Supp.2d 767]
a. The Federal Torts Claim Act Is Inapplicable To the Facts of This Case
All admiralty claims to which the United States is a party fall within the ambit of the Suits in Admiralty Act ("SIAA").
See Kelly v. United States, 531 F.2d 1144, 1149 (2d Cir.1976).
27
Maritime tort claims that were previously allowed only on the law side
of the district courts under the Federal Tort Claims Act ("FTCA") are
now brought on the admiralty side of the district courts under the SIAA.
See United States v. United Continental Tuna Corp., 425 U.S. 164,
176 n. 14, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976). In other words, if the
plaintiff's complaint alleges admiralty claims, "then the SIAA provides
their exclusive remedy."
Sawczyk v. The United States Coast Guard, 499 F.Supp. 1034,
1037 (W.D.N.Y.1980). Thus, tort claims which can be brought against the
United States under the SIAA cannot also be brought under the FTCA.
See
28 U.S.C.A. § 2680 (West 2000) (providing that the Act does not apply
to "(d) Any claim for which a remedy is provided by sections 741-752,
781-790 of Title 46, relating to claims or suits in admiralty against
the United States."). Since this case clearly falls within the ambit of
the SIAA, the FTCA is inapplicable to the facts of this case.
b. Discretionary Exception to the Waiver of Sovereign Immunity
The Discretionary Function Exception to the FTCA claim preserves the
United States sovereign immunity against "[a]ny claim ... based upon the
exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of the federal agency or an
employee of the [United States], whether or not the discretion involved
be abused." 28 U.S.C. § 2680(a) (West 2000). The Suits in Admiralty Act
does not contain an analogous exception for the discretionary acts of
government employees. However, a majority of federal circuit courts have
held the discretionary function to the FTCA is implicit in actions
brought under the SIAA.
See, e.g., Wiggins v. United States of America Through the Department of the Navy, 799 F.2d 962, 966 (5th Cir.1986);
Williams v. United States, 747 F.2d 700 (11th Cir.1984);
Gemp v. United States, 684 F.2d 404 (6th Cir.1982);
Estate of Callas v. United States, 682 F.2d 613 (7th Cir.1982);
Canadian Transport Co. v. United States, 663 F.2d 1081 (D.C.Cir. 1980);
Bearce v. United States, 614 F.2d 556 (7th Cir.1980),
cert. denied, 449 U.S. 837, 101 S.Ct. 112, 66 L.Ed.2d 44 (1980);
Chute v. United States, 610 F.2d 7 (1st Cir.1979),
cert. denied,
446 U.S. 936, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980). Thus, even though
the United States waives its sovereign immunity under the SIAA,
government immunity under the Act will remain intact when the facts of
the case reveal that the government was performing a discretionary
function.
See Wiggins, 799 F.2d at 966.
To determine whether a governmental function is discretionary, the
court must engage in a two-tier analysis. The exception applies only (1)
when the relevant conduct involves an element of judgment or choice on
the part of the government actor and (2) when the conduct involves
considerations of public policy, i.e., decisions grounded in social,
economic and political activity.
See United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267,
[134 F.Supp.2d 768]
113 L.Ed.2d 335 (1991);
Minns v. United States, 155 F.3d 445,
451 (4th Cir.1998) (citing 28 U.S.C. § 2680(a)). The first tier of this
analysis "[i]s not satisfied if a federal statute, regulation, or
policy specifically prescribes a course of action for an employee to
follow," because "the employee has no rightful option but to adhere to
the directives."
Appley Bros. v. United States, 7 F.3d 720, 722 (8th Cir.1993) (citing
Berkovitz v. United States, 486 U.S. 531,
536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). The second prong mandates
that a court decide if the "[j]udgment is of the kind that the
discretionary function exception was designed to shield."
Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267 (quoting
Berkovitz v. United States, 486 U.S. at 536, 108 S.Ct. 1954).
c. The Fourth Circuit Has Held that the Discretionary Function Exception Will Apply In Some Circumstances
The Fourth Circuit recognizes a discretionary function exception to
government liability under the SIAA but has held that it applies only in
"some circumstances."
See Faust v. South Carolina State Hwy. Dep't, 721 F.2d 934
938-39 (4th Cir.1983) (retreating from the court's earlier position
that the discretionary function exception does not apply to the SIAA);
see also Tiffany v. United States, 931 F.2d 271, 277 (4th Cir.1991) (reasoning that
Faust narrowed
Lane and recognized the existence of a discretionary function exception to the SIAA in "some" circumstances).
But see Lane v. United States 529 F.2d 175,
179 (4th Cir.1975) (finding that the SIAA contains no discretionary
function). Such circumstances "prevent judicial second-guessing of
legislative and administrative decisions grounded in social, economic,
and political policy through the medium of an action in tort."
Tiffany, 931 F.2d at 276 (quoting
United States v. S.A. Empresa de Viacao Aerea Rio Grandense, (Varig Airlines), 467 U.S. 797,
814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). "Were it otherwise, the
cumulative force of liability `would seriously handicap efficient
government operations.'"
Tiffany, 931 F.2d at 276 (quoting
United States v. Muniz, 374 U.S. 150,
163, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)). For example, when national
security interests are implicated, the discretionary function exception
will apply.
See, e.g., Tiffany, 931 F.2d at 277 ("The decisions
whether and what circumstances to employ military force are
constitutionally reserved for the executive and legislative branches.").
d. The Coast Guard Will Not Be Held Liable For Making the Decision Whether to Act or Not
Under the discretionary function exception, the Coast Guard cannot be
held liable for making the decision whether to act or not. However,
once the Coast Guard exercises discretion and makes a decision to
institute a search and rescue operation, and/or render aid to distressed
persons, it is obligated to use due care.
See, e.g., Huber v. United States, 838 F.2d 398,
400-01 (9th Cir.1988). Thus, assuming that the Fourth Circuit would
imply a discretionary function exception to Defendants' waiver of
sovereign immunity under the SIAA, it would not apply to the facts of
this case because this court has found that the Coast Guard exercised
its discretion by making the policy decision to render aid in the search
and rescue operation, and concomitantly was obligated to exercise
reasonable care in the operation.
28 As stated by the Ninth Circuit:
[134 F.Supp.2d 769]
The government's conduct at issue here was not the result of a policy
decision about allocation of resources, but rather the allegedly
negligent execution of a course of action that was already chosen. At
the time ... the Coast Guard had already made the policy decision to
assist ... This is not a case where the Coast Guard decided to conserve
its resources by not assisting ... instead, the Coast Guard decided to
aid ... and then allegedly did so in a negligent manner .... Once that
choice had been made ..., the Coast Guard became liable for failure, if
any to conform to the applicable standard of care in carrying out or
failing to carry out its decision.
Huber, 838 F.2d at 400-01.
Sass received a distress call and decided to take appropriate action
to aid the people in distress. The closest boat to the scene was the
pilot boat and Sass decided to use this boat as the Coast Guard
response. There is no evidence and no witness who testified to the
effect that Sass decided not to render aid when he was notified of the
distress call that someone was in the water screaming for help. While
Sass had no affirmative legal duty to do so, Sass did, in fact, decide
to render aid and assistance. Once Sass made the decision to render aid,
his actions were not discretionary because Coast Guard policy
specifically prescribes a course of action for him to follow. Moreover,
once Sass made the decision to render aid, Sass's decisions were not
grounded in social, economic, or political policy. Rather, he merely
implemented, under objective criteria, the clear mandates of the Coast
Guard. Thus, Sass's actions in undertaking a search and rescue mission
in this case do not fall within the scope of the discretionary function
exception to the SIAA.
B. CHOICE-OF-LAW
The substantive law governing a defendant's liability in an admiralty
action is to be adjudicated under general maritime law, while state law
may be used to assess damages.
See Yamaha Motor Corp. v. Calhoun, 516 U.S. 199,
206, 216, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). The Supreme Court
recently held that where non-seaman are killed in territorial waters of
the United States, a party may assert a claim for relief under state law
for survival and wrongful death damages.
See Yamaha Motor Corp.,
516 U.S. at 202, 116 S.Ct. 619 ("[s]tate remedies remain applicable in
such cases"). In other words, state law may supplement the measure of
damages while maritime law provides the substantive law. Accordingly,
state law governs the damages available for the deaths of Plaintiffs'
decedents. At issue in this case is whether Tennessee and Virginia law
or the law of South Carolina applies to the determination of damages in
this case.
Federal Choice-of-Law Rules Dictate that South Carolina Law Governs Plaintiffs' Remedies in this Case
This action sounds in admiralty; therefore, federal choice-of-law
rules determine the law governing Plaintiffs' claims for damages.
See Calhoun v. Yamaha Motor Corp., 216 F.3d 338, 345 (3d Cir.2000),
cert. denied, ___ U.S. ___, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000). Federal
[134 F.Supp.2d 770]
choice-of-law rules require the court to analyze which state has "the
most significant relationship to the incident and the dominant interest
in having its law applied." 216 F.3d at 345.
29
Plaintiffs have asserted claims under the Wrongful Death Act and
Survival Statute, arguing that South Carolina law applies to the
determination of damages in this case. Defendant contends, however, that
this court should apply the law of the states of Virginia and Tennessee
to determine liability because Ms. Cornett lives in Virginia and the
Hurd family lives in Tennessee. As such, Defendant argues that the
States of Virginia and Tennessee have a substantial interest in
obtaining compensation for their citizens.
30
The Supreme Court enumerated federal choice-of-law principles in
Lauritzen v. Larsen. See 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953) (involving choice of law between the law of the United States and that of Denmark). The
Lauritzen
court reasoned that courts should consider the following factors when
making choice of law decisions in the admiralty arena: (1) place of the
wrongful act or the "lex loci delicti commissi" (2) law of the flag; (3)
allegiance or domicile of the injured; (4) allegiance of the defendant
shipowner; (5) place of contract; (6) inaccessibility of a foreign
forum; and (7) the law of the forum.
See id. at 583-91, 73 S.Ct. 921. Since this case is a domestic one, most of the
Lauritzen factors are not applicable; however,
Lauritzen does provide guidance on this issue.
The first and third
Lauritzen factors, (1) place of the
wrongful act and (3) allegiance or domicile of the injured, are at issue
in this case. The first factor weighs heavily in favor of applying the
law of the state of South Carolina to this case. The decedents
intentionally traveled to South Carolina where the injuries and deaths
occurred. Moreover, the Cornetts purchased the S/V
Morning Dew in
South Carolina and the entire tragic voyage took place in South
Carolina. Thus, the place of the accident was not merely fortuitous.
South Carolina clearly has an interest in regulating the activity
that occurs in its territorial waters. The State also has a particularly
strong interest in maintaining the safety of its waterways to preserve
the economic benefit it derives from tourism and other commercial
enterprises. Moreover, the Cornetts previously lived in South Carolina
and still owned a substantial amount of property in South Carolina at
the time of the incident. (Plaintiffs'
[134 F.Supp.2d 771]
Exhibit 20) Furthermore, the Coast Guard entity involved, USCG Group
Charleston, is located in South Carolina. The sole relationship of the
States of Virginia
31 and Tennessee
32
with this litigation is that the boys lived there at the time of their
ill-fated voyage, the personal representatives live there, and the
decedents' estates are being administered there. Thus, the facts of this
case counsel in favor of the application of South Carolina law as to
Plaintiffs' damages.
33
C. GENERAL MARITIME LAW
General Maritime Law governs in an admiralty action and affords
redress for injuries and damages sustained from negligent conduct.
See Sutton v. Earles, 26 F.3d 903 (9th Cir.1994). It also provides for damages when the actions of the defendant have been both reckless or wanton.
See Furka v. Great Lakes Dredge & Dock Co., 755 F.2d 1085,
cert. denied, 474 U.S. 846, 106 S.Ct. 136, 88 L.Ed.2d 112 (1985) (
Furka I). Based on the Findings of Fact
supra, I conclude that Plaintiffs are entitled to compensation for the injuries as set forth herein.
1. Standard of Care
The Coast Guard's mission allows it to "perform any and all acts
necessary to rescue and aid persons and protect and save property." 14
U.S.C. § 88(a)(1). While the Coast Guard is authorized to perform acts
necessary to rescue and aid
[134 F.Supp.2d 772]
people, there is no affirmative duty to rescue or provide assistance to those in distress.
See Daley v. United States, 499 F.Supp. 1005,
1009 (D.Mass.1980). If, however, the Coast Guard undertakes to perform
acts necessary to rescue and aid people in distress, as I have found it
did in this case, the Coast Guard has a duty to exercise reasonable
care.
See generally, United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189, 199 (1st Cir.1967),
cert. denied,
389 U.S. 836, 88 S.Ct. 48, 19 L.Ed.2d 98 (1967). Just as a private
citizen, the Coast Guard acts as Good Samaritan in maritime search and
rescue missions.
See United States v. Devane, 306 F.2d 182 (5th Cir.1962);
United States v. Gavagan, 280 F.2d 319 (5th Cir.1960),
cert. denied, 364 U.S. 933, 81 S.Ct. 379, 5 L.Ed.2d 365 (1961);
United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189 (1st Cir.1967),
cert. denied, 389 U.S. 836, 88 S.Ct. 48, 52, 19 L.Ed.2d 98;
Patentas v. United States, 687 F.2d 707 (3d Cir.1982);
DFDS Seacruises (Bahamas) Ltd. v. United States, 676 F.Supp. 1193 (S.D.Fla.1987). The Coast Guard, however, is not to be held to a higher standard of care than that of a private person.
See Basic Boats, 352 F.Supp. at 48;
Petition of United States, 216 F.Supp. 775, 782 (D.Or.1963).
2. The Good Samaritan Doctrine
The case law that has developed over time provides the standard for a
maritime Good Samaritan. This standard provides that if one undertakes
to perform acts to rescue or aid those in distress, he is subject to
liability for reckless or wanton conduct or, for failure to exercise
reasonable care (negligence) if he worsens the position of the victim.
See Furka v. Great Lakes Dredge & Dock Co., 824 F.2d 330, 332 (4th Cir.1987),
cert. denied, 484 U.S. 1042, 108 S.Ct. 775, 98 L.Ed.2d 861 (1988);
Berg v. Chevron U.S.A., Inc., 759 F.2d 1425, 1430 (9th Cir.1985);
Korpi v. United States, 961 F.Supp. 1335, 1347 (N.D.Cal. 1997),
aff'd,
145 F.3d 1338, 1998 WL 231207 (1998). Reckless and wanton conduct has
been described as gross negligence. Gross negligence is the failure to
use even slight care.
See Martin J. Norris,
The Law of Maritime Personal Injuries § 9.4 (4th ed.1990). "The wanton and reckless standard aims to encourage the impulse to assist."
Furka,
824 F.2d at 332. In other words, "the law will not deter rescuers by
charging them `with the consequences of errors of judgment resulting
from the excitement and confusion of the moment.'"
Id. (quoting
Corbin v. City of Philadelphia,
195 Pa. 461, 45 A. 1070, 1074 (1900)). "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."
Korpi, 961 F.Supp. at 1347 (citing
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)). For there to be reckless and wanton conduct, there
must be an ongoing rescue and the reckless conduct must have occurred
during the course of the rescue.
See, e.g., Furka I, 755 F.2d at 1088;
Berg, 759 F.2d at 1427-30 (loss of life in course of towing a distressed vessel);
Korpi, 961 F.Supp. at 1345-47 (yacht was lost in course of Coast Guard rescue);
DFDS Seacruises v. United States, 676 F.Supp. 1193, 1200-01 (S.D.Fla.1987) (damage caused by firefighting efforts of Coast Guard).
In this case, I have found that the Coast Guard undertook a duty when
it made the decision to render aid. (Findings of Fact at ¶ 15) When the
Coast Guard made this decision, it had a report of someone yelling for
help in the water. The Coast Guard decided to use the pilot boat which
was proceeding to the area of buoy 22 as a search asset. The pilot boat
[134 F.Supp.2d 773]
was requested to report back to the Coast Guard and did so, advising of
the negative results of the search. The Coast Guard knew at that time
that whoever was in the water had not been found. Upon receiving the
report, the Coast Guard via Sass, terminated the search. It is clear
now, and should have been clear to Sass at that time, that terminating
the search before daybreak was the exercise of no care at all to whoever
was in the water. Sass's conduct was reckless and wanton and occurred
during the course of the rescue efforts in this case. This conduct
worsened the precarious position of Plaintiffs' decedents, and Sass's
conduct was the proximate cause of the injuries and deaths of
Plaintiffs' decedents. (Findings of Fact at ¶¶ 21-26)
The United States Code provides that "[i]n 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
... the Coast Guard may: (a)(1) perform any and all acts necessary to
rescue and aid persons and protect and save property." 14 U.S.C. § 88.
This section imposes no affirmative duty on the Coast Guard to act. It
does not however, limit the form in which aid may be rendered. The
United States Coast Guard Addendum to the National Search and Rescue
Manual (Plaintiffs' Exhibit 13) establishes policy for Coast Guard use
in SAR operations and Section 3.B.5.a. sets forth that the Coast Guard
may render aid by using resources belonging to private entities. Based
upon Section 3.B.5.a. and 14 U.S.C. § 88, the Coast Guard is permitted
to render aid by initiating an immediate Coast Guard response to persons
in distress using resources belonging to private entities. In sum,
the decision to undertake or abandon a rescue is discretionary with
the Coast Guard .... [B]ut having undertaken the rescue and engendered
reliance thereon, the obligation [arises] to use reasonable care in
carrying out the rescue. And negligence in the operation would create
liability if it was the proximate cause of loss or damage where the
position of one was worsened in reliance on the undertaking by the Coast
Guard.
Devane, 306 F.2d at 186. In other words, while the Coast Guard
has no affirmative duty to rescue, the Coast Guard must act with due
care once it undertakes a search and rescue mission.
See Lacey v. United States, 98 F.Supp. 219,
220 (D.Mass.1951). "The rationale is that other would-be rescuers will
rest on their oars in the expectation that effective aid is being
rendered."
Id. Based on my Findings of Fact, I conclude that the
Coast Guard did make a decision to and did perform acts necessary to
rescue and render aid to Plaintiffs' decedents and initiated a Coast
Guard response to do so, using resources owned by a private party.
(Findings of Fact at ¶ 15)
I also conclude that whether or not there has been an attempt to rescue or render aid is a question of fact.
See Furka v. Great Lakes Dredge & Dock Co., 755 F.2d 1085, 1088 (4th Cir.),
cert. denied,
474 U.S. 846, 106 S.Ct. 136, 88 L.Ed.2d 112 (1985). This court has
found as a fact that the Coast Guard did make a decision to render aid
and did perform acts necessary to rescue Plaintiffs' decedents, using
resources belonging to the Pilots' Association and engendering reliance
therein. After the pilot boat reported that it did not find anyone, Sass
suspended the search and took no further action. The search should not
have been allowed to terminate before first light. Thus, the Coast Guard
breached the standard of care applicable to this case as the Coast
Guard's actions were reckless and wanton. The Coast Guard's actions also
worsened the position of the children by inducing the Pilots'
Association to cease their efforts in the belief that the
[134 F.Supp.2d 774]
Coast Guard had the situation in hand. I conclude that the Coast Guard's failure with regard to the S/V
Morning Dew
was a proximate cause of Plaintiffs' decedents' deaths and the damages
sustained by Plaintiffs' decedents were a result of the Coast Guard's
breach.
3. COMPARATIVE NEGLIGENCE
Since jurisdiction is premised upon admiralty, federal common law
governs. As such, the doctrine of comparative negligence applies.
See, e.g., Mullenix v. United States, 984 F.2d 101, 104 (4th Cir. 1993) (citing
United States v. Reliable Transfer Co., 421 U.S. 397,
407, 411, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975)). Therefore, in the
context of an admiralty case, damages should "[b]e allocated among the
parties proportionately to the comparative degree of their fault."
Reliable Transfer Co., Inc.,
421 U.S. at 411, 95 S.Ct. 1708. However, a plaintiff's negligence,
which may have precipitated the rescue effort, is not relevant to the
comparative fault calculation.
See Korpi, 961 F.Supp. at 1347.
Rather, the relative negligence of the person to be rescued is that
which relates to the rescue and either worsens the victim's condition or
hinders the rescue.
See Berg, 759 F.2d at 1431;
Korpi,
961 F.Supp. at 1347. When analyzing a plaintiff's conduct in terms of
the rescue effort, the standard to be used is that of a reasonably
prudent person under similar circumstances.
See Korpi, 961 F.Supp. at 1347 (citing
Prosser & 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)).
The children on board the S/V
Morning Dew did not exacerbate
their condition or hinder their rescue. On the contrary, the evidence
reflects that the boys stayed with the S/V
Morning Dew as long as
possible. Furthermore, they used a life jacket and life ring and
apparently all three of them attempted to reach the nearby shore after
the
S/V Morning Dew sank. Their actions relative to their own
rescue were reasonable. Each child exercised that degree of care which a
reasonably prudent person would have exercised under the same or
similar circumstances.
D. SOUTH CAROLINA LAW ON WRONGFUL DEATH & SURVIVAL ACTIONS
1. WRONGFUL DEATH
The South Carolina Wrongful Death Act provides in pertinent part that
"whenever the death of a person shall be caused by the wrongful act,
neglect or default of another and the act, neglect or default is such as
would, if death had not ensued, have entitled the party injured to
maintain an action and recover damages in respect thereof, the person
who would have been liable, if death had not ensued, shall be liable to
an action for damages." S.C.Code Ann. § 15-51-10 (Law. Co-op.2000). "In a
wrongful death case, the issue of damages is not directed toward the
value of human life that was lost, but rather the damages sustained by
the beneficiaries as a result of the death."
Welch v. Epstein, 342 S.C. 279,
536 S.E.2d 408, 421 (S.C.App.2000) (citing
Zorn v. Crawford, 252 S.C. 127,
165 S.E.2d 640 (S.C.1969);
Self v. Goodrich, 300 S.C. 349,
387 S.E.2d 713 (S.C.App. 1989)).
South Carolina law provides that parents are entitled to a presumption of nonpecuniary damages.
See Mock v. Atlantic Coast Line R.R. Co., 227 S.C. 245,
87 S.E.2d 830, 836 (1955);
Self v. Goodrich, 300 S.C. 349,
387 S.E.2d 713, 714-15 (S.C.App.1989);
see also F.P. Hubbard & R.L. Felix,
The South Carolina Law of Torts
615 (2d ed. 1997) ("It may often be assumed that grief and sorrow will
be experienced at the loss of a loved one; however, the strength of such
presumption
[134 F.Supp.2d 775]
is a function of the closeness of the relationship ....") Damages for
wrongful death under South Carolina law include: "(1) pecuniary loss,
(2) mental shock and suffering, (3) wounded feelings, (4) grief and
sorrow, (5) loss of companionship and (6) deprivation of the use and
comfort of the intestate's society, the loss of his experience,
knowledge and judgment in managing the affairs of himself and his
beneficiaries." F.P. Hubbard & R.L. Felix,
The South Carolina Law of Torts 610 (2d ed.1997) (citing
Mishoe v. Atlantic Coast Line R.R.,
186 S.C. 402, 197 S.E. 97 (1938)). By statute, South Carolina law also
provides that plaintiffs may recover funeral expenses in a wrongful
death action or under a survival right of action.
See S.C.Code
Ann. § 15-5-100 (Law. Coop. 2000) (providing that parties may recover
funeral expenses in either the wrongful death action or the survival
action, but not both);
see also Adams v. Hunter, 343 F.Supp. 1284 (D.S.C.1972);
Gomillion v. Forsythe, 218 S.C. 211,
62 S.E.2d 297, 303 (1950) ("[W]here such expenses are paid by the beneficiary they are a proper element of damages.").
2. SURVIVAL ACTIONS
Under the Survival Statute, causes of action relating to "any and all
injuries to the person or to the personal property" shall survive to
the personal representative of the decedent. S.C.Code Ann. § 15-5-90
(Law.Co-op.2000). "The general rule [is] that any cause of action which
could have been brought by the deceased in his lifetime survives to his
representative under the Survival Act."
Layne v. Int'l Bd. of Elec. Workers, 271 S.C. 346,
247 S.E.2d 346, 349 (1978) (citing
Gowan v. Thomas, 237 S.C. 223,
116 S.E.2d 761
(1960)). A court may award damages in a survival action for conscious
pain, suffering and, mental distress of the deceased and also for the
deceased's medical, surgical, and hospital bills.
See Welch v. Epstein, 342 S.C. 279,
536 S.E.2d 408, 421 (S.C.App.2000).
VI. DAMAGES
The record reflects that the relationships these children shared with
their families were exceptional. Daniel and Paul Cornett and Bobby Lee
Hurd enjoyed spending time with their families and considered their
parents and siblings to be their best friends. The testimony at trial
revealed that being a family and sharing time together were the most
important aspects of both the Hurds' and the Cornetts' lives. As a
result of the closeness shared between these parents and their children,
the impact of this tragedy is even more severe. Testimony at trial
revealed that these parents have been overcome with grief. The pain they
endure on a daily basis is overwhelming, and the damages they sustained
are immeasurable. As stated by the South Carolina Court of Appeals in
Scott v. Porter,
"[t]here is no mathematical formula which can easily establish the
value of this kind of loss, and it is not this court's place to do so."
340 S.C. 158,
530 S.E.2d 389,
395 (S.C.App.2000). However, in light of wrongful death verdicts in
South Carolina involving minor children, the court finds that the
following damages are appropriate in this case.
34
[134 F.Supp.2d 776]
A. Wrongful Death Damages
(1) Pecuniary Loss
Ms. Cornett is required to take anti-depressant medication at a cost
of approximately One Hundred Twenty Dollars and No/100ths ($120.00)
Dollars per month for life (30.39 years). During the course of her
lifetime, she is expected to spend at least $43,761.69 on this
medication.
35 Furthermore, she has incurred funeral expenses totaling $13,802.20 for Paul and Daniel.
36
(2) Nonpecuniary Loss
With respect to the intangible damages, there is ample evidence that
the loss of her family has completely devastated Ms. Cornett. Her mental
shock and suffering is severe due to her knowledge of the intense
physical and mental anguish her children suffered in the hours before
their deaths and by Commander Brown's duplicitous conduct at the Hurd's
home when he played the 0218 (2:18 a.m.) tape of Daniel's Mayday call.
Because of CDR Brown's actions, the last words that Ms. Cornett heard
her son Daniel say were not, "I love you, Mom," as he left on his
sailing adventure with his brother and father on December 27, 1997, but
"Mayd ... Mayday, U.S. Coast Guard, come in." It is patently obvious
from witnessing Ms. Cornett at the trial of this case that these words
will haunt her all the days of her life.
As evidence by Ms. Cornett's testimony at trial, the overwhelming
magnitude of Ms. Cornett's suffering, sorrow, pain, emptiness and grief
is unbearable. Ms. Cornett's loss is amplified by the fact that she
home-schooled her children and spent more time with her children than
the average parent. The untimely deaths of her beloved children have
essentially left her lifeless. Libby Cornett's loss for each decedent is
Six Million ($6,000,000.00) Dollars.
With respect to the Hurds' loss of intangibles, the record reflects
these parents have suffered the most tragic of all losses, the loss of a
child. Not only did Bobby and Deirdre Hurd lose their only son and
namesake, but they must live with the knowledge that their son
undoubtedly suffered severe emotional and physical pain in the hours
before his death. Both parents must endure their own separate loss, and a
combined loss as well. The loss of Bobby Lee, Jr. individually within
the framework of the distinctive facts presented is Six Million
($6,000,000.00) Dollars, to be divided Three Million ($3,000,000.00)
Dollars to each parent.
B. Survival Action Damages
Bobby Lee Hurd and Michael Paul and James Daniel Cornett undeniably
were terrified by being stranded on a sailboat as it gradually and
eventually sank on the inner jetty. This terror had to be exacerbated by
their eventual realization that they were alone on the S/V
Morning Dew,
and they each had to have comprehended that their beloved father and
uncle had fallen overboard and drowned sometime during the night. Their
physical struggles to save themselves were also remarkable. As noted
above, Daniel and Bobby Lee were found on the beach of nearby Sullivan's
Island. As the boys were forced into the ocean, they not only had to
overcome the wind, waves, and
[134 F.Supp.2d 777]
frigid ocean water, but were swimming against an outgoing tide.
All three children endured severe emotional distress in seeing the
lights of passing boats, their proximity to Sullivan's Island, and the
fading hope of a rescue, all the while being slowly forced into the cold
waters of the Atlantic Ocean with little clothing and life saving
equipment. Their physical and mental torture was severe. Accordingly,
this court finds that the sum of Three Hundred Thousand ($300,000.00)
Dollars is appropriate in light of the severity of their conscious pain
and suffering prior to their deaths.
C. PREJUDGMENT INTEREST
Pursuant to 46 U.S.C. app. § 743, Plaintiffs may recover costs and
interest at the rate of four percent per annum from the date of filing
of this action until the judgment is satisfied. The Hurds and Ms.
Cornett are entitled to interest at the rate of four percent per year
from January 27, 1999, the date these actions were filed.
VII. CONCLUSION
This tragedy was avoidable. It was not an angry sea or cruel weather that impeded the Coast Guard's ability to rescue the S/V
Morning Dew's
passengers. It was human error, the impetuous termination of a search
and rescue mission approximately thirty minutes before sunrise.
This court's decision is not premised on hindsight, rather it based
on the circumstances facing the Coast Guard at 6:27 a.m. on December 29,
1997. The Charleston Group's communications with the Pilots'
Association initiated a search and rescue mission that the Coast Guard
clearly failed to execute properly. The Pilots' Association reasonably
expected the Coast Guard to send a boat and helicopter to look for the
persons whose screams had engendered the pilot boat's search near and
around buoy 22 in the Charleston Harbor. As a result of the Coast
Guard's reckless suspension of the search for the passengers of the S/V
Morning Dew, these children suffered horrific deaths in the cold waters of the Atlantic Ocean.
VIII. JUDGMENTS
A. CIVIL ACTION NO. 2:99-0240-18
IT IS ORDERED that judgment be and the same is hereby
entered for DEIRDRE LYNN HURD AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF BOBBY LEE HURD, JR., DECEASED, against Defendant, under the Survival
Action in this matter, in the sum of Three Hundred Thousand and
No/100ths ($300,000.00) Dollars.
IT IS FURTHER ORDERED, that judgment be and the same is
hereby entered for DEIRDRE LYNN HURD, AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF BOBBY LEE HURD, JR., DECEASED, against Defendant for Wrongful
Death Act, in the sum of Six Million and No/100ths ($6,000,000.00)
Dollars.
IT IS ALSO ORDERED that these judgments shall bear
interest at the rate of four percent per annum from the January 27, 1999
filing date until said judgments are satisfied and thereafter at the
rate provided by law.
B. CIVIL ACTION NOS. 2:99-0241-18 & 2:99-0243-18
IT IS ORDERED, that judgment be and the same is hereby
entered for MARY E. MOORE CORNETT, AS PERSONAL REPRESENTATIVE OR THE
ESTATE OF MICHAEL PAUL CORNETT, DECEASED, against Defendant, under the
Survival Action in this matter, in the sum of Three Hundred Thousand and
No/100ths ($300,000.00) Dollars.
[134 F.Supp.2d 778]
IT IS FURTHER ORDERED,
that judgment be and the same is hereby entered for MARY E. MOORE
CORNETT, AS PERSONAL REPRESENTATIVE OR THE ESTATE OF MICHAEL PAUL
CORNETT, DECEASED, against Defendant for Wrongful Death, in the sum of
Six Million and No/100ths ($6,000,000.00) Dollars.
IT IS ORDERED, that judgment be and the same is hereby
entered for MARY E. MOORE CORNETT, AS PERSONAL REPRESENTATIVE OR THE
ESTATE OF JAMES DANIEL CORNETT, DECEASED, against Defendant, under
Survival Action in this matter, in the amount of Three Hundred Thousand
and No/100ths ($300,000.00) Dollars;
IT IS FURTHER ORDERED, that judgment be entered for MARY
E. MOORE CORNETT, AS PERSONAL REPRESENTATIVE OR THE ESTATE OF JAMES
DANIEL CORNETT, DECEASED, against Defendant for Wrongful Death, in the
sum of Six Million and No/100ths ($6,000,000.00) Dollars.
IT IS FURTHER ORDERED, that judgment be entered for MARY
E. MOORE CORNETT, against Defendant in the amount of Fifty-Seven
Thousand, Five Hundred Sixty-Three and 89/100ths ($57,563.89) Dollars
for her pecuniary Loss.
IT IS ALSO ORDERED that these judgments, exclusive of those awarded for future loss
37
shall bear interest at the rate of four percent per annum from the
January 27, 1999 filing date until the date of this order and thereafter
at the rate provided by law.
C. CIVIL ACTION NO. 2:99-0242-18
IT IS ORDERED, that judgment be entered for the UNITED
STATES OF AMERICA in Mary E. Moore Cornett, as Personal Representative
of the Estate of Michael Wayne Cornett, deceased v. United States of
America.
AND IT IS SO ORDERED.
