Gough et al v. U.S. Navy et al, No. 3:2008cv01360 - Document 35 (S.D. Cal. 2009)
Court Description: ORDER Granting Motions (Doc. no. 15 16 ) to Dismiss. The Court grants Plaintiff leave to file a First Amended Complaint within 20 days of the filing of this order. If Plaintiff fails to file an amended complaint within the prescribed time, the Court shall order the Clerk to close this case. Signed by Judge Barry Ted Moskowitz on 8/25/09. (All non-registered users served via U.S. Mail Service).(vet) (kaj).
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Gough et al v. U.S. Navy et al Doc. 35 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HAROLD H.W. GOUGH, in personam, TYEE, U.S. Documented Vessel, in rem, CASE NO. 08CV1360 BTM(BLM) ORDER GRANTING MOTIONS TO DISMISS 12 Plaintiff, 13 14 15 v. U.S. NAVY, et al., Defendants. 16 17 Defendant Western Maritime, Inc. dba Vessel Assist San Diego (“Vessel Assist”) and 18 Defendants San Diego Unified Port District (“Port District”) and San Diego Harbor Police 19 (“Harbor Police”) have filed motions to dismiss Plaintiff’s Complaint. For the reasons 20 discussed below, Defendants’ motions to dismiss are GRANTED. 21 22 I. FACTS 23 This case arises out of damage that was done to Plaintiff’s sailing vessel, the “Tyee,” 24 when it was beached during inclement weather. Plaintiff claims that the beaching could have 25 been prevented if Defendants rendered proper assistance. 26 According to Plaintiff’s Verified Complaint, on May 23, 2008, Plaintiff and a passenger 27 were on board the “Tyee,” a 48' ketch-rigged double-ender, which was anchored off the 28 beach or shoal located just south of the entrance to San Diego Bay (a U.S. Navy Security 1 08cv1360 BTM(BLM) Dockets.Justia.com 1 Zone designated as “Western Beach”). (Compl. ¶ 20.) Plaintiff contends that the sole 2 reason the “Tyee” was anchored there rather than in the San Diego Bay’s designated free 3 anchorages was the result of a last minute cancellation of his anchorage permit. (Compl. ¶ 4 21.) Plaintiff contends that any anchorage permit granted by the city of San Diego is 5 conditioned on the understanding that such permit is not revocable. (Id.) 6 Later in the day, the local offshore marine area was in a small craft warning status due 7 to adverse and inclement weather. (Compl. ¶ 26.) Due to the coming of nightfall, Plaintiff 8 attempted to return to the safety of the “La Playa” anchorage. 9 experienced sailor. (Compl. ¶ 28.) However, Plaintiff encountered difficulty in raising the 10 vessel’s main sail because of a fouled halyard. (Compl. ¶ 30.) Because Plaintiff was unable 11 to clear the halyard, Plaintiff utilized the mizzen and jib sails to commence sailing back into 12 the bay. (Id.) (Id.) Plaintiff is an 13 Due to the reduced sails, Plaintiff had great difficulty navigating the “Tyee” and spent 14 approximately three hours attempting to sail around the tip of the jetty. (Compl. ¶ 27.) At this 15 time, Plaintiff was approached by a U.S. Coast Guard vessel. (Id.) The Coast Guard crew 16 asked Plaintiff if he was in trouble. (Id.) Plaintiff responded that he was experiencing great 17 difficulty going upwind past the jetty due to his equipment failure and requested a short tow 18 to clear the jetty tip and sail safely back into the San Diego Bay. (Id.) Plaintiff explained that 19 he was in danger of going ashore if the vessel’s anchor failed to hold. (Compl. ¶ 30.) On 20 the orders of a superior officer, the Coast Guard crew refused to render any assistance to 21 Plaintiff or the vessel. (Compl. ¶ 29.) The Coast Guard crew told Plaintiff that they would 22 remain in the immediate area and that he could call them on VHF Channel 16 if the need 23 arose. (Compl. ¶ 31.) Plaintiff anchored the Tyee. 24 At approximately 10:30 p.m. later that same night, Plaintiff awoke when he felt the 25 bottom of his vessel grazing a hard surface, possibly the beach’s bottom. (Compl. ¶ 32.) 26 Plaintiff called the Coast Guard on Channel 16 and told them he had a developing 27 emergency situation and that it was possible that the “Tyee” was dragging its anchor and was 28 going up on the beach. (Id.) The Coast Guard responded that help was on the way. (Id.) 2 08cv1360 BTM(BLM) 1 Approximately 20 minutes later, a San Diego Harbor Police vessel arrived. (Id.) 2 The San Diego Harbor Police ordered Plaintiff and his passenger to put on life vests 3 and get into the vessel’s dinghy. (Compl. ¶ 33.) According to Plaintiff, he was ordered to 4 turn over command of the vessel to the San Diego Harbor Police. (Id.) Plaintiff complied 5 with the Harbor Police officers’ instructions, assuming that they would take a line off the 6 vessel’s bow and rotate the vessel off the soft grounding into deeper water where it could be 7 reanchored safely. (Compl. ¶ 34.) 8 Plaintiff and his passenger were delivered safely to the docks at Shelter Island. 9 (Compl. ¶ 36.) However, the Harbor Police did not make any efforts to move the vessel to 10 safety. (Compl. ¶ 34.) The Harbor Police did contact civilian private towing services, 11 defendants Sea Tow and Vessel Assist, to inquire whether they would provide private 12 assistance. (Compl. ¶ 37.) These private businesses did not provide any assistance 13 because Plaintiff was unable to verify the availability of a minimum of $5,000 in immediate 14 cash funds to pay for their services. (Id.) 15 A U.S. Navy security boat was at the police dock and initially offered to render 16 assistance by pulling the “Tyee” off the beach. (Compl. ¶ 38.) However, the crew’s 17 supervisor denied permission to render assistance. (Id.) 18 According to Plaintiff, there was a one-hour window of opportunity to safely pull the 19 “Tyee” off the beach before the tide started to go out. (Compl. ¶ 39.) Because the vessel 20 was not extracted during this window, unnecessary and costly damage was done to the 21 vessel when it was ultimately extracted by Sea Tow under contract with the U.S. Coast 22 Guard. (Compl. ¶ 40.) 23 Plaintiff asserts claims against the U.S. Navy, U.S. Coast Guard, the Harbor Police, 24 Sea Tow Vessel Assistance (“Sea Tow”), and Vessel Assist based on their alleged failure to 25 render maritime emergency distress assistance, resulting in the preventable beaching of the 26 “Tyee.”1 Plaintiff also asserts a claim against the Port Authority based on its alleged failure 27 1 28 Although Plaintiff asserts that this action is being brought in rem as well as in personam, the in rem procedure is inapplicable here. An in rem action may be brought against a vessel as a defendant only if the plaintiff possesses a maritime lien against it. See Madruga v. Superior Court, 346 U.S. 556, 560 (1954). 08cv1360 BTM(BLM) 3 1 to properly train the Harbor Police to render maritime emergency distress assistance. 2 3 II. STANDARD 4 Under Fed. R. Civ. P. 8(a)(2), the plaintiff is required only to set forth a “short and plain 5 statement” of the claim showing that plaintiff is entitled to relief and giving the defendant fair 6 notice of what the claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 7 41, 47 (1957). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should 8 be granted only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient 9 facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 10 699 (9th Cir. 1988). When reviewing a motion to dismiss, the allegations of material fact in 11 plaintiff’s complaint are taken as true and construed in the light most favorable to the plaintiff. 12 See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although 13 detailed factual allegations are not required, factual allegations ”must be enough to raise a 14 right to relief above the speculative level.” Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 15 1955, 1965 (2007). 16 relief’ requires more than labels and conclusions, and a formulaic recitation of the elements 17 of a cause of action will not do.” Id. “A plaintiff’s obligation to prove the ‘grounds’ of his ‘entitle[ment] to 18 19 III. DISCUSSION 20 Vessel Assist moves to dismiss Plaintiff’s Complaint on the ground that it had no duty 21 to render assistance to Plaintiff. The Port Authority and Harbor Police similarly contend that 22 they did not owe Plaintiff any duty to tow his vessel into deeper waters. As discussed below, 23 the Court agrees that none of the defendants had a duty to assist Plaintiff either by towing 24 the “Tyee” into the San Diego Bay or, once the “Tyee” had come up on the beach, by towing 25 it into deeper water. 26 27 28 A. Admiralty Jurisdiction It appears that Plaintiff has invoked the admiralty jurisdiction of this Court. The case 4 08cv1360 BTM(BLM) 1 is not a diversity action, and Plaintiff makes reference to violations of admiralty and maritime 2 law. 3 A party seeking to invoke federal maritime jurisdiction over a tort claim must satisfy 4 both a location test and a connection test. Jerome B. Grubart, Inc. v. Great Lakes Dredge 5 & Dock Co., 513 U.S. 527, 534 (1995). Under the location test, the court must determine 6 whether the tort occurred on navigable water. Id. The connection test has two prongs, each 7 of which must be satisfied: (1) “A court, first, must assess the general features of the type 8 of incident involved to determine whether the incident has a potentially disruptive impact on 9 maritime commerce[.]” Id. (internal citation and quotation marks omitted); (2) “Second, a 10 court must determine whether the general character of the activity giving rise to the incident 11 shows a substantial relationship to traditional maritime activity.” Id. (internal quotation marks 12 omitted). 13 Here, the alleged tort occurred on navigable water. Contrary to Vessel Assist’s 14 contention, the fact that the vessel was in shallow water when it struck the beach does not 15 mean that the incident did not occur in “navigable water.” See Turner v. Bentley Indus., LLC, 16 2007 WL 707396 (N.D. Fla. March 5, 2007) (explaining that incident occurred in navigable 17 waters even though the pleasure craft was anchored in shallow water some distance from 18 the navigation channel of the sound). 19 The activity giving rise to the incident in this case was the grounding of a vessel on 20 navigable waters. This activity is substantially related to traditional maritime activity. See 21 Sisson v. Ruby, 497 U.S. 358, 364-65 (1990) (holding that storage and maintenance of a 22 vessel at a marina on navigable waters fell within the substantial relationship requirement). 23 In addition, considering the general features of the incident (i.e., a 48 foot vessel in navigable 24 waters that has been grounded on the beach at night), the incident had a potentially 25 disruptive impact on maritime commerce. The grounded “Tyee” could have posed a danger 26 to other vessels and could have obstructed navigation of the waters nearby. 27 Therefore, the Court finds that it has admiralty jurisdiction over this action. 28 5 08cv1360 BTM(BLM) 1 B. Negligence 2 Plaintiff’s claims against Defendants are negligence claims. Plaintiff claims that 3 defendant U.S. Coast Guard had a statutory and/or moral duty to tow his vessel to the safety 4 of the La Playa anchorage and that the other defendants had a statutory and/or moral duty 5 to tow his vessel into deeper water once his vessel ran aground. The Court finds that 6 Defendants did not owe Plaintiff a duty to render the aforementioned assistance. 7 When jurisdiction is maritime, the general principles of maritime negligence rather than 8 common law negligence apply. Pope and Talbot v. Hawn, 346 U.S. 406 (1953). However, 9 like common law negligence, the elements of a maritime negligence cause of action include: 10 (1) the existence of a duty; (2) breach of said duty; (3) proximate cause; and (4) actual loss 11 or injury to the plaintiff due to the improper conduct. Prince v. Thomas, 25 F. Supp. 2d 1045, 12 1047 (N.D. Cal. 1997). 13 14 15 16 Plaintiff points to 46 U.S.C. § 2304 as a statutory source of Defendants’ duty to provide him assistance. This statute provides: A master or individual in charge of a vessel shall render assistance to any individual found at sea in danger of being lost, so far as the master or individual in charge can do so without serious danger to the master’s or individual’s vessel or individuals on board. 17 (Emphasis added.) However, according to the facts pled in the Complaint, Plaintiff was not 18 in any danger of being lost at sea. Moreover, to the extent Plaintiff and his passenger were 19 in any bodily danger, the Harbor Police made sure that they got to land safely. 20 With respect to the Harbor Police, Plaintiff cites to San Diego Unified Port District 21 Code § 8.25, which states that “the Executive Director or any harbor police officer is hereby 22 authorized to remove and impound any vessel, watercraft or object found in violation of any 23 Federal or State law or provision of this Code in accordance with the procedures set forth 24 in this Section . . . .” Plaintiff misconstrues this regulation, which does not require the harbor 25 police to provide general protection to vessels, but, rather, permits the harbor police to 26 remove or impound vessels found in violation of the law. 27 Plaintiff also generally cites to the “Mariner’s Code of Conduct” (it is unclear whether 28 6 08cv1360 BTM(BLM) 1 this is an unwritten moral code or some sort of publication) and a maritime law treatise, “The 2 Law of the Seaman,” authored by Robert Force and Martin J. Norris. These sources do not 3 establish the existence of a duty on the part of Defendants to render assistance to Plaintiff 4 under the circumstances of this case. 5 Under the principles of general maritime law, a private party has no affirmative duty 6 to rescue a vessel or person in distress. Wright v. United States, 700 F. Supp. 490, 494 7 (N.D. Cal. 1988). This same principle applies to the U.S. Coast Guard. Id. See also Frank 8 v. United States, 250 F.2d 178, 180 (1957) (explaining that although the Coast Guard may 9 render aid to persons and protect property, federal legislation falls short of creating a 10 governmental duty of affirmative action). Similarly, absent statutes or regulations providing 11 otherwise, the Harbor Police and San Diego Port Authority do not owe a duty of affirmative 12 action to a person or vessel in distress. 13 Once a private salvor renders voluntary assistance, however, the salvor may be held 14 liable if an attempted rescue affirmatively injures the person in distress or worsens his 15 position. Frank, 250 F.2d at 180. Where the salvor takes affirmative actions that cause 16 some physical change to the environment or some other material alteration of circumstances, 17 the relevant test is “not whether the risk was increased over what it would have been if the 18 defendant had not been negligent, but rather whether the risk was increased over what it 19 would have been had the defendant not engaged in the undertaking at all.” Thames 20 Shipyard and Repair Co. v. United States, 350 F.3d 247, 261 (1st Cir. 2004) (internal 21 quotation marks omitted). Liability may also be established on a theory of induced justifiable 22 detrimental reliance, such as when the Coast Guard’s actions cause potential rescuers to 23 rest on their oars in reliance on the Coast Guard’s undertaking. Id. 24 In this case, the Coast Guard crew did not render any assistance upon instructions 25 of a superior officer.2 They did not take any affirmative actions that injured Plaintiff or his 26 2 27 28 The U.S. Navy and U.S. Coast Guard have not filed a response to the Complaint. Upon review of the proofs of service filed by Plaintiff, it appears that these defendants were not served in compliance with Fed.R.Civ.P. 4(i), which governs service on the United States and its agencies. Nevertheless, the Court will address Plaintiff’s claims against these 08cv1360 BTM(BLM) 7 1 vessel, nor did they induce detrimental reliance on the part of Plaintiff or other potential 2 rescuers. Therefore, the U.S. Coast Guard cannot be held liable for negligence. See, e.g., 3 Oxman v. United States, 1993 WL 651904 (D. Or. June 21, 1993) (holding that the Coast 4 Guard was not liable for negligence because the ship would have sunk regardless of the 5 Coast Guard’s rescue efforts, and Plaintiff did not forgo other possible sources of 6 assistance); Albinder v. United States, 703 F. Supp. 246 (S.D.N.Y. 1987) (holding that the 7 Coast Guard was not liable because the defective pumps did not increase the risk of harm, 8 and Plaintiff did not allege that the vessel’s crew decided to forgo other avenues of rescue 9 in reliance on the Coast Guard’s efforts). 10 After Plaintiff’s vessel went aground, Plaintiff claims that the Harbor Police ordered 11 him and his passenger off the vessel and took command of the vessel. Even if this is true, 12 Plaintiff does not allege that the Harbor Police took any affirmative action that harmed him. 13 Rather, Plaintiff complains that the Harbor Police did not tow his vessel into deeper water 14 before the tide went out. Plaintiff does not allege, however, that the Harbor Police prevented 15 him from getting someone else to tow his vessel, nor does Plaintiff allege that he chose to 16 forgo other means of getting his vessel towed due to reliance on the Harbor Police’s rescue 17 efforts. Nor does Plaintiff allege that had he stayed on the vessel he could have prevented 18 the damage. Indeed, Plaintiff alleges that the Harbor Police contacted private contractors 19 Vessel Assist and Sea Tow to determine whether they could provide assistance. These 20 companies did not provide assistance because Plaintiff could not verify that he had $5,000 21 to pay for the services. It appears that Plaintiff would have been faced with the obstacle of 22 verifying cash availability whether or not the Harbor Police got involved in the situation. 23 Because the Harbor Police did not put Plaintiff in a worse position than he would have been 24 in had the Harbor Police not engaged in rescue efforts, the Harbor Police are not liable for 25 26 27 28 defendants because the same law governs all of Plaintiffs’ claims and the simultaneous consideration of all of Plaintiff’s claims will promote judicial economy. The Court notes that although Plaintiff cites to the Federal Tort Claims Act as the statutory basis for his claims against the United States, the Suits in Admiralty Act, 46 U.S.C. § 741, et seq., is the exclusive remedy against the United States for maritime torts. Williams v. United States, 711 F.2d 893 (9th Cir. 1983). 08cv1360 BTM(BLM) 8 1 any damage to Plaintiff’s vessel. Plaintiff’s negligent training claim against the Port Authority 2 is also dismissed because it is predicated on Plaintiff’s negligence claim against the Harbor 3 Police.3 4 Finally, based on the allegations of the Complaint, Vessel Assist, Sea Tow,4 and the 5 U.S. Navy did not render any assistance to Plaintiff and did not induce any justifiable 6 reliance. Therefore, Plaintiff’s claims against these defendants fail as well. 7 8 IV. CONCLUSION 9 For the reasons discussed above, Defendants’ motions to dismiss are GRANTED. 10 Plaintiff’s Complaint is dismissed in its entirety for failure to state a claim. However, the 11 Court grants Plaintiff leave to file a First Amended Complaint within 20 days of the filing of 12 this order. If Plaintiff fails to file an amended complaint within the prescribed time, the Court 13 shall order the Clerk to close this case. 14 IT IS SO ORDERED. 15 16 DATED: August 25, 2009 17 18 Honorable Barry Ted Moskowitz United States District Judge 19 20 21 22 23 24 25 3 26 27 28 It is unclear whether Plaintiff seeks to hold the Port Authority responsible for the damage to his vessel based on the cancellation of his anchorage permit. To the extent that he does, Plaintiff’s claim fails because, among other things, the beaching of his vessel was not a reasonably probable consequence of the cancellation of his permit. 4 Sea Tow has not responded to the Complaint. 9 08cv1360 BTM(BLM)
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