Opinion
C/A No. 2:02-1461-18
February 5, 2004
ORDER
I. Background
The present admiralty action is before this court for findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. This court held a bench trial on September 30, October 1-3, and October 17, 2003. Based on the evidence presented and heard on those dates, this court makes the following findings of fact and conclusions of law.
II. Findings of Fact
Plaintiff's odyssey from Fort Lauderdale to the unplanned destination of Charleston's Stono inlet may have lacked the romance of Homer's version, but both teach the necessity of respect and humility when trusting one's fate to the sea. That being said, this story opens under the same observation made by the Greek poet in his tale: "See now, how men lay blame upon [the] gods for what is after all nothing but their own folly." HOMER, The Odyssey, Book I.
1. Plaintiff, Barry Geftman ("Geftman" or plaintiff), is 56 years old and a resident of Haverford, Pennsylvania. He has been a boater for most of his life and has taken several boating classes.
2. Plaintiff testified that he has been totally disabled since December 9, 1997, and has been unable to work since then. During a hearing before an administrative law judge regarding plaintiff's eligibility to receive Social Security Disability benefits, plaintiff testified that he was unable to raise his arms above waist level and that he had concentration deficiencies that prevented him from thinking clearly and focusing. The latter condition certainly manifested itself May 6, 1999, and to a lesser extent, at the trial of this case.
3. Defendant Charleston Marine Services ("CMS") is a South Carolina Corporation with its principal place of business on the old Charleston Navy Base. CMS is also the Charleston, South Carolina licensee for Boat Owners Association of America ("Tow Boat US"). CMS is in the business of providing fuel drops to vessels, towing vessels, salvaging vessels, performing oil spill cleanup services, repairing vessels, and serving as U.S. Marshal substitute custodian for vessels under arrest. Tow Boat U.S. sells towing memberships to boaters. The towing memberships permit boaters, who run out of fuel, to call Tow Boat US or CMS for assistance.
4. Defendant Joe Beasenburg ("Beasenburg") is a veteran of the United States Navy, a Captain with a United States Coast Guard Masters license, a Charleston, South Carolina resident, and one of the owners of CMS.
5. On the morning of Sunday, May 2, 1999, plaintiff left the Fort Lauderdale, Florida area alone on the 48-foot M/V LOW PROFILE, towing a 16-foot Sea Ray bowrider, and proceeded north towards Virginia, spending the night at an undisclosed location north of Fort Lauderdale. On Monday, May 3, 1999, plaintiff left the undisclosed location and piloted the vessels further north to Daytona, Florida, where he spent the night. On the morning of Tuesday, May 4, 1999, plaintiff continued on his voyage destined for Jacksonville, Florida. Plaintiff arrived in Jacksonville on May 4, 1999, at an undisclosed marina and purportedly hired divers to repair M/V LOW PROFILE'S propellers, which had been serviced on April 27, 1999, in South Florida. Plaintiff could not remember the names of these divers or their employer, and he could not produce a receipt for the work performed by the divers, or a credit card receipt showing payment.
6. At around 8:00 a.m. on the morning of Thursday, May 6, 1999, plaintiff departed Jacksonville headed toward Charleston, South Carolina. Around 3:30 p.m., after operating M/V LOW PROFILE for approximately 7.5 hours, plaintiff was located in the Atlantic Ocean near the Tybee Island Sea Buoy (which is located approximately 5 miles off the coast of Tybee Island, Georgia). At this time, plaintiff testified that he experienced navigational equipment failure aboard M/V LOW PROFILE after encountering an electrical storm. Plaintiff's navigational equipment included a Loran unit, radar, and a Global Positioning System/Chartplotter. Plaintiff did not pilot M/V LOW PROFILE into Savannah, Georgia for repairs, but continued north toward Charleston without his navigational equipment.
7. At approximately 4:30 p.m., plaintiff testified that he was able to reestablish use of his navigational equipment, reestablish his position, and determine that he was located 10 miles off the coast of Charleston and within sight of downtown Charleston. If plaintiff was, in fact, within sight of downtown Charleston at 4:30 p.m. and his navigational equipment was functioning at that time, then given M/V LOW PROFILE'S speed as testified to by plaintiff, M/V LOW PROFILE and her tow would have been entering either the Charleston harbor or jetties prior to 5:30 p.m. This court does not find plaintiff's testimony credible as it relates to the length of time it took to navigate from the Tybee Island Sea Buoy to his 4:30 p.m. position; nor does it find plaintiff's testimony credible as to his ability to see "downtown" Charleston at 4:30 p.m. According to plaintiff's own liability expert, Commander Richard Dein ("Commander Dein" or "Dein"), it takes approximately 2.5 hours to travel between these two points, not one hour as testified to by plaintiff.
8. At approximately 6:27 p.m., plaintiff contacted the United States Coast Guard, who in turn, recorded in its log that plaintiff was out of fuel, and requested Tow Boat U.S.'s assistance for a fuel drop.
Plaintiff was a member of Tow Boat U.S.
9. Plaintiff claims to have provided coordinates to the Coast Guard as to M/V LOW PROFILE'S location at 6:27 p.m. and reported a water depth of 56 feet for the location. The coordinates plaintiff provided are near the entrance to the Stono Inlet, not at the entrance to Charleston Harbor. The Stono Inlet is southeast of downtown Charleston, located between Bird Key and Kiawah Island, South Carolina. It is impossible to see "downtown" Charleston from a boat located at or near the Stono Inlet. The Stono Inlet is dangerous for mariners as it has continuous shifting shoals surrounding its entrance, and does not contain a marked navigational channel for mariners to utilize. Many, if not all, of the National Oceanic and Atmospheric Administration ("NOAA") navigational charts for the Stono Inlet warn mariners that this is a changeable area with numerous breakers and that the "inlet is subject to continual change."
10. When M/V LOW PROFILE'S 6:27 p.m. coordinates are plotted on NOAA navigational charts of the area, the coordinates do not correspond with a depth anywhere near 56 feet of water; instead, the coordinates show a water depth of approximately 28 feet. Considering the admitted electrical failure earlier in the day on board M/V LOW PROFILE, plaintiff's claim that he could see downtown Charleston from his position at 4:30 p.m., and the impossibility of the reported water depth of plaintiff's 6:27 p.m. position, it appears that, at best, plaintiff was confused about his location when he called the Coast Guard.
11. During plaintiff's first conversation with the Coast Guard at 6:27 p.m., the Coast Guard advised plaintiff to drop his vessel's anchor. Plaintiff refused to drop anchor. Plaintiff testified that he did not drop anchor because he did not think that he had enough anchor line on M/V LOW PROFILE, that he was in water deep enough for M/V LOW PROFILE'S draft, and that he was afraid he would not be physically able to retrieve the anchor once it was deployed, According to Marion Stone, an individual hired to remove M/V LOW PROFILE from the beach of Kiawah Island, the vessel had at least 200 feet of anchor line in the anchor chain locker and had an electric winch on her bow, which would have assisted plaintiff with retrieving the anchor line and bringing the anchor back on board the vessel. In addition, plaintiff could have cut the anchor line had he been unable to retrieve the anchor.
During trial, plaintiff testified that he had contacted the Coast Guard prior to 6:27 p.m. to report engine trouble on M/V LOW PROFILE. However, none of the Coast Guard records or the Ship's Log drafted by plaintiff within several days of the events of May 6, 1999, indicate that plaintiff contacted the Coast Guard prior to 6:27 p.m. on May 6, 1999.
12. The Coast Guard contacted CMS about plaintiff's request for a fuel drop at approximately 6:30 p.m. on May 6, 1999. The Coast Guard provided CMS information about the make and model of the M/V LOW PROFILE, the vessel's purported location, and plaintiff's name. At no time did the Coast Guard indicate to CMS that plaintiff had any physical limitations, that M/V LOW PROFILE was disabled, or that plaintiff was expecting a tow. The Coast Guard log recorded plaintiff's initial contact, noting plaintiff's vessel was out of fuel. (Defs' Ex. 2.) Beasenburg and CMS responded to the Coast Guard that a vessel would be sent to provide plaintiff with fuel once a crew was arranged and diesel fuel for M/V LOW PROFILE was purchased and loaded on CMS's vessel located at the Charleston City Marina. As the Coast Guard records indicate, Beasenburg and CMS also asked the Coast Guard to instruct plaintiff to drop anchor.
13. Beasenburg then left his home and proceeded to the City Marina to CMS's vessel, a 25-foot work boat manufactured by Parker (the "Parker"), which was powered by two 150 horsepower outboard engines. The Parker was equipped with radar, 2 GPS receivers, VHF radio, searchlights and flashlights. Since CMS normally stored 10 gallons of diesel fuel on the Parker, and CMS was notified by the Coast Guard that plaintiff was out of fuel, Beasenburg thought it prudent to obtain 30 additional gallons of diesel fuel for M/V LOW PROFILE. After obtaining the additional 30 gallons of diesel fuel, Beasenburg left the Charleston City Marina to deliver the fuel to plaintiff, and informed the Coast Guard of his estimated time of arrival. Beasenburg and CMS were underway within one hour and ten minutes of receiving the call from the Coast Guard. When he noticed that the report of a 56-foot water depth was not reasonable given the position plaintiff provided to the Coast Guard, Beasenburg asked the Coast Guard to clarify M/V LOW PROFILE'S position. Since sunset was just after 8:00 p.m. that night, it was dark shortly after Beasenburg got under way.
14. At 8:22 p.m., for a second time, the Coast Guard recommended to plaintiff that he drop M/V LOW PROFILE'S anchor to prevent her and the Sea Ray from drifting into shallow water. For the second time, plaintiff refused to drop anchor. The coordinates given to the Coast Guard at 8:22 p.m. placed M/V LOW PROFILE in water 29 feet to 35 feet in depth, which was deep enough for M/V LOW PROFILE'S draft and away from the breakers at the entrance to the Stono Inlet. In other words, the M/V LOW PROFILE would have been able to anchor safely at this time had plaintiff complied with the Coast Guard's request.
15. At 8:54 p.m., Beasenburg and CMS arrived at plaintiff's reported position, in the Atlantic Ocean off of the Stono Inlet. Beasenburg could not find M/V LOW PROFILE at this position. Beasenburg obtained additional fix information on M/V LOW PROFILE from the Coast Guard on his way to the scene, and entered them into his GPS. Despite attempting to contact plaintiff via VHF radio, Beasenburg was never able to make radio or visual contact with M/V LOW PROFILE at its reported positions, which were relayed to him by the Coast Guard, who maintained radio contact with plaintiff.
16. The Coast Guard records do not indicate that plaintiff or Beasenburg made visual contact at any time. Beasenburg ran the 80-degree longitude line from south to north without success in locating M/V LOW PROFILE, then reversed course to deeper water and eventually ran south toward lights on the horizon, which were found to be fishing boats. During the entire time Beasenburg tried to locate M/V LOW PROFILE, the Parker's amber flashing lights were on. For some unknown reason, plaintiff and Beasenburg were never able to contact each other by radio.
The ephemeral chance of two ships meeting at sea has long been lamented in poetry, prose, and song; the fleeting nature of such a task cannot help but be a part of the law as well.
Ships that pass in the night, and speak each other in passing; Only a signal shown and a distant voice in the darkness; So on the ocean of life we pass and speak one another, Only a look and a voice; then darkness again and a silence.
HENRY WADSWORTH LONGFELLOW, Tales of a Wayside Inn, "The Theologian's Tale: Elizabeth" (thought to be the original source of the now universal metaphor).
17. At 8:57 p.m., plaintiff was able to start one engine, and, for some unknown reason, decided to head north at about 7 knots. Based upon the positions plaintiff provided to the Coast Guard, he piloted M/V LOW PROFILE, over the next 23 minutes, from a water depth of between 29 feet and 35 feet to a water depth of approximately 7 feet. A plot of M/V LOW PROFILE'S coordinates from the Coast Guard records indicate that plaintiff may have been attempting to enter the Stono Inlet-which does not have aids to navigation-without a chart or any knowledge of dangers that awaited him.
18. At 9:07 p.m., plaintiff continued on his track straight toward land. If plaintiff had anchored his vessel, as requested by the Coast Guard and Beasenburg and CMS, any time before or even slightly after 9:07 p.m., he would have avoided danger, and his vessels would not have run aground and been destroyed.
19. During this time period, Beasenburg informed the Coast Guard that he could not locate M/V LOW PROFILE, that plaintiff should drop his anchor, and that the Coast Guard needed to dispatch a vessel to perform a search and rescue. Beasenburg requested the Coast Guard to dispatch a vessel because he believed that plaintiff was placing himself and M/V LOW PROFILE in a perilous position.
20. At 9:20 p.m., because M/V LOW PROFILE was being piloted directly into treacherous, shallow water, the Coast Guard requested that plaintiff hit the "kill switch" on his vessel's engine in order to stop its progress. Instead, plaintiff continued to navigate across uncharted shoals and into a dangerous and unmarked inlet at a speed of 2.7 knots. The testimony of plaintiff's own liability expert, Commander Dein, was consistent with the proposition that, had plaintiff dropped anchor by 9:20 p.m., his vessels would not have been destroyed.
21. As of 9:32 p.m., plaintiff continued to navigate M/V LOW PROFILE directly toward land. The NOAA charts indicate water depths of between 6 and 8 feet in this area.
22. By 9:39 p.m., plaintiff informed the Coast Guard that M/V LOW PROFILE had a 5-foot draft, that the vessel was located in water with a depth of only 7 feet, and that he was still heading due north. By this time period, M/V LOW PROFILE was located in the middle of the shoals off of the Stono Inlet and in an area on the NOAA chart marked "breakers."
23. At 9:39 p.m., plaintiff requested navigational assistance of a safe heading from the Coast Guard, admitting that he did not know where he was. Due to the shallow water depth in plaintiff's vicinity at 9:45 p.m. and the shoals at Stono Inlet, the Coast Guard made another request of plaintiff to drop anchor.
24. Finally, at 9:50 p.m., plaintiff complied with the request and dropped M/V LOW PROFILE'S anchor, stopped her engine, and stopped piloting M/V LOW PROFILE north towards land.
25. By 10:23 p.m., the Coast Guard's semi-inflatable boat was underway to rescue plaintiff.
26. The Coast Guard records indicate that the Coast Guard rescue boat arrived on scene at 12:17 a.m. on May 7, 1999. Plaintiff adamantly refused to leave his vessel for over 45 minutes, until 1:10 a.m. By this time, weather conditions made a transfer of plaintiff from M/V LOW PROFILE to the Coast Guard rescue boat too dangerous. The Coast Guard rescue boat left plaintiff onboard M/V LOW PROFILE and returned to base, requesting a night helicopter hoist to rescue plaintiff from his vessel.
27. After plaintiff was lifted off of the M/V LOW PROFILE by helicopter, the 48-foot yacht and her tow beached themselves on Kiawah Island, victims of the Stono's gurging currents and shifting shallows.
III. Conclusions of Law
A. Jurisdiction
This court has admiralty subject matter jurisdiction over claims for damage to vessels located off of the South Carolina coast and for the loss of personal items of the vessels' owner and operator caused by the grounding of the vessels. These claims meet both the situs and nexus requirements for admiralty tort jurisdiction of this court. Sisson v. Ruby, 497 U.S. 358 (1990); In re Bird, 794 F. Supp. 575 (D.S.C. 1992);Nicholes v. M/V MAYA, 949 F. Supp. 391 (D.S.C. 1996).
Since the incident occurred off of the coast of South Carolina, Beasenburg lives and works in South Carolina, and CMS does business in South Carolina, this court has personal jurisdiction over the parties. Accordingly, the court has jurisdiction over the parties and subject matter of this case pursuant to 28 U.S.C. § 1333.
B. Applicable Admiralty Law
Plaintiff's claims are within this court's admiralty jurisdiction and are governed by the substantive admiralty law. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986); Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981); Nicholes, 949 F. Supp. at 397. Plaintiff's complaint is based on his allegations that the negligence of Beasenburg and CMS caused his property damage. Negligence is an actionable wrong under general maritime law.Leathers v. Blessing, 105 U.S. 626, 630 (1882). A plaintiff's cause of action for negligence is to be determined under the principles of maritime negligence rather than common law negligence. Pope Talbot, Inc. v. Hawn, 346 U.S. 406 (1953).
Plaintiff also brought a breach of contract action against defendants, but plaintiff put on no evidence regarding this claim at trial, and defendants were granted judgment as a matter of law on this cause of action at the close of plaintiff's case-in-chief.
The elements of a maritime negligence cause of action include: (1) the existence of a duty required by law that obligates a person to conform to a certain standard of conduct in order to protect another against unreasonable risks of harm; (2) a breach of the said duty by engaging in conduct that falls below the applicable standard; (3) a causal connection between the improper conduct and the resulting injury; and (4) an actual loss or injury to the plaintiff due to the improper conduct. Schumacher v. Cooper. 850 F. Supp. 438, 447 (D.S.C. 1994). The plaintiff has the burden of proof of these elements in a maritime negligence cause of action. Id. In admiralty cases, unless there is a relevant statute, the general maritime law, as developed by the judiciary, applies. East River S.S. Corp., 476 U.S. at 864. "Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." Id.
i. Duty
In its broadest terms, the general maritime law imposes a duty to exercise reasonable or ordinary care under the circumstances, a duty which includes the duty to warn of foreseeable dangers. Bubla v. Bradshaw, 795 F.2d 349, 353 (4th Cir. 1986).
There is no indication in the Coast Guard records that plaintiff ever requested a tow. The Coast Guard records for this incident only indicate that plaintiff was out of fuel. Beasenburg, whose testimony the court finds credible, testified that the Coast Guard, on behalf of plaintiff, requested CMS to provide a fuel drop to plaintiff. Beasenburg loaded fuel on board the Parker and set out to make a fuel drop to the M/V LOW PROFILE. Beasenburg's actions, in obtaining fuel and loading it on board the Parker, are consistent with the Coast Guard's request to provide fuel to plaintiff. It is inconceivable that had Beasenburg only been asked for a tow, he would have spent the time, money, and effort to obtain an extra thirty gallons of diesel fuel. It is equally inconcievable that had plaintiff informed the Coast Guard that he needed a tow, the Coast Guard would not have relayed this request to defendants. Plaintiff's request for a fuel delivery is further supported by his deposition testimony, where he admitted that he may have asked the Coast Guard to request a fuel drop on his behalf.
Based on this evidence, the court concludes that Beasenburg and CMS were only requested to provide plaintiff with fuel and not requested to tow plaintiff's vessels or to perform a search and rescue of plaintiff and/or his vessels. Since Beasenburg and CMS did not agree to tow plaintiff's vessels and only agreed to provide fuel, they did not owe a duty to use reasonable or ordinary care to tow plaintiff. Instead, Beasenburg and CMS owed a duty to plaintiff to use reasonable or ordinary care, under the circumstances, to provide fuel to plaintiff.
ii. Breach
When a duty does exist, the law of negligence commands that one who acts must do so reasonably in light of what is foreseeable; said another way, "reasonableness is the threshold to liability." Eklof Marine Corp. v. United States, 762 F.2d 200, 204 (2nd Cir. 1985). Any breach of a recognized duty must be determined "by reference to the surrounding circumstances and the knowledge, or lack thereof, on the part of the alleged tortfeasor." Id.
Beasenburg testified that he obtained enough fuel for a vessel the size of M/V LOW PROFILE, that he obtained plaintiff's position from the Coast Guard, that he requested the Coast Guard to instruct plaintiff to drop the anchor to M/V LOW PROFILE, that he entered M/V LOW PROFILE'S coordinates in the Parker's GPS, and that he proceeded to and arrived at the position where M/V LOW PROFILE was supposed to be located. Beasenburg further testified that M/V LOW PROFILE was not located at the coordinates plaintiff provided to the Coast Guard, that he attempted to locate M/V LOW PROFILE, and that he was not able to find the vessel. Beasenburg also stated that CMS is not in the search and rescue business and does not attempt to undertake prolonged searches for vessels that are not located at or near their reported positions.
Based upon the evidence, the court concludes that plaintiff has not met his burden of proving, by a preponderance of the evidence, that CMS and Beasenburg breached their duty of care with respect to the fuel drop. The court finds the Coast Guard records and the testimony of Commander Craig Lynch ("Commander Lynch" or "Lynch"), CMS's and Beasenburg's liability expert, to be persuasive on this issue.
Commander Lynch testified that CMS's and Beasenburg's duty of care with regard to providing fuel to a vessel is satisfied by obtaining fuel and navigating to the given location of the requesting vessel, in an attempt to deliver the fuel. CMS and Beasenburg satisfied this duty by obtaining fuel for plaintiff's vessel and transporting the fuel to the coordinates plaintiff provided to the Coast Guard. Defendants further ensured compliance with their duties by undertaking reasonable search efforts given the information they had obtained regarding plaintiff's situation and location.
The Coast Guard records support the conclusion that neither CMS nor Beasenburg breached any duty to plaintiff. The Coast Guard records do not indicate that any Coast Guard personnel requested plaintiff to start M/V LOW PROFILE'S engines and navigate toward the Parker. Furthermore, the Coast Guard records do not indicate that plaintiff and Beasenburg were ever able to locate each other. Accordingly, neither CMS nor Beasenburg breached any duty to intersect M/V LOW PROFILE and prevent her from being piloted, by plaintiff, from a safe location to a dangerous location where water was too shallow for her draft.
Plaintiff's liability expert, Commander Dein, admitted on cross-examination that it was not prudent to navigate into the shallow area of the Stono Inlet, where plaintiff navigated M/V LOW PROFILE. In fact, Commander Dein stated that even with his vast experience operating vessels, he would never attempt to navigate the Stono Inlet at night. Commander Dein further agreed that it was prudent for Beasenburg and CMS to refuse to navigate in water less than 20 feet deep in the vicinity of the Stono Inlet, and he would not fault Beasenburg for his decision not to navigate vessels into this area. Commander Dein stated that the operator of a vessel is responsible for the vessel's safety and that the master's decision on whether a particular area of water is not safe for his vessel should not be questioned. Commander Dein's testimony supports the court's determination that no breach of any duty Beasenburg and CMS may have owed to plaintiff occurred. Plaintiff, as the operator or master of M/V LOW PROFILE, was solely responsible for his vessel's safety. Lynch agreed with both Beasenburg and Dein regarding Beasenburg's and CMS's refusal to navigate vessels in water less than 20 feet deep near the Stono Inlet.
With regard to plaintiff's assertion that defendants breached a duty by not informing plaintiff that they were abandoning their search, the court finds that defendants did not place plaintiff in a worse position than he would have been in without their assistance. Plaintiff did not present any credible evidence at trial that his actions would have been different and effective enough to save his vessels had he been informed that CMS and Beasenburg were returning to the City Marina at the time they did. Neither did plaintiff present any credible evidence that he would have been able to successfully obtain the assistance of another company, at that particular time and under those conditions, that could have saved his vessels.
The court also finds that a prudent person in Beasenburg's situation could have relied upon an experienced mariner, like plaintiff, whose vessel was purportedly out of fuel, to provide the correct coordinates of his vessel's location, to drop his vessel's anchor, and to not leave his position and blindly navigate into water too shallow for his vessel's draft. Accordingly, Beasenburg's and CMS's conduct did not fall below the applicable standard of care under the circumstances of this case.
iii. Causation
The court also concludes that plaintiff has not met his burden with regard to the element of proximate causation. A plaintiff must demonstrate that a defendant's breach of duty proximately caused the plaintiff's injury. Schumacher v. Cooper, 850 F. Supp. at 451. Historically, proximate cause in the admiralty context has been defined as "that cause which in a direct, unbroken sequence produces the injury complained of and without which such injury would not have happened."Ente Nazionale Per L'Energia Electtrica v. Baliwag Navigation, Inc., 774 F.2d 648, 655 (4th Cir. 1985) (citing Olympic Towing Corp. v. Nebel Towing Co., Inc., 419 F.2d 230, 233 (5th Cir. 1969)). However, "it is well settled that `an act which merely furnishes the condition or occasion upon which injuries are received, but which does not put in motion the agency by or through which the injuries are inflicted, does not constitute the proximate cause of the harm,'"Ente Nazionale, 774 F.2d at 655-656 (quoting Simmons v. Amerada Hess Corp., 619 F.2d 440, 441 (5th Cir. 1980)). Consequently, in order for plaintiff to meet his burden with respect to causation, he must demonstrate factual and proximate causation between the alleged breach of duty and the resulting injuries.
The court finds that the cause of this incident was plaintiff's refusal to comply with the Coast Guard's instructions on three separate occasions to drop M/V LOW PROFILE'S anchor; plaintiff's conveyance of inconsistent and incorrect location information; plaintiff's decision to blindly navigate M/V LOW PROFILE in a northerly direction toward dangerous water; and plaintiff's failure to hit the kill switch when instructed to do so. The evidence at trial showed that M/V LOW PROFILE could have been saved by plaintiff: (1) anchoring as directed by the Coast Guard on three different occasions; (2) permitting M/V LOW PROFILE to drift on her original heading while she was located in deep water; or (3) getting underway and proceeding in a safe direction away from shallow water.
Plaintiff attempted to show that defendants caused his damages by undertaking to provide him with assistance and then abandoning their search without rendering assistance or giving him notice of their intent to call off the search, thereby denying him the opportunity to seek other assistance. The court disagrees. The court has found that plaintiff never communicated to defendants that he needed a tow, and plaintiff did not put on any credible evidence that he would have had any more success with another marine company once defendants abandoned their search efforts.
Commander Dein testified that plaintiff had a reasonable expectation that M/V LOW PROFILE would be towed; that Beasenburg's efforts to locate M/V LOW PROFILE were inadequate and unprofessional; that Beasenburg's efforts resulted in Beasenburg not being able to locate M/V LOW PROFILE; and that since Beasenburg and CMS did not tow M/V LOW PROFILE, the vessel was destroyed. This testimony ignores the Coast Guard records that only indicate plaintiff was out of fuel and Beasenburg's testimony that he was providing a fuel drop to plaintiff, not a tow. These further considerations illustrate the reasonableness of defendants' actions and highlight why plaintiff's damages occurred independent of defendants.
On three occasions, by plaintiff's own admission, the Coast Guard requested plaintiff to drop M/V LOW PROFILE'S anchor. The evidence indicates that at 6:27 p.m., 8:22 p.m., and 9:45 p.m. on the night of May 6, 1999, the Coast Guard requested plaintiff to drop his vessel's anchor. There was a lapse of over three hours and fifteen minutes from the first time the Coast Guard requested plaintiff to drop anchor until the time he complied with this request. During this time period, M/V LOW PROFILE was located in water deep enough for her draft, which plaintiff confirmed. Commander Dein further verified that, had plaintiff followed the Coast Guard's early requests to drop anchor, M/V LOW PROFILE and the Sea Ray would not have been destroyed.
Plaintiff testified that he was unable to drop M/V LOW PROFILE'S anchor at 6:27 p.m. because the vessel was located in water with a depth of 56 feet, that he thought that he had only 30 feet of anchor line, and that he was afraid he would not be physically able to retrieve the anchor once it was deployed from M/V LOW PROFILE. Plaintiff's reasons for not releasing M/V LOW PROFILE'S anchor are not convincing. First, Marion Stone ("Stone"), the individual hired to remove M/V LOW PROFILE from the beach at Kiawah Island, testified that he retrieved an anchor line from M/V LOW PROFILE that was approximately 200 feet in length, which is more than enough anchor line to anchor in 56 feet of water. Additionally, plaintiff obviously passed through water more shallow than 56 feet on the way to becoming grounded, further discrediting his explanations for failure to anchor in shallow water. Furthermore, even if plaintiff could not have retrieved the anchor by himself, he could have gotten someone to help him retrieve the anchor when they arrived for the fuel deployment or, in an emergency, just cut the anchor and have it retrieved by divers at a later date. Finally, Stone also testified that he located a smaller anchor line extending from the port bow of M/V LOW PROFILE that was approximately 100 feet in length.
The court finds that had plaintiff not piloted M/V LOW PROFILE north toward Kiawah Island and the shoals and had he permitted M/V LOW PROFILE to remain offshore of the Stono Inlet in water deep enough for her draft, the loss of the vessels would have been avoided. Plaintiff's decision to pilot M/V LOW PROFILE towards land and not to remain in deep water is a proximate cause of this incident.
It is obvious to the court that from the initial call to the Coast Guard at 6:27 p.m. until plaintiff finally complied with the Coast Guard request at 9:50 p.m., plaintiff did not know where he was, nor did he know where he was going.
Plaintiffs decision not to shut down M/V LOW PROFILE'S engine was also a proximate cause of this incident. At 9:20 p.m. and 9:39 p.m. on May 6, 1999, the Coast Guard requested plaintiff to engage his engine's "kill switch." Had the kill switch been engaged, the engine would have shut down. Had the engine shut down, the vessel's forward progress toward land and the shoals would have slowed or stopped and M/V LOW PROFILE would not have been destroyed, since the vessel was located in water with a depth of approximately 7 to 10 feet. Instead, plaintiff refused to comply with the Coast Guard's original request for 25 minutes, not engaging the kill switch until 9:45 p.m. During this time period, M/V LOW PROFILE was being navigated straight toward shallow water and destruction.
This court finds that all causes of the loss of M/V LOW PROFILE and her tow were solely attributable to plaintiff's actions, which include his failure to navigate his vessel in the Atlantic Ocean where the water was safe and deep enough for M/V LOW PROFILE'S draft; his failure and refusal to drop M/V LOW PROFILE'S anchor as requested by the Coast Guard on three separate occasions; his decision to navigate M/V LOW PROFILE north into shallow and dangerous water; and his failure and refusal to turn off M/V LOW PROFILE'S engine with the kill switch. In sum, plaintiff was the sole author of the M/V LOW PROFILE'S demise.
IV. Conclusion
Because plaintiff has not carried his burden of proof on any of the first three elements of a negligence cause of action in admiralty, judgment must be for the defendants.It is therefore, ORDERED, for the foregoing reasons, that judgment be entered for defendants as to all issues.