Coast Guard Immune from Suit for Negligent Search and Rescue

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SandBar 8:2, July, 2009 Recommended citation: Payne, Jason , Coast Guard Immune from Suit for Negligent Search and Rescue , 8:2 SandBar 21 (2009). Coast Guard Immune from Suit for Negligent Search and Rescue Azille v. U.S., 2008 U.S. Dist. LEXIS 97902 (D.V.I. 2008). *Jason M. Payne, J.D., University of Mississippi* The U.S. District Court for the Virgin Islands dismissed a suit against the federal government for the U.S. Coast Guard’s allegedly negligent search and rescue efforts. The court ruled that the discretionary function exception to the Suits in Admiralty Act (Act) prohibited the suit. Background On April 22, 2004, Bernard Azille, Bernard James, and John B. Sonson (plaintiffs) left St. Croix in Azille’s 26-foot boat headed for St. Thomas with a large load of fish they intended to sell. During the trip, the container holding the nearly two tons of fish shifted and the boat began taking on water. Azille called his daughter on his cell phone around 10:35 a.m. telling her they were about four nautical miles (nm) south of Buck Island near St. Thomas. Another daughter then notified the Coast Guard. By 11:05 a.m. the Coast Guard had launched a boat and had spoken with Azille who once again estimated their coordinates as four to five nm south of Buck Island. The Coast Guard advised Azille to begin throwing the catch overboard, which the fishermen did not do, and to fire a flare in ten minutes. The call ended when Azille’s phone stopped working. Approx i mately twenty-five minutes later, the boat capsized leaving the plaintiffs with no means of communication. Around 11:30 a.m., the Coast Guard boat, followed by a second boat, arrived in the vicinity of Azille’s de scription. After searching the area, the second boat headed east where they thought they had seen a flare. A helicopter joined the second boat in searching the area where they thought the flare had come from. Throughout the afternoon, two more helicopters joined the search to no avail. One of the helicopters deployed a datum marker buoy that the Coast Guard uses to find people lost at sea by determining the speed and direction of the current in a search area. They called the search off at 5:31 p.m. The following day, the Coast Guard resumed its search by helicopter at 6:31 a.m. and at 7:39 a.m. they launched a boat. Around 8:00 a.m., a private sailing vessel picked up the plaintiffs almost twenty-seven miles from where their boat capsized. By the time the plaintiffs were found, the Coast Guard estimated it had spent eighteen hours and forty minutes searching for them in an area of 192 nm. The plaintiffs later brought an action claiming the Coast Guard acted negligently in conducting the search for them. The plaintiffs argued that the Coast Guard was careless in repeatedly sending a search helicopter northeast of the location Azille gave when the wind was blowing from the east, thus pushing the plaintiffs west of the given location. Sovereign Immunity Under the doctrine of sovereign immunity, the United States cannot be sued without consent. The Suits in Admiralty Act expressly waives sovereign immunity “where a civil action in admiralty could be brought against a private person.”1 In essence, it allows the United States or a federally-owned corporation to be treated like any other individual or corporation in a civil suit in admiralty. The Act does contain an implied discretionary exception which allows the U.S. to claim sovereign immunity in limited circumstances. The exception exists to “prevent judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”2 The issue before the court was whether the Coast Guard’s action fell within the discretionary function exception. To answer that, the court first had to determine what conduct was actually at issue. The court found that the primary issue was the Coast Guard’s decision to send the helicopters to search the area northeast of Azille’s last reported location. However, the court recognized that “it is the nature of the conduct 85 that governs whether the exception applies.”3 So, the court did not focus on the decision to send the helicopters off to search to the northeast, examining instead the more general decision to mount a search and how it was conducted. The court had to determine if the Coast Guard’s decision on how to conduct the search was a matter of discretion. The court used a two-part test from Berkovitz v. United States in which “a court [first] considers whether the challenged government action is a . . . matter of discretion [and] [s]econd, a court must determine whether the judgment or decision at issue ‘is of the kind that the discretionary function exception was designed to shield.’”4 The court concluded that the Coast Guard had no mandatory duty to search for the plaintiffs and the search plan involved numerous factors, from the number of ships to the reported location and speed of drift. The court further supported its belief that the search was discretionary by referencing the U.S. National Search and Rescue Supplement (NSRS) and the Coast Guard Addendum to the NSRS.5 The documents offer guidance on conducting rescues saying “[rescue] planning is both an art and a science” and that “[USCG] personnel are expected to exercise broad discretion and to exercise sound judgment in performing the functions discussed.”6 The USCG addendum also states “this document creates no duties, standard of care or obligations to the public and should not be relied upon as a representation by the [USCG] as to the manner or proper performance in any particular case.”7 After determining that the Coast Guard’s action was discretionary, the court looked at whether the issue at hand is “susceptible to policy analysis.”8 They concluded that “the Coast Guard’s decision to attempt to rescue plaintiffs and its decisions about how to search for them are the kinds of decisions the discretionary function exception to the waiver of sovereign immunity under the Suits in Admiralty Act were designed to protect.”9 The court also referenced Lewis, et. al. v. United States, et. al., another case involving alleged negligence during a USCG rescue.10 In that case, the court likewise found that a USCG rescue is susceptible to policy analysis and therefore falls within the discretionary function exception. Conclusion This case was dismissed by the federal district court judge based on the court’s decision that the Coast Guard’s actions fell under the discretionary function exception to the Suits in Admiralty Act. Sovereign immunity will likely protect the Coast Guard from any similar negligence claims arising out of an attempted ocean rescue operation. Endnotes: 1. Azille v. U.S. , 2008 U.S. Dist. LEXIS 97902 at 5 (D.V.I. 2008). 2. United States v. Gaubert, 499 U.S. 315, 323 (1991). 3. Id.* at 7. 4. Azille,* 2008 U.S. Dist. LEXIS 97902, at 6 (quoting from Berkovitz v. United States, 486 U.S. 531, 536 (1988)). 5. Id.* at 9. 6. Id.* at 9. 7. Id.* at 10. 8. Gaubert* 499 U.S. at 325. 9. Azille, 2008 U.S. Dist. LEXIS 97902 at 11. 10. Lewis v. U.S.*, 2002 WL 34104078.
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SandBar 8:2, July, 2009
Recommended citation: Payne, Jason , Coast Guard Immune from Suit for Negligent Search and Rescue , 8:2 SandBar 21 (2009).

Azille v. U.S., 2008 U.S. Dist. LEXIS 97902 (D.V.I. 2008).

Jason M. Payne, J.D., University of Mississippi

The U.S. District Court for the Virgin Islands dismissed a suit against the federal government for the U.S. Coast Guard’s allegedly negligent search and rescue efforts. The court ruled that the discretionary function exception to the Suits in Admiralty Act (Act) prohibited the suit.

Background
On April 22, 2004, Bernard Azille, Bernard James, and John B. Sonson (plaintiffs) left St. Croix in Azille’s 26-foot boat headed for St. Thomas with a large load of fish they intended to sell. During the trip, the container holding the nearly two tons of fish shifted and the boat began taking on water. Azille called his daughter on his cell phone around 10:35 a.m. telling her they were about four nautical miles (nm) south of Buck Island near St. Thomas. Another daughter then notified the Coast Guard. By 11:05 a.m. the Coast Guard had launched a boat and had spoken with Azille who once again estimated their coordinates as four to five nm south of Buck Island. The Coast Guard advised Azille to begin throwing the catch overboard, which the fishermen did not do, and to fire a flare in ten minutes. The call ended when Azille’s phone stopped working. Approx i mately twenty-five minutes later, the boat capsized leaving the plaintiffs with no means of communication.
Around 11:30 a.m., the Coast Guard boat, followed by a second boat, arrived in the vicinity of Azille’s de scription. After searching the area, the second boat headed east where they thought they had seen a flare. A helicopter joined the second boat in searching the area where they thought the flare had come from. Throughout the afternoon, two more helicopters joined the search to no avail. One of the helicopters deployed a datum marker buoy that the Coast Guard uses to find people lost at sea by determining the speed and direction of the current in a search area. They called the search off at 5:31 p.m. The following day, the Coast Guard resumed its search by helicopter at 6:31 a.m. and at 7:39 a.m. they launched a boat. Around 8:00 a.m., a private sailing vessel picked up the plaintiffs almost twenty-seven miles from where their boat capsized. By the time the plaintiffs were found, the Coast Guard estimated it had spent eighteen hours and forty minutes searching for them in an area of 192 nm.
The plaintiffs later brought an action claiming the Coast Guard acted negligently in conducting the search for them. The plaintiffs argued that the Coast Guard was careless in repeatedly sending a search helicopter northeast of the location Azille gave when the wind was blowing from the east, thus pushing the plaintiffs west of the given location.

Sovereign Immunity
Under the doctrine of sovereign immunity, the United States cannot be sued without consent. The Suits in Admiralty Act expressly waives sovereign immunity “where a civil action in admiralty could be brought against a private person.”1 In essence, it allows the United States or a federally-owned corporation to be treated like any other individual or corporation in a civil suit in admiralty. The Act does contain an implied discretionary exception which allows the U.S. to claim sovereign immunity in limited circumstances. The exception exists to “prevent judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”2
      The issue before the court was whether the Coast Guard’s action fell within the discretionary function exception. To answer that, the court first had to determine what conduct was actually at issue. The court found that the primary issue was the Coast Guard’s decision to send the helicopters to search the area northeast of Azille’s last reported location. However, the court recognized that “it is the nature of the conduct 85 that governs whether the exception applies.”3 So, the court did not focus on the decision to send the helicopters off to search to the northeast, examining instead the more general decision to mount a search and how it was conducted.
      The court had to determine if the Coast Guard’s decision on how to conduct the search was a matter of discretion. The court used a two-part test from Berkovitz v. United States in which “a court [first] considers whether the challenged government action is a . . . matter of discretion [and] [s]econd, a court must determine whether the judgment or decision at issue ‘is of the kind that the discretionary function exception was designed to shield.’”4
     The court concluded that the Coast Guard had no mandatory duty to search for the plaintiffs and the search plan involved numerous factors, from the number of ships to the reported location and speed of drift. The court further supported its belief that the search was discretionary by referencing the U.S. National Search and Rescue Supplement (NSRS) and the Coast Guard Addendum to the NSRS.5 The documents offer guidance on conducting rescues saying “[rescue] planning is both an art and a science” and that “[USCG] personnel are expected to exercise broad discretion and to exercise sound judgment in performing the functions discussed.”6 The USCG addendum also states “this document creates no duties, standard of care or obligations to the public and should not be relied upon as a representation by the [USCG] as to the manner or proper performance in any particular case.”7
   After determining that the Coast Guard’s action was discretionary, the court looked at whether the issue at hand is “susceptible to policy analysis.”8 They concluded that “the Coast Guard’s decision to attempt to rescue plaintiffs and its decisions about how to search for them are the kinds of decisions the discretionary function exception to the waiver of sovereign immunity under the Suits in Admiralty Act were designed to protect.”9 The court also referenced Lewis, et. al. v. United States, et. al., another case involving alleged negligence during a USCG rescue.10 In that case, the court likewise found that a USCG rescue is susceptible to policy analysis and therefore falls within the discretionary function exception.

Conclusion
This case was dismissed by the federal district court judge based on the court’s decision that the Coast Guard’s actions fell under the discretionary function exception to the Suits in Admiralty Act. Sovereign immunity will likely protect the Coast Guard from any similar negligence claims arising out of an attempted ocean rescue operation.

Endnotes:
1.   Azille v. U.S. , 2008 U.S. Dist. LEXIS 97902 at *5 (D.V.I. 2008).
2.   United States v. Gaubert, 499 U.S. 315, 323 (1991).
3.   Id. at *7.
4.   Azille, 2008 U.S. Dist. LEXIS 97902, at *6 (quoting from Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
5.   Id. at *9.
6.   Id. at *9.
7.   Id. at *10.
8.   Gaubert 499 U.S. at 325.
9.   Azille, 2008 U.S. Dist. LEXIS 97902 at *11.
10. Lewis v. U.S., 2002 WL 34104078.