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    1) Grace Frank, as administratrix of the estate of Daniel Frank who drowned, sued the United States under the Federal Tort Claims Act and Public Vessels Act alleging that negligence of the Coast Guard caused his death. 2) Daniel Frank was a passenger on a disabled fishing boat near the New Jersey coast during rough weather. The Coast Guard lifeboat towed the fishing boat but Frank fell overboard during the tow. He drowned before the lifeboat could rescue him. 3) Frank alleged the lifeboat's defective equipment and understaffing delayed its rescue efforts. However, the court found no proof the Coast Guard caused or worsened Frank's fall or position in the water. As a voluntary rescuer,

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    United States Court of Appeals Third Circuit

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    1) Grace Frank, as administratrix of the estate of Daniel Frank who drowned, sued the United States under the Federal Tort Claims Act and Public Vessels Act alleging that negligence of the Coast Guard caused his death. 2) Daniel Frank was a passenger on a disabled fishing boat near the New Jersey coast during rough weather. The Coast Guard lifeboat towed the fishing boat but Frank fell overboard during the tow. He drowned before the lifeboat could rescue him. 3) Frank alleged the lifeboat's defective equipment and understaffing delayed its rescue efforts. However, the court found no proof the Coast Guard caused or worsened Frank's fall or position in the water. As a voluntary rescuer,

    Original Description:

    Filed: 1957-12-16 Precedential Status: Precedential Citations: 250 F.2d 178 Docket: 12251_1

    Original Title

    Grace Frank, Administratrix of the Estate of Daniel Frank, Deceased v. United States of America, Daniel S. Kowalski and Charles Januscz, and Daniel F. Kowalski, Charles Januscz and the Cabin Cruiser Sea Captain, Formerly Known as the Orion, Her Engine, Tackle, Etc., Respondents-Impleaded, and Paul F. Zisa, of the Cabin Cruiser Sea Captain, 250 F.2d 178, 3rd Cir. (1957)

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    1) Grace Frank, as administratrix of the estate of Daniel Frank who drowned, sued the United States under the Federal Tort Claims Act and Public Vessels Act alleging that negligence of the Coast Guard caused his death. 2) Daniel Frank was a passenger on a disabled fishing boat near the New Jersey coast during rough weather. The Coast Guard lifeboat towed the fishing boat but Frank fell overboard during the tow. He drowned before the lifeboat could rescue him. 3) Frank alleged the lifeboat's defective equipment and understaffing delayed its rescue efforts. However, the court found no proof the Coast Guard caused or worsened Frank's fall or position in the water. As a voluntary rescuer,

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    8 views4 pages

    United States Court of Appeals Third Circuit

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    1) Grace Frank, as administratrix of the estate of Daniel Frank who drowned, sued the United States under the Federal Tort Claims Act and Public Vessels Act alleging that negligence of the Coast Guard caused his death. 2) Daniel Frank was a passenger on a disabled fishing boat near the New Jersey coast during rough weather. The Coast Guard lifeboat towed the fishing boat but Frank fell overboard during the tow. He drowned before the lifeboat could rescue him. 3) Frank alleged the lifeboat's defective equipment and understaffing delayed its rescue efforts. However, the court found no proof the Coast Guard caused or worsened Frank's fall or position in the water. As a voluntary rescuer,

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    of 4

    250 F.

    2d 178

    Grace FRANK, Administratrix of the Estate of Daniel Frank,


    Deceased, Appellant,
    v.
    UNITED STATES of America, Daniel S. Kowalski and Charles
    Januscz, Appellees, and Daniel F. Kowalski, Charles Januscz
    and THE Cabin Cruiser SEA CAPTAIN, Formerly Known as
    THE
    ORION, Her Engine, Tackle, Etc., Respondents-Impleaded,
    and
    Paul F. Zisa, Claimant of The Cabin Cruiser Sea Captain.
    No. 12251.

    United States Court of Appeals Third Circuit.


    Argued Nov. 7, 1957.
    Decided Dec. 16, 1957.

    Louis R. Harolds, New York City, William L. Standard, New York City,
    Advocate (Morris F. Pearlman, Proctor, Jersey City, N.J., on the brief),
    for appellant.
    William W. Ross, Washington D.C. (George Cochran Doub, Asst. Atty.
    Gen., Chester A. Weidenburner, U.S. Atty., Newark, N.J., Paul A.
    Sweeney, Atty., Dept. of Justice, Washington, D.C., on the brief), for
    appellees.
    Before MARIS, STALEY and HASTIE, Circuit Judges.
    HASTIE, Circuit Judge.

    Appellant is the administratrix of Daniel Frank who was drowned in the ocean
    very near the New Jersey shore under circumstances which, in appellant's view,
    obligate the United States to pay damages to Frank's dependents. Claiming that
    either negligence of employees of the government within the meaning of the
    Federal Tort Claims Act, 28 U.S.C. 1346(b), 2674, or negligence of a public
    vessel covered by the Public Vessels Act, 43 Stat. 1112, 46 U.S.C.A. 781,

    caused Frank's death, appellant filed this libel asserting that one of the above
    cited statutes, supplemented, as Congress has authorized, by the New Jersey
    Wrongful Death Act, N.J.S.A. 2A:31-1, provides a legal basis for recovery
    against the United States.
    2

    Decedent was a passenger on a thirty foot cabin cruiser during a fishing


    expedition off the New Jersey coast. Returning in midafternoon, the cruiser
    became disabled, because of engine failure, and anchored less than four
    hundred yards off Sandy Hook. The weather was clear, but the velocity of the
    northwesterly wind had risen to about twenty-five miles per hour. In addition,
    there was a strong tidal rip running toward the shore and creating breaking
    waves four feet or more in height. Small craft warnings were flying from the
    Coast Guard Lifeboat Station at Sandy Hook. All but one of the Coast Guard
    boats suitable for towing the disabled cruiser were out assisting other craft in
    the rough seas. The only available boat, a heavy motor lifeboat, was dispatched
    to assist the disabled cruiser and took it in tow.

    During the tow Frank attempted to walk along the deck of the cruiser to the
    after cabin, holding a handrail as he proceeded. The cruiser heeled sharply, the
    handrail broke and Frank fell into the sea. The lifeboat crew immediately cut
    the tow line and made every effort to rescue Frank. However, he drowned
    before they could be of assistance to him.

    Appellant contends that several derelictions of the Coast Guard were


    responsible causes of Frank's death. First, the lifeboat had a defective reverse
    gear which delayed it in reaching Frank after he fell into the sea. Second, the
    life rings in the lifeboat were so secured that they could not immediately be
    thrown overboard. Third, the crew of the lifeboat was less than the standard
    and customary Coast Guard complement.

    The district court found for the United States on the ground that the plaintiff
    had not carried her burden of proving that the attempted rescue failed because
    of any of the faults of the Coast Guard. We agree that the United States was
    entitled to judgment, but place our affirmance on a different ground.

    On appellant's own theory the effect of the alleged faults of the Coast Guard
    was to prevent its own rescue party from reaching the drowning man soon
    enough to save him. There has been no showing that any fault of the Coast
    Guard contributed in any way to Frank's falling into the sea. Nor did the Coast
    Guard in any way worsen his plight thereafter. In saying this we have not
    overlooked a suggestion on this appeal that the Coast Guard may have

    worsened Frank's position by taking the cruiser in tow. No such finding was
    made below and on the evidence such a finding could not reasonably have been
    made. The present claim must stand or fall on the theory that the Coast Guard
    was at fault solely in failing to get help to the decedent as soon as would have
    been the case had the rescue vessel been in proper condition and properly
    equipped and manned.
    7

    If the United States is liable at all for negligence of the Coast Guard in
    connection with an attempted rescue operation, the responsibility of this public
    agency rises no higher than that of a private salvor. Upon that limitation the full
    bench of this court was agreed in P. Dougherty Co. v. United States, 3 Cir.,
    1953, 207 F.2d 626, certiorari denied 347 U.S. 912, 74 S.Ct. 476, 98 L.Ed.
    1068, although on other points we were divided. We recognized that the Coast
    Guard, like a private salvor, renders voluntary assistance where no duty to help
    is owed the person or vessel in distress. True, it is a statutory function of the
    Coast Guard to establish and operate rescue facilities. 14 U.S.C. 2. Congress
    has also provided that the 'Coast Guard may render aid to persons and protect
    and save property at any time and at any place at which Coast Guard facilities
    and personnel are available and can be effectively utilized.' 14 U.S.C. 88(b).
    But this legislation falls short of creating a governmental duty of affirmative
    action owed to a person or vessel in distress. Lacey v. United States,
    D.C.Mass.1951, 98 F.Supp. 219; see Indian Towing Co. v. United States, 1955,
    350 U.S. 61, 69, 76 S.Ct. 122, 100 L.Ed. 48; cf. Restatement, Torts, 314. An
    obligation to render aid may grow out of a relationship such as master and
    servant or ship and crewman. Kirincich v. Standard Dredging Co., 3 Cir., 1940,
    112 F.2d 163; Di Nicola v. Pennsylvania R.R., 2 Cir., 1946, 158 F.2d 856;
    Sadler v. Pennsylvania R.R., 4 Cir., 1947, 159 F.2d 784. But there is no such
    relational basis for a duty here.

    In the absence of any duty creating relationship the responsibility of a volunteer


    is strictly limited. He may be liable if the injured person has been harmed
    because of reliance upon some representation concerning the voluntary service.
    Indian Towing Co. v. United States, supra. More generally, if an attempted
    rescue or other voluntary service is so conducted that it affirmatively injures the
    one in distress or worsens his positions, there may be liability. United States v.
    Lawter, 5 Cir., 1955, 219 F.2d 559; Eastern Air Lines v. Union Trust Co., 1955,
    95 U.S.App.D.C. 189, 221 F.2d 62, affirmed per curiam, United States v. Union
    Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796; Restatement, Torts, 323,
    324. But again, we have in this case none of these special liability creating
    factors. We have only a diligent rescue effort which proved ineffectual for lack
    of adequate equipment, preparation or personnel. For such ineffectual effort a
    private salvor is not liable. See the citation and elaborate analysis of the leading

    cases by Chief Judge Biggs, dissenting in P. Dougherty Co. v. United States,


    supra, 207 F.2d at pages 643-648. By parity of reasoning the United States also
    is relieved of liability in this case.
    9

    The judgment will be affirmed.

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