Appeal from a judgment entered in the Eastern District of New York, Thomas C. Platt, Jr., District Judge, 542 F. Supp. 677, dismissing a negligence complaint by an active duty Coast Guardsman against a member of the Coast Guard Auxiliary arising out of a towing accident, the central issue being whether "authorized Coast Guard duty" within the meaning of 14 U.S.C. § 827 (1976) embraces an auxiliary Coast Guard vessel on its return voyage to its home port and outside its designated patrol area. Affirmed.
Timbers, Kearse and Pierce, Circuit Judges.
On this appeal from a judgment entered in the Eastern District of New York, Thomas C. Platt, Jr., District Judge, 542 F. Supp 677, dismissing this maritime complaint against Leonard Klaver (and the United States), the essential question is whether the EL MAR II (El Mar), a grounded vessel whose skipper was a member of the Coast Guard Auxiliary (Auxiliary), was a "public vessel" within the meaning of 14 U.S.C. § 827 (1976)*fn1 at the time a commissioned Coast Guard cutter, the CG 413-49, attempted to refloat the grounded El Mar. More specifically, the key issue is whether the district court correctly held that "authorized Coast Guard duty" within the meaning of § 827 embraces an auxiliary Coast Guard vessel on its return voyage to its home port and outside its designated patrol area.
We hold that the district court correctly construed the statute. We affirm.
The facts are straightforward and are not in dispute. All events occurred on May 27, 1978.
Klaver was on patrol in his 35 foot motorboat, the El Mar, pursuant to his duties as a member of the Auxiliary. Klaver was an experienced boatsman and had completed the required courses necessary to become a member of the Auxiliary. He had reported to the Freeport, Long Island marina where his boat was tied up. He set out on patrol with two other Auxiliary members as his crew. The three wore Auxiliary uniforms and placed an Auxiliary sign on each side of the vessel, identifying the El Mar as an Auxiliary vessel.
After Klaver and his crew completed their pre-departure check, they proceeded to the Coast Guard's Atlantic Beach station where Klaver received from the Coast Guard his written patrol order for the day. Klaver and his crew were assigned to patrol from 1 P.M. to 6 P.M. in the area from Hog Island to Reynolds Channel. According to the patrol order, Klaver was expected to return to Freeport at 6:30 P.M.*fn2
During its patrol, the El Mar assisted two disabled pleasure boats. After the second assist, at approximately 4:30 P.M., the El Mar lost the use of one of its engines. Klaver then requested permission of the Coast Guard by radio "to secure the patrol" and to return to home port at Freeport. Permission was granted. En route back to Freeport, the El Mar ran aground on a bar or shoal. Klaver radioed the Coast Guard for assistance. The 41 foot Coast Guard cutter, CG 413-49, was sent to assist the El Mar. Appellant Thomas Cusanelli, a full time active Coast Guardsman, was aboard the CG 413-49 when it attempted to assist the El Mar.
While the Coast Guard cutter was attempting to tow the El Mar, a metal stern cleat on the El Mar, to which the tow line was secured, came loose, hurtled onto the Coast Guard cutter, and struck Cusanelli. The cutter left to obtain medical assistance for Cusanelli. Another vessel subsequently assisted the El Mar, which returned to Freeport and tied up there at 6:30 P.M.
Cusanelli commenced an action in the New York Supreme Court, Queens County, to recover damages for personal injuries he claimed to have sustained as a result of the towing operation. He asserted a negligence claim against Klaver and a products liability claim against Perko Manufacturing Corp., Perkins Marine Lamp & Hardware Corp., and Perko, Inc., the last three being the manufacturers and distributors of the metal cleat.
The United States, acting on behalf of Klaver, removed the action to the District Court for the Eastern District of New York. The grounds for removal were that, at the time of the accident, Cusanelli was on active duty as a Coast Guardsman; Klaver was a member of the Coast Guard Auxiliary; the El Mar, having been assigned to authorized Coast Guard duty, was a public vessel within the meaning of 14 U.S.C. § 827 (1976); and, for reasons developed more fully below, ...