(CN) — On May 2, 2019, Washington state resident Michael Powers was pulled from the frigid waters of Deception Pass after his boat sank, leaving behind the body of his cousin who died in the water. But while Powers was eventually rescued by a passing fishing boat, he waited six hours after an initial emergency call was made to the U.S. Coast Guard, which called off all rescue operations, stating there was “no vessel in distress.”
Nearly four years later, Powers is battling the government for its alleged negligence in federal court, where U.S. District Judge Thomas Zilly struck down the government’s motion to dismiss and Powers’ motion for partial summary judgment, leading to speculation that the case may find its way to trial next month.
Powers’ attorneys, Joseph Pipinich and Sara Leonetti, expressed confidence regarding the case’s outcome on Thursday. “We think we’re going to win,” Pipinich said in an interview, particularly since he says the case involves so much injustice.
From the government’s standpoint, the case should be thrown out under the Suits in Admiralty Act, claiming it has not waived its sovereign immunity and has not consented to be sued. Judge Zilly rejected this theory, although he also passed on Powers’ motion to avoid trial, as the U.S. Coast Guard does not have a policy mandating it to rescue the public or to abide by a certain standard of care.
On the day of the incident in 2019, Powers and his cousin Richard Seay, 54, launched Powers’ 20-foot Duckworth boat from the Cornet Bay boat ramp near Deception Bay, Washington, to go halibut fishing on opening day. But while the waters were calm east of Deception Bay Bridge, waves quickly built to four to six-foot swells.
As the men passed the bridge, a rogue wave shattered the boat’s windshields, filling the boat with water. The boat sank 1.2 miles west of the bridge around 4:45 a.m., according to Powers’ complaint, where the water was about 47 degrees Fahrenheit.
Shortly after, Seay went into shock, dying 20 to 30 minutes later.
By 11:00 a.m., Powers, too, succumbed to shock and lost consciousness. However, a passing fishing boat found him floating face-up and pulled him aboard an hour and a half later, where he was hypothermic and in clear distress.
Powers claims he would have been rescued hours before if only the U.S. Coast Guard hadn’t called off local search efforts.
At 4:47 a.m., a boater named David Shell called 911 after witnessing Powers’ boat sink, stating the water was so dangerous he could not turn back to help. Then, at 5:01 a.m., Island County Dispatch relayed Shell’s 911 report to the Coast Guard Sector Puget Sound SCC, who carry out the search and rescue of capsized vessels and survivors.
Within minutes, the Coast Guard contacted Shell, who said one of his passengers saw the missing boat’s lights underwater. Shell described the boat as a 22-foot Hewescraft but said it was too dark to tell what type of boat it was or how many people were on board.
The Coast Guard then issued an urgent marine information broadcast seeking the aid of nearby vessels to help search for the capsized vessel. At 5:11 a.m., a boat called “the Kraken” responded, reporting it observed a boat traveling east from the bridge heading back to the port. The Coast Guard asked the Kraken to make contact, it did, and the agency assumed it was the same boat – even though the Kraken reported five other boats that had left that morning without returning.
By 5:28 a.m., a shift change occurred, where a command duty officer briefed the Coast Guard District 13, stating the agency confirmed the missing boat had not capsized and turned around due to weather. By 6:16 a.m., the oncoming operations unit closed the Marine Information for Safety and Law Enforcement case as a “confirmed false alert.”
While this was happening, other federal, state and local agencies were advised of Shell’s report.
“People were actively rescuing and turned their boats around,” said Pipinich.
At 5:00 a.m., Navy Search and Rescue reported it could bring out a helicopter for rescue, but it was advised to hold because other agencies were responding. An Island County Sheriff Officer also responded but canceled his response after learning other agencies were responding.
Between 5:00 and 5:30 a.m., North Whidbey Fire and Rescue sent a marine unit, while the Swinomish Police Department sent a boat with officers wearing dry suits for water rescue.
“Shortly thereafter, the Coast Guard specifically and falsely told the Swinomish Police Department that it had made contact with the vessel in distress and advised the Swinomish Police Department that the vessel in distress had not capsized,” Powers wrote in the complaint.
But regardless of the events that day, Judge Zilly ruled Thursday that the extent to which the Coast Guard’s search and rescue manual addendum limits personnel “constitutes a factual question precluding summary judgment regarding the first prong of the ‘discretionary function’ exception standard.’”
More specifically, its search and rescue manual addendum contains a disclaimer stating that it “creates no duties, standard of care or obligations to the public and should not be relied upon as a representation by the Coast Guard as to the manner of proper performance in any particular case.”
Should the Coast Guard always be required to use its Search and Rescue Optimal Planning System, the government claims it will hinder its response because it may not be the most effective use of its time and effort in every situation. The government further argues that if the Coast Guard is prevented from declaring that no person or vessel is in distress, rescuers could be put in harm’s way, and resources could be diverted from real emergencies.
“At trial, defendant will be permitted to present evidence and argument on the issues of whether the addendum restricts the discretion of Coast Guard personnel and, if not, whether the decisions made on May 2, 2019, in light of the addendum’s guidance, were based on or susceptible to policy considerations,” wrote Zilly.
Attorneys for the U.S. government were not available for comment.
Follow @alannamayhampdx
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
