OCEAN CITY – Citing the often evoked doctrine of sovereign immunity, the town of Ocean City this week formally filed a motion to dismiss the federal lawsuit brought against it and the U.S. Coast Guard by the owner of a commercial fishing boat.
Local fisherman Douglas Kelly, owner of the “Mighty Duck,” a commercial scallop boat that grounded in a storm off the coast of Ocean City and eventually slammed into the fishing pier in the fall of 2006, last September filed suit in U.S. District Court against the Ocean City Mayor and Council and the U.S. Coast Guard for allegedly failing to assist in the salvage of the vessel before it met its eventual demise. In the early morning hours on Sept. 11, 2006, the “Mighty Duck,” a 42-foot Novi scallop boat operating out of the commercial harbor in West Ocean City, ran aground in storm-tossed seas just off the coast of the resort.
It was left at the mercy of the seas, which were churning with high winds and rough surf before it eventually slammed into the historic pier, causing pilings to fail and deck boards to buckle to the tune of about $25,000 in damages.
The “Mighty Duck” was ultimately dismantled on the beach and removed by dump truck in several large pieces.
Exactly three years to the day of the incident, Kelly filed a civil suit in federal court alleging negligence on the part of the town of Ocean City and the Coast Guard for the ultimate demise of the “Mighty Duck.” The suit is seeking $250,000 in damaged from each of the defendants in the case.
Most of the allegations in the 10-page complaint revolve around the actions, or inactions, of the defendants in the hours after the vessel first ran aground. According to the complaint, the Coast Guard responded to the grounded vessel around 2:40 a.m. and subjected the captain to a breathalyzer test, which yielded no presence of alcohol, according to the complaint. However, with the captain no longer aboard, the vessel continued to founder in the heavy surf and ultimately slammed into the pier.
The Ocean City Police Department (OCPD) was notified and responded to the scene to work in conjunction with the Coast Guard from the land, according to the complaint, which is why the town of Ocean City is listed as a defendant. According to the complaint, OCPD officers assured Coast Guard officials they would “keep an eye” on the vessel as they patrolled the Boardwalk in the early morning hours.
This week, the town of Ocean City filed a formal motion to dismiss the part of the case that applies to them, pointing out the owner and captain of the “Mighty Duck” erroneously relied on hearsay to presume the resort’s police department had taken charge of the salvage operation. According to the motion to dismiss, the fact the boat’s captain heard a police officer say the department would “keep an eye” on the foundering vessel did not create a duty owed by the town.
“The Court of Special Appeals has held where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and it has no element of private interest, it is governmental in nature,” the motion to dismiss reads. “The operation of a police force is unquestionably a governmental function.”