Coast Guard Seeks Dismissal In OC Fishing Boat Lawsuit

OCEAN CITY – Citing statute of limitations and jurisdictional issues, the U.S. Coast Guard last month formally filed a motion to dismiss the federal lawsuit brought against it and the town of Ocean City by the owner of a commercial fishing boat.

A little over one month after the town of Ocean City filed its own motion to dismiss the case, the Coast Guard last week filed a similar motion although the grounds sought for the dismissal are different. While Ocean City is seeking a dismissal of the case after citing the oft-evoked doctrine of sovereign immunity, the Coast Guard is pursuing a two-pronged attack in its effort for a dismissal.

According to the Coast Guard’s motion filed on Tuesday, the suit filed against the federal agency by local fisherman Douglas Kelly, owner of the former “Mighty Duck,” a commercial scallop boat the foundered off the coast of Ocean City on Sept. 11, 2006 and eventually slammed into the fishing pier, the case should be dismissed on two distinct grounds.

In its formal answer the Kelly’s complaint, the Coast Guard asserts the suit should be dismissed because of a lack of subject matter jurisdiction and a failure to state a claim upon which relief can be granted. In short, the Coast Guard points out in its answer to the case it should have been filed in the court’s admiralty jurisdiction, which has a two-year statute of limitations. Kelly filed suit in U.S. District Court last September, three years after the incident.

“The plaintiff’s complaint undoubtedly falls within the court’s admiralty jurisdiction,” the Coast Guard’s formal answer reads. “A lawsuit arises under admiralty jurisdiction if the incident giving rise to the plaintiff’s injury occurred on navigable waters, and the incident giving rise to the plaintiff’s complaint was a traditional maritime activity.”

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.

In the portion of the suit pertaining to the Coast Guard, the plaintiff asserts the federal agency failed to “render aid in accordance with the standards of acceptable seamanship,” and “breached its duty to render salvage assistance.” However, the Coast Guard claims in its motion to dismiss the case Kelly’s claims are unfounded because the federal agency did everything required of it under maritime law.

“The plaintiff alleges that the United States accepted a rescue and salvage mission, which created a duty to render assistance to the plaintiff,” the answer reads. “The United States would deny the allegation, but the gravamen of the plaintiff’s complaint is ‘salvage work,’ which is traditionally maritime in nature.”

Again, in simpler terms, the Coast Guard asserts in its formal answer the owner of the former “Mighty Duck” did not file his complaint in the appropriate jurisdiction, and even if he had done so, the two-year statute of limitations would have expired by the time he filed the complaint in September 2009.

“Where the conditions under which the government has agreed to waive its sovereign immunity have not been met, federal subject matter jurisdiction does not exist,” the answer reads. “Plaintiff’s suit is, therefore, subject to dismissal for lack of subject matter jurisdiction.”

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