Lawsuit Against Resort, Coast Guard Dismissed

OCEAN CITY – A U.S. District Court judge last week formally dismissed the federal lawsuit filed against the town of Ocean City and the Coast Guard by the owner of a commercial scallop boat that foundered off the coast of the resort in September 2006.

Last week, U.S. District Court Judge Catherine Blake officially dismissed the case filed against the town of Ocean City and the Coast Guard for their alleged roles in the demise of the commercial fishing vessel “Mighty Duck” in September 2006, pointing out different reasons to reach the same conclusion for the two defendants in the suit. Essentially, the case against Ocean City was dismissed because the vessel’s owner, Douglas Kelly, failed to file a formal notice of a claim with the town within the 180-day period required.

Kelly filed suit in U.S. District Court in September 2009, almost three years to the day of the incident, seeking a combined $250,000 in damages from the two defendants. However, because Kelly failed to file the requisite “notice of claim” within the prescribed 180 days, Judge Blake last week dismissed the case against the resort.

“Here, Kelly’s alleged injury occurred on September 11, 2006, the date of the accident,” the judge’s opinion reads. “He has not alleged that he provided any notice to the municipality within 180 days of the accident. Unless he can show good cause for his failure to provide notice, Kelly must have provided notice of his claim to the town within 180 days in order to be entitled to sue Ocean City for damages.”

In her memorandum to support the dismissal, Blake said Kelly’s excuse he hadn’t received reports from the Coast Guard, Maryland Natural Resources Police and the OCPD within the 180 days did not excuse the requirement to file a notice of claim within the required time limit.

“In essence, Kelly argues that he should be excused from the notice of claim requirement because within the 180 days, he had not spoken with the captain of the vessel and had not received incident reports from the Coast Guard, the Maryland Natural Resources, or the local police department,” the judge’s opinion reads. “This argument, however, must fail. He knew within a day of the accident that his vessel was a total loss, and that municipal personnel had been involved in the salvage effort. While he may not have known all of the details that he would, purportedly, later learn upon reading the reports, the fact that he did not receive the reports within 180 days of the accident did not prevent him from filing a notice of a claim.”

Similar time limitations also derailed Kelly’s suit against the U.S. Coast Guard, according to Blake, who also dismissed the case against the federal agency last week.

“The grounding of the vessel and the consequent damages are very unfortunate,” the judge’s memorandum reads. “Kelly’s claims against the Coast Guard, however, were filed outside the applicable limitations period and, therefore, must be dismissed. His claims against Ocean City must also be dismissed because Kelly has not alleged that he complied with the notice-of-claim requirement of Maryland’s Local Government Tort Claims Act.”

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. However, the suit, which was seeking $250,000 in damages from the defendants, was formally dismissed in U.S. District Court last week.