MEMORANDUM
From: D.V. SMITH, LCDR USCG Response Department
Reply to Attn of:Sr LCDR D.V. Smith 503-240-9317
To: Senior Auxiliarist, Sector Portland
Thru: Deputy Commander, Sector Portland
Subj: AUXILIARIST LIABILITY FOR VESSEL SALVAGE COSTS
Ref: (a) MISLE Incident Management Activity 3228458
(b) COMDTINST M16790.1, Auxiliary Manual
(c) COMDTINST M16798.3E, Auxiliary Operations Policy Manual
(d) MLCPACINST M9000.6E, Naval Engineering Organization and Operating
Procedures Manual, Art. 080.C.1.b
(e) PHONECON, BMCM Tanski (D13(drms)) to MKCM Jones (MLCPAC(vr6)), 05
June 2008.
(f) PHONECON, R. Hildebrand (NPFC) to MST1 Olmstead (Sector Portland IMD), 05
June 2008.
(g) Email, LT Jowcol (D13(dl)) to MST1 Olmstead (Sector Portland IMD), 06 June
2008

1. During a recent incident in the Sector Portland AOR, it was determined that the Coast Guard cannot fund the salvage of Auxiliary vessels that sink or ground while on ordered patrols. I therefore request that you remind all operational facility owners and Auxiliary coxswains of the importance of obtaining sufficient personal insurance to cover vessel refloating and repairs.

2. On 6 June 2008, an Auxiliary vessel operating under patrol orders issued by Sector Portland struck a wing dam in the Columbia River and became lodged there, reference (a). A second Auxiliary craft and a Sector incident management team were dispatched to the scene. Due to the manner in which the vessel was hung up on the wing dam, Sector Portland became concerned about the integrity of the hull and its potential failure if it remained on the dam through several tidal cycles. Had the hull failed, it would have placed the crew at substantial risk and would probably have led to the release of all fuel aboard, in addition to the total loss of the vessel.
There were only limited options available for weight removal from the boat, and precautionary
fuel removal was deemed unsafe as it would likely have caused the vessel to pitch forward over the dam. Sector Portland therefore mobilized a response contractor capable of lifting the vessel. This is standard practice when recreational vessels ground on wing dams in the Columbia River.
Fortunately, the Auxiliary vessel refloated by itself at the next high tide.

3. The Auxiliary vessel was operating under valid, funded patrol orders issued by competent
Coast Guard authority IAW references (b) and (c) and was in communication with OPCON. At
the time of the incident, it was a “public vessel of the United States” and a “Coast Guard vessel” per 14 USC §827. Therefore, Sector Portland contacted the Thirteenth Coast Guard District Boat Manager to obtain AFC-45 funds for removal of the vessel from the wing dam. Per reference (d), “AFC-45 for boats is an ‘insurance’ fund for major casualties caused by fire, flooding, collision or grounding.” However, MLCPAC informed Sector Portland that the AFC-45 fund cannot be used for responses to Auxiliary vessel casualties, reference (e).

4. Because the hull failure posed a substantial threat of a release of more than 140 gallons of
fuel, Sector Portland opened the Oil Spill Liability Trust Fund (OSLTF) and contacted the
National Pollution Funds Center (NPFC). The NPFC informed Sector Portland that the OSLTF
should not be used for incidents involving Government vessels, and that Government funds
should be used to respond instead, reference (f). Sector Portland does not have operating (AFC-30) funds for this purpose, and as noted above, AFC-45 funds are not available for casualties involving Auxiliary vessels.

5. The most recent refloating of a small craft in the Sector Portland AOR incurred approximately $14,000 in contractor costs. That incident extended over two days, but we estimate that even a basic effort to lift a grounded boat free of an obstruction would cost
approximately $7,000 - $10,000.

6. The Thirteenth Coast Guard District legal staff has advised us that, “Title 14 USC § 830
allows the Coast Guard to pay for damages to Auxiliarists’ facilities sustained while under Coast Guard orders. However, section 830 also requires that there be a finding that the responsibility for the damages rests with the Coast Guard. In order for this determination to be made, a claims investigation will have to be done… The Auxiliarist can either pay for this out of his pocket and file a claim with the Coast Guard for reimbursement (he has up to six months to file this claim), or he can file a claim with his insurance company.” (Reference (g)).

7. Given the lack of a clear funding mechanism, Sector Portland may not be able to organize a sufficient response to casualties involving Auxiliary vessels, even when they are under orders. I therefore urge owners and operators of Auxiliary vessels make certain that they have sufficient insurance coverage to meet the costs of commercial assistance in the event of a grounding.

#
Copy: D13(dpa) – DIRAUX
D13(dr, drm)
D13(dl)
D13(dp)
MLCPAC(vr6)
NPFC
Auxiliary Division Captains, Sector Portland AOR
Group/Air Station Astoria
Group/Air Station North Bend

Question:
Given this new policy:

Choices:
I wouldn't conduct ANY patrols if this were policy.
I'd conduct far fewer patrols if this is policy
If this is policy, it wont' impact the amt/freq of patrols
If this is policy, I will increase the number of patrols I do
If this is policy, I will do as many patols as possible to make up for others who don't.

 

It sure wouldn't make me feel any better about patrolling, but since I don't have a facility, its hard to say exactly what I would do.

The CG lawyers must be talking to the AF lawyers who are well known to try to do everything they can to distance the AF from the Civil Air Patrol.

I hate to sound cynical, but I don't see this as a change of policy. I have never seen anyone but High Silver reimbursed for patrol damage, and that only for minor damage like the DCO's props. Any time the damage is major, like breaking the back of a hull when it was dropped off the lift, or major heat damage from a trash blocked cooling intake, the Coast Guard seems to find a reason to deny the claim. As long as you know this and plan for it, it doesn't affect my long range planning. That attitude may change if my insurance carrier ever excludes militay use from coverage (as many do.)

quote:

... That attitude may change if my insurance carrier ever excludes militay use from coverage (as many do.)

I have a "Recreational Boaters Policy" that would never cover anything in the event of an accident. The first thing the insurance company's attorney is going to do is point to the ops manual and say... "Why are you filing a claim with us... you were under orders in boat that is a USCG facility" (Technically not even your boat while you are on valid orders.)

Brings up all sorts of good questions like:
If groudings and sinkings aren't covered, what is?
I'm not a recreational boater, and I'm not commercial either. What am I?

Seems to me the USCG wants to have it's cake and eat it too.

They talk about how much they appreciate our assistance, but then turn their back on us when an accident happens?

For the record. I am NOT associated with the guy who ran his boat on the wing dam. I don't even know him.

The Navy likes to talk about Honor, Courage and Committment (their core values). I think this situation would appear to represent a difference between the two services.

Here you have an Auxilarist who volunteers his time and his vessel to assist the USCG. He is not compensated for his time, short of a few letters and ribbons.

He makes a bonehead mistake. Not unlike the many mistakes we see the Active Duty side make from time to time.

What is honorable? Turn your back on the man after you tell him "You ARE the Coast Guard" and train him that you will cover damage sustained during the course of normal work under orders?

Did anyone take the courage to stand up for this volunteer?

And what of Committment? The individual made a sustancial commitment to the Coast Guard. I think the USCG forgets that it isn't just a committment of time to them. It is a committment of time away from our families. It is a committment of money to maintain out boats and buy all the extra gear required to do the job. Did the Coast Guard honor it's committment to the Auxilarist?

Not having an account to pay expenses out of hardly releaves you of a legal obligation to pay. What if I ran my car in to you in town? What would your response be if I said "Hey... sorry pal. I'd like to help but I don't have an account to pay you out of. Hope you have your own insurance."

This response from the USGC is highly offensive. I can hardly feel proud to say I'm apart of such an organization.

Reading the law, it doesn't seem as if the CG is REQUIRED to pay for such damage just allows them too, so if the CG wants to write a policy saying that they won't, I suppose they are within the law. I truly have mixed feeling about it and I suppose it depends on how the accident occurs.

If it is the fault of the boat owner, then I think the CG wouldn't be totally out of line in not paying for it, especially in the case of very negligent opertations. But, if it is something truly totally accidental (the operator really isn't at fault) or the cause of another boater, then the CG should step up and reimburse the owner.

It gets a little trickier if the accident isn't the fault of the facility owner, but is the fault of someone else certified according to CG regs, to operate an Aux facility. In that case, you can't blame the facility owner if someone the CG believes is "ok" causes damage to their boat.

I do wonder how the courts might view the relationship between the laws relating to Aux facilities being public vessels and a policy denying all these claims simply because they're too expensive.

We are talking about commercial law here, and commercial law is all about allocation of risk. If I know I am at risk, I can take measures to cover it (insurance) or not take the risk. The problem is that there are a lot of facility owners who think they are covered. My insurance company covered $3,500 of overheat damage less my $500 deductible when I picked up a plastic bag on the circulation system intake while on a night patrol. They well know that 100% of my facility use is for the Coast Guard, in fact they give me a substantial premium discount for being a coxswain. I suspect that is their way of supporting the Coast Guard.

quote:

I do wonder how the courts might view the relationship between the laws relating to Aux facilities being public vessels and a policy denying all these claims simply because they're too expensive.

I don't think that you would have standing to sue them. You do have standing to withdraw your "Offer of Use."

Is this new policy for Sector Portland or is it national? I want to know before I lock n' load.

Seems to be a local thing so there is a chance that the local lawyers on going off on their own tangent.

I wonder just what sort of damage to an Auxiliary facility could ever be said to be the "responsibility" of the CG unless a Coastie actually happens to be driving the boat?

On the one hand, we can agree that costs in such situations can be high, but on the other hand the CG is getting millions and millions of dollars of free labor and low operational costs from the Auxiliary, so maybe they should plan on spending some money on Aux equipment damaged in this service. As long as the Auxie was operating within regulation and wasn't grossly negligent, they probably should pay up.

As long as the individual is operating under orders and his/her vessel is in the service of the Coast Guard at the time, well, then it only makes sense that if a legitimate accident happens that the Coast Guard steps up and helps out.

If I was in a coastal location and a SAR case was called out in less than favorable weather I might think twice about helping if this was the policy.

I hate to say it but once you get the lawyers involved this is what happens - they are too risk averse.

Just a thought. When lives are potentially at stake you may want to think twice about having your local Auxiliarist thinking twice about helping. Before I was in the Auxiliary, I was in a volunteer fire department. Guess what. My PERSONAL vehicle was covered the minute I responded to a call and drove to the station! The department wanted to make sure that we were covered under their policy in case an accident happened or our vehicles became damaged during our response to a call. Some volunteers had 4 wheel drive vehicles that they carried medical gear on and they would respond to calls if close enough to save time and lives. Their vehicles were covered as well.

The Coast Guard should really rethink this policy.

Just curious, but as this happened 2 months ago, has any of the "High Silver" of D13 AUX had any official comment or statement about this???

When I was in the AUX I was the "duty engineer" of the OPFAC I spent 100% of my AUX U/W time on. Old boat, the 318 chysters in there were getting pretty tired and the OPFACs owner and I were in serious discussion about repowering the old girl. This OPFAC AUX use was 99.999% of total use. Only time I ever heard of the owner using it for something other than AUX use was once when he took the grandkiddies out on july 4th to view the local fireworks.

In the conversations I had with him I once; just kinda offhand, said "will the Coast Guard throw ya a bone and offer up something towards this repower??", and the owner just started laughing. He said in the 26 years he had been in the AUX he never once heard of the USCG in any way, shape, or form help any AUXIE with any of the costs associated with owning or maintaining an OPFAC. He said "we're lucky if they pay us for the fuel we use".

So that kinda dovetails with what SKY said. If yer in the AUX and offer up any kind of facility or equipment for use in your official capacity and duties as an AUXIE, sounds like you best understand that as that facilities owner, you own it, and you gonna pay for it.

And if ya do get the USCG to cut ya a check for your facility; for other than your basic fuel/oil reimbursment, drop down to your knees, look up to the heavens, and say "thank you".

BUT; having said that, it really doesn't sound like there is any kind of "official" policy at all. Some US Code, some blah, blah, blah about proving the USCG is responsible for the payment, and thats it.MAYBE some DISTs have a policy, MAYBE some don't.

But it does; at least to me, lead to asking yourself one question - Just WHAT PART of T-E-A-M Coast Guard IS the AUXILIARY???????

ALOT of words being said here, there, and everywhere from the "highest of the High" in the USCG Command Echelon about what an integral, "force multiplying" part of the USCG the AUX is. But heres the black and white proof that maybe you ain't. When it comes time for the USCG to "put some money where their mouth is", seems like the USCG wants to take a rain check on that.

Ya read that initial msg and it sure sounds like a "two step, side step shuffle". And it DON'T sound like its the local command doing the "sidestep shuffle". WHY would the local command attempt to initiate any such payment or reimbursement action if they weren't forecasting a favorable outcome??? Don't make them look very good if they start something like this only to be told "NO" by further up the ladder.

Remember this is the same USCG that; in the past several years, has ****ed away millions and millions and millions of dollars making unsound, ill advised structural modifications to its exsisting cutter fleet, causing multiple cutters to be mothballed and put out of commission, and millions and millions more dollars trying to keep "in house" the management and oversight of the DEEPWATER contract.

Anyways, this ABSOLUTELY should be a topic of discussion in both the USCG and the USCGAUX. At the highest levels. And a USCGAUX wide policy needs to be formulated and initiated. What the policy should be, who knows. But there ABSOLUTELY should be a defacto "bottom line, THIS IS the policy" policy.

And EVERYBODY in the AUX that puts up any kind of facility "offer for use" should be made to have to read and sign a copy of whatever that policy is-JRC

http://forums.military.com/eve/forums/a/tpc/f/7501922942/m/8410020391001

Lets not forget this thread either. In it we discovered that not only is the USCG supplying the vessels to the AUX, the USCG is also supplying all the maint and support. It even reads the reason the USCG is replacing these small boats for AUX use is so they can standardize their logistical and maint support. Same parts, same training, working on ones no different than working on another-JRC

As long as the Auxie was operating within regulation and wasn't grossly negligent, they probably should pay up.

How is ending up on a wing dam anything but gross negligence? For that matter, remember the Aux ATON King who ran aground in 11SR not long ago - aground in the middle of a bunch of ATONs no less. Wonder who paid to refloat that boat?

It does sound like gross negligence in both cases but the policy appears to cover even non-negligence.

An easy way to sum up the policy is:

First the Auxie pays to salvage his own boat and then prays the CG reimburses him. And I don't think the USCG decides if reimbursement is do. I was long told that decision is made by DOJ and DOL.

Auxiliary people are not the only ones screwing up. From "Professional Mariner", September issue,:"An engine-room officer aboard the CG Cutter Rush has admitted that he lied to federal officials investigating the discharge of 2,000 gallons of un-treated bilge waste from the ship into Honolulu Harbor." Now that is some kind of boo boo, a whole lot worse than running aground.

Apples & Oranges Ancora

A Crime on one hand and (potentially) incompitent/reckless/negligent boat handling on the other.

You could have listed a lot of boat mishaps on CG Standard boats instead. That would at least have been Granny Smith vs Red Delicious!

quote:

Originally posted by FL51D7:
As long as the Auxie was operating within regulation and wasn't grossly negligent, they probably should pay up.

How is ending up on a wing dam anything but gross negligence? For that matter, remember the Aux ATON King who ran aground in 11SR not long ago - aground in the middle of a bunch of ATONs no less. Wonder who paid to refloat that boat?

It does sound like gross negligence in both cases but the policy appears to cover even non-negligence.

An easy way to sum up the policy is:

First the Auxie pays to salvage his own boat and then prays the CG reimburses him. And I don't think the USCG decides if reimbursement is do. I was long told that decision is made by DOJ and DOL.

Sounds like dodgy seamanship. Maybe engine failure?

Without knowing the specifics we can't really argue about any particular accident here, but the broad statements made in the original email provide more than enough grist for the mills.

I don't have any particular problem with Auxies needing to put their own money into the program in the form of uniforms and some types of equipment and being expected to pay for damage and replacement of same. But, when we're talking about major repairs I think thats a different matter.

pach brings up a good point in that the CG is providing the Aux full use of very expensive CG boats in some areas (for which the CG is definetely going to have to pay for everything at all times) while in other areas they seem to want to do everything they can to avoid spending a dime on the Aux. Of course, YMMV as always.

What worries me more than damage to an OPFAC is liability. Is coverage for liability any clearer than that for damage? Suppose in the course of a (authorized) tow the towed boat suffers damage, or one of the passengers is injured when the towed boat hits a wake or whatever. If the injured party is sue-happy, who are they going to go after? Probably the owner of the OPFAC and all the crew members as well as the Coast Guard, right? That could be a real legal muddle.

The damage thing is in its own separate part of the laws relating to the Aux and the other laws designating Aux facilities as vessels of the US don't seem to leave any wiggle room like the damage clause might seem to.

laws designating Aux facilities as vessels of the US don't seem to leave any wiggle room like the damage clause might seem to.

I'm not at home and will not be for a while so I don't have access to my manuals but double check that claim. I believe that the USCG will not accept liability if the coxswain exceeded his orders and/or the rules & regs. And if I am correct, then that is an opening big enough to drive any Auxie facility thru and into sole responsibility for any accident/injury/death.

A few interesting quotes from Title 14 USC § 826+:
=========================================

The Coast Guard MAY use our boats, aircraft etc. Keyword is MAY, rather than SHALL)
Sec. 826. Use of member's facilities
-STATUTE-
(a) Motor Boats, Yachts, Aircraft, and Radio Stations. - The Coast Guard may utilize for any purpose incident to carrying out its functions and duties as authorized by the Secretary any motorboat, yacht, aircraft, or radio station placed at its disposition for any of such purposes by any member of the Auxiliary, by any corporation, partnership, or association, or by any State or political subdivision thereof.
(b) Motor Vehicles. - The Coast Guard may utilize to carry out its functions and duties as authorized by the Secretary any motor vehicle (as defined in section 154 of title 23, United States Code) placed at its disposition by any member of the Auxiliary, by any corporation, partnership, or association, or by any State or political subdivision thereof, to tow Federal Government property.


Our vessels SHALL be considered public vessels
Sec. 827. Vessel deemed public vessel
-STATUTE-
While assigned to authorized Coast Guard duty, any motorboat or yacht shall be deemed to be a public vessel of the United States and a vessel of the Coast Guard within the meaning of sections 646 and 647 of this title and other applicable provisions of law.


Appropriations SHALL be available
Sec. 830. Availability of appropriations
-STATUTE-
(a) Appropriations of the Coast Guard shall be available for the payment of actual necessary traveling expense and subsistence, or commutation of ration allowance in lieu of subsistence, of members of the Auxiliary assigned to authorized duties and for actual necessary expenses of operation of any motorboat, yacht, aircraft, radio station, or motorized vehicle utilized under section 826(b) when assigned to Coast Guard duty, but shall not be available for the payment of compensation for personal services, incident to such operation, other than to personnel of the Coast Guard or the Reserve.
The term "actual necessary expenses of operation," as used in this section, shall include payment for fuel, oil, power, water, supplies, provisions, replacement or repair of equipment, repair of any damaged motorboat, yacht, aircraft, radio station, or motorized vehicle utilized under section 826(b) and for the constructive or actual loss of any motorboat, yacht, aircraft, radio station, or motorized vehicle utilized under section 826(b) where it is determined, under applicable regulations, that responsibility for the loss or damage necessitating such replacement or the repair of equipment, or for the damage or loss, constructive or actual, of such motorboat, yacht, aircraft, radio station, or motorized vehicle utilized under section 826(b) rests with the Coast Guard.


The Coast Guard MAY pay for accidents. Keyword is MAY, not SHALL
Sec. 821. Administration of the Coast Guard Auxiliary
-STATUTE-
...
(2) The Secretary may treat personal property of the auxiliary as property of the United States -
(A) for the purposes of -
(i) the statutes and matters referred to in paragraphs (1) through (6) of subsection (b); and (ii) section 641 of this title; and
(B) as otherwise provided in this chapter.
(3) The Secretary may reimburse the Auxiliary, and each organizational element and unit of the Auxiliary, for necessary expenses of operation, maintenance, and repair or replacement of personal property of the Auxiliary.
(4) In this subsection, the term "personal property of the Auxiliary"