Overview and Selected Testimony of The Court
(As a result
of the maritime accident featured in Fatal Forecast)
Some of the families of the deceased (Garnos, Berry, and G. Brown) filed a lawsuit charging the National Weather Service with negligence and asking $3.2 million dollars in damages. After a seven day, non-jury trial in May of 1984, U.S. District Court Judge Arthur Tauro later ruled for the plaintiffs that the federal government was liable and he awarded the families $1.2 million dollars in damages. This was the first time in the history of the U.S. the government/National Weather Service was found responsible for an inaccurate forecast. Judge Tauro said government negligence in issuing the forecast was a “substantial factor” in the deaths of the fishermen. The ruling was featured in newspapers across the country spawning articles both for and against the decision, many with simplistic but eye catching headlines such as “Weatherman is found Guilty”. The lawsuit however was quite complex and at its heart was the government’s failure to repair or replace the malfunctioning weather buoys.
The ruling, however, did not stand for long. In 1986 the U.S. First Circuit Court of Appeals reversed the judgment holding that the government was protected from liability “because the decision to issue a weather forecast without repairing the buoy was the result of the exercise of discretion within the meaning of the discretionary function exception of tort liability.” In other words the Government is protected from liability because the act of weather forecasting is a discretionary function for which the U.S. Government cannot be held liable as outlined in the Federal Tort Claims Act.
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The trial in the lower court heard by Judge Tauro, included testimony of survivors of the storm, members of the National Weather Service, and expert witnesses. It included heated exchanges between lawyers, witnesses and the judge.
The case or civil action was first filed in May of 1983 by the Plaintiffs attorney Michael Latti, who laid out the statement of facts as to why the case should be heard. Latti thought he could draw on another case—Indian Towing vs. U.S., 1955-- that had certain similarities to the Honour Brown suit. In 1955 Indian Towing Company, which operated a barge, sued the government because its barge ran aground due to the Coast Guard’s failure to maintain a lighthouse. The Supreme Court ruled that although the Government had no obligation to provide a lighthouse, once a lighthouse was in service mariners would come to rely on its guidance and so the government then must keep it in good working order. Latti saw that the failure of the National Weather Service to maintain the weather buoys was comparable to the Indian Towing situation. He also believed investigation and findings of his expert witness would show that had the Georges Bank weather buoy been functioning properly, the NWS would have known late Friday night that the storm was likely to track more to the west and would in fact slam into Georges Bank.
The U.S. was represented by David Hutchinson, an attorney with the U.S. Justice Department, and he was equally confident that even if the weather buoy’s wind sensor was working, the NWS would not have been able to precisely predict the path of the storm. In his defense arguments he pointed out that at 11pm on Friday the lobster boats were near the weather buoy and the actual wind conditions were exactly as forecast. More importantly, he stated, weather forecasts simply cannot be relied upon 100%, and fishing boat captains know this.
One of the biggest surprises in the trial, was that the NWS and their expert witness, changed their original meteorological analysis and explanation for the storm’s intensity and path. Originally, in the Coast Guard Inquiry, the NWS stated the storm did not behave as predicted because it veered much farther to the west than forecast. However during the trial, members of the NWS and defense expert witness Fredrick Sanders, meteorologist and retired professor at the Massachusetts Institute of Technology, surprised the judge and the plaintiff attorney with a new explanation. Sanders said there was a second low pressure system over Georges Bank in addition to the one that was coming up from the Carolina coast and heading to the region known as South of Nova Scotia. The low pressure system over Georges Bank absorbed the Carolina low, creating one huge storm which exploded into a “weather bomb.” There was no technology, Sanders explained, including buoys that could have predicted this explosion.
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A Day by Day overview of the Trial
During the first day of the trial Mr. Latti had Peter Brown on the stand and he tried to show that if Peter had heard a forecast calling for storm warnings at 11pm on Friday night he would have turned back. Mr. Latti made it clear that a crucial aspect of his case was to show that had the Georges Bank buoy been functioning, the weather forecasters would have known that the storm would likely hit Georges Bank as well as South of Nova Scotia.
The defense on the other hand stressed that mariners know that a forecast is nothing more than a prediction and individual captains have to make their own judgments. Further, because Georges Bank lies adjacent to the South of Nova Scotia area, the defense implied that since bad weather was predicted for South of Nova Scotia the captains at George Bank should have taken this into account. Peter Brown, however, replied that he makes his decisions based on the forecasts for where he is going to fish, which is Georges Bank not South of Nova Scotia. The defense also illustrated that the forecast announcements never say what tools—including buoys--were used in formulating the forecast, implying the NWS had no obligation to mention the faulty buoy.
The focus of the second day of the trial concerned the testimony of Rodney Winslow, the chief meteorologist at the National Weather Service at Logan Airport. Unlike the first day, the discussions became testy, particularly between Judge Tauro and Mr. Hutchinson, as the following exchange indicates:
Question from Mr. Latti to Mr. Winslow: Did the marine Focal Point Meteorologist in November of 1980 have overall responsibility for the marine division?
Mr. Hutchinson: I’m going to object. I don’t think there was any marine division mentioned. Unless there could be some groundwork.
The Court: Excuse me. If you have an objection, just say “Objection.”
Mr. Hutchinson: Yes, your Honor. I have an objection.
The Court: Overruled. If I want to hear the reason, I will ask for it. I don’t like anybody to address the Court without permission in front of the witness.
Highlights of the third day of testimony included questioning of the plaintiff’s expert witness William Haggard, a consulting meteorologist who had worked for both the Navy and the National Oceanic and Atmospheric Administration (NOAA) in marine and aviation forecasting. Haggard concluded that had the Georges Bank weather buoy been working properly, forecasters would have known the storm was heading toward Georges Bank before it actually arrived.
Mr. Latti: Now do you have an opinion also based on your experience and a review of your data and charts that you have made with respect to whether or not a storm warning should have been issued at 10:39 pm on November 21, 1980?
Mr. Haggard: I do.
Mr. Latti: What is your opinion?
Mr. Haggard: My opinion is that a storm warning was warranted at the 10:39 forecast.
Mr. Latti: Would you tell us your reason’s please?
Mr. Haggard: At that time the low center was well developed, was rapidly deepening and was moving into an area in which dramatic development is often evident. Pressure falls were extremely large. There was warm air advection to the east of it. There was cold air advection to the west of it.
(Later Mr. Haggard explained that the buoys were so crucial to forecasting that is why they reported hourly when other data was at six hour intervals.)
David Feit, NWS meteorologist stationed at the Logan Airport office, was on the hot seat for much of Day 4. Mr. Latti reminded Mr. Feit of his testimony during the Coast Guard Inquiry and asked him to confirm that he did put out a storm warning for South of Nova Scotia. When Mr. Feit responded that he didn’t recall putting out the warning, Mr. Latti reads Mr. Feit’s earlier testimony to the Coast Guard as follows: “I can’t believe that this was in any way a sneak storm on us. In other words, we saw a developing storm, and in fact, the prediction of an intensifying storm was first put out on Friday morning and carried in every forecast after that.”
Mr. Feit: I did not personally. I’m not sure whether one had been put out. I don’t know.
Mr. Latti: When I say, “you,” I mean the National Weather Service.
Mr. Feit: I don’t think any actual warning was put out until --- well, I guess it was put out on the 21st, yes. That’s right. Now I remember.
Mr. Latti: And that was for southern Nova Scotia, correct?
Mr. Feit: Yes.
Mr. Latti: But none for Georges Bank, correct?
Mr. Feit: That’s correct.
Mr. Latti: And that’s the very storm that we were talking about that later hit Georges Bank, is it not?
Mr. Feit: Well, the storm –
Mr. Latti: Just answer yes or no
Mr. Feit: No.
Mr. Latti: Was it the storm that developed from the same storm that you tracked and said would go to Nova Scotia? I say, “you”, I mean the National Weather Service. In other words was it the same developing low?
Mr. Feit: No, it was not.
Mr. Latti: Was it a combination of lows that resulted finally in that storm on Georges Bank?
Mr. Feit: I suppose that you would characterize it as a combination, yes.
Mr. Latti: And those lows that resulted finally in the storm at Georges Bank, were the lows that you were referring to for the storm of southern Nova Scotia, was it not?
Mr. Feit: No, it wasn’t
Mr. Latti: Would you tell us then, which ones you were referring to?
Mr. Feit: The storm that developed over Georges Bank was a separate entity. The storm that we were tracking, in fact, disappeared, and a separate low formed right on the Bank. Then that took off to the east.
Mr. Latti: So you’re saying it had nothing to do with the lows that were found around Cape Hatteras, the storm that hit Georges Bank? Is that your testimony?
Mr. Feit: My testimony is you could not identify a low in Hatteras that went up to Georges Bank.
Mr. Latti: Wasn’t the inaccuracies of the forecast that the storm that the National Weather Service predicted was that it went too far east?
Mr. Feit: That’s very complicated. The storm ---
Mr. Latti: Didn’t you say that in the Coast Guard report that was the basic inaccuracy of the forecast, that it was too far east?
Mr. Feit: the guidance indicated that there would be a low pressure ---
THE COURT: Did you say that, is the question?
Mr. Feit: Yes.
Mr. Latti: Now you want to change that testimony
Mr. Feit: Yes. That was probably a bad analysis as to what happened.
Mr. Latti: You were under oath at that time?
Mr. Feit: Yes.
Mr. Latti: And you’re under oath now?
Mr. Feit: Yes, that’s true.
Mr. Latti: What do you want to change it to now?
Mr. Feit: All I’m saying is that upon careful analysis of this, you find that the storm , in fact, that we were tracking and thought we were tracking at the time, in fact disappeared, and another storm formed on the Bank, and then moved off to the east.
What we thought was going to happen, and did happen, was that the storm at Hatteras had tracked on up to the east, but in fact, that didn’t happen when we looked back on it.
Mr. Latti: Wasn’t the very reason that you failed to track the storm properly was that you underestimated to some degree, the winds, and that it moved over?
Mr. Feit: No. The winds didn’t have anything to do with tracking the storm.
THE COURT: Let me ask you something: Did you tell the Coast Guard that the low-pressure area that you’d been tracking disappeared?
Mr. Feit: No, sir. At that time---
THE COURT: Your answer is, no, you didn’t?
Mr. Feit: Did not.
THE COURT: When is the first time that you told anybody that the storm you’d been tracking disappeared?
Mr. Feit: I believe it was after we had studied this thing, we had written a report.
THE COURT: Just think of my question. When?
Mr. Feit: I would say it was probably when we finished our investigation, which was sometime in December or January. I don’t have the exact date.
THE COURT: After you talked to the Coast Guard?
Mr. Feit: Yes, sir.
THE COURT: Whom did you tell that to?
Mr. Feit: We wrote a report to the Weather Service and sent it down to them.
THE COURT: You wrote a report which said that the first storm disappeared?
Mr. Feit: Basically. I don’t recall the details, but it was something to do –
THE COURT: Let me just tell you something. This is very serious business, you understand, and I’m asking you questions which you better think about before you answer. Don’t think out loud; think of your answer.
I asked you when it was that your first told anybody in the whole world that the low-pressure area that you’d been tracking, in quotes, disappeared, and that the Georges Bank one was a new one that just appeared.
Mr. Feit: I believe it was in December or January.
THE COURT: And you said you wrote a report to that effect?
Mr. Feit: Yes, sir.
THE COURT: Where is the report? I want to see it.
Mr. Hutchinson: As far as I know, it’s been given to you.
Mr. Latti: I do not have the report. I certainly do not.
THE COURT: I want you to understand that I’m hearing this case jury waived, and that it’s very, very important for me to know exactly what the facts were. This is not combat by ambush between counsel. I’m determined to find out exactly what happened.
If he says he wrote a report that said that it disappeared, then I want to see the report. If he did not write such a report, then I’ll deal with that situation.
After Judge Tauro further questioned the witness he called counsel to the bench:
THE COURT: I just want everybody to understand and I’m saying this as nicely as I possibly can – no ad hominem intended, but you have never tried a case before me. I try to give counsel a lot of leeway. In a jury-waived case, I think I’m entitled to ask more questions than I might in front of a jury because I want to make sure I get all of the facts when I make a decision.
Over and above that, one thing I am very strict about, if I get the sense that someone is changing testimony, that there is an effort to circle the wagons and that the truth is being tampered with in any way, my practice is to just refer it to the U.S. Attorney’s Office.
I’m not suggesting that’s happening here, but this witness’s testimony is remarkably different, so far, from what it was under oath before the Coast Guard.
For him to now come up with the idea that the storm disappeared, for the first time today, and if he tells me that he said in January and he really didn’t say that in January, then I’m going to get a little suspicious about his credibility. I’m alerting you to that. This is not a ball game.
Mr. Hutchinson: I appreciate that.
THE COURT: If I get the idea that somebody is committing perjury in my courtroom, the consequence would be far more serious than anything you are trying here today. I want to advise you. I’m very strict about that.
Mr. Hutchinson later finds a copy of the report and says that he thought Mr. Latti and the judge had seen it, but apparently it was an oversight. Judge Tauro asks where in the report does it say the storm disappeared, and Mr. Hutchinson responds:
Mr. Hutchinson: Your Honor, there is language – I would put my finger on it – the word “disappear” is not used. It says, “It appears a new low.”
THE COURT: It’s talking about the same storm.
Mr. Hutchinson: “It now appears a new low formed.”
Judge Tauro asks Mr. Feit if he can find the word “disappear” in the report, and Mr. Feit answers that he cannot, but he reiterates the position that “the storm that was on the Bank and then moved east, was different storm than was down in Cape Hatteras.”
Later, Mr. Latti asks Mr. Feit if the reason for the lack of a proper forecast was because of lack of buoy data. Mr. Feit answers “no”. Then Mr. Latti reads from a interview Mr. Feit granted with Soundings magazine which said “Feit said that the meteorologists were hampered by the slow receipt of weather, in particular, a weather buoy in the Georges Bank area was not reporting wind speeds.”
When Mr. Hutchinson questioned Mr. Feit, he attempted to clarify what Mr. Feit meant when he said the low “disappeared.”
Mr. Hutchinson: Sir, you talked about a low being absorbed in your testimony there.
Mr. Feit: Yes
Mr. Hutchinson: That was the low that was absorbed, the low being absorbed was the one from – that had been down off South Carolina: is that right?
Mr. Feit: That’s correct.
Mr. Hutchinson: Sir, is the absorption of that low, is that what you indicated – you wanted to convey in this courtroom when you used the term “disappearance”?
Mr. Feit: That’s it, yes, sir.
Mr. Hutchinson: In other words, the absorbing, meaning that the low was no longer a definable one but had been absorbed with a developing low that was in the Georges Bank area?
Mr. Feit: Yes, sir. It lost its identity. If could no longer be identified as a low-pressure system anymore.
Mr. Hutchinson later wrapped up questioning of Mr. Feit by pointing out that meteorologists have never told mariners what tools or data they relied on to make the forecast.
Much of day 5 of the trial centered around the questioning of Soundings Magazine reporter Stanley Fisher who had interviewed Mr. Feit for the magazine. Mr. Fisher had written, “According to David Feit, a meteorologist with the Boston Office, the wind-reading equipment on the George’s Bank buoy had been inoperative since early September, when it was struck by a ship. The Weather Service thus was deprived of data which would have been significant in predicting the storm.”
During day 5 of the trial, Mr. Latti had Mr. Fisher read the passage just quoted then Mr. Latti followed it up with this question.
Mr. Latti: And then a quote of Mr. Feit now in this article is what?
Mr. Fisher: (Reading.) “ ‘Those buoys are very valuable to us’, Feit said. ‘They are a source of information we count on.’ “
Mr. Latti: No further questions.
In the cross examination of the witness by Mr. Hutchinson, a line from the magazine article is debated. The line in question was “In possibly four to six hours they might have bettered their forecast.” Mr. Hutchinson then asked Mr. Fisher the following:
Mr. Hutchinson: When you say “In possibly four to six hours they might have bettered their forecast,” he (Mr. Feit) used the word “might”; didn’t he?
Mr. Fisher: Yes
Mr. Hutchinson: In other words, he was not saying that having that weather information from the buoy would in fact have allowed the Weather Service to forecast that storm that occurred on Saturday any quicker?
Mr. Fisher: He did not say that in specifics. He implied it, however, I believe.
Mr. Hutchinson: He said it might occur?
Mr. Fisher: Yes
Mr. Hutchinson: He might have been able to?
Mr. Fisher: Yes.
Mr. Hutchinson: That is like the language of could, possibly could have?
Mr. Fisher: Yes.
Mr. Hutchinson: It was not in fact? And your understanding was, in fact, that he was not saying that in fact it would have been?
THE COURT: You know you have gone over this ten times. He says “implied”. You do not have to argue the case in cross-examination.
Mr. Hutchinson: Okay. That is all I have, your Honor.
Mr. Harlon Saylor, an expert witness for the defense, was on the stand during day 6. A deputy director of the National Meteorological Center in Suitland, Maryland, Mr. Saylor’s opinion was that malfunctioning weather buoy had no impact on the performance of the prediction of the Georges Bank storm. We pick up the questioning with Mr. Hutchinson asking Mr. Saylor why he has reached that opinion.
Mr. Saylor: There are a number of reasons. One is that the observation of wind speed and direction from the Georges Bank buoy is redundant, in the sense that it is only about 40 nautical miles from the Nantucket Light Ship (which provides weather related data); and the resolution of the LFM numerical forecast model is such that in the analysis of the surface wind field, that both the Nantucket Light wind and buoy wind, one or the other, would be redundant. In other words, if you have one of those winds, you would get what information is necessary to analyze the surface pressure field and the wind field.
Mr. Saylor concluded by saying “The current models are not capable of predicting this type of storm.” In essence, Mr. Saylor’s testimony was the exact opposite of the plaintiff’s expert witness, Mr. Haggard who was questioned during day 3 of the trial.
On the last day of the Defense produced expert witness meteorologist Frederick Sanders, a retired professor at MIT, whose analysis showed that “within the long trough of low pressure which contained the center which we had been tracking, there now appeared at 7pm on the 21st to be two centers, the old center, which I will refer to as the southern center, near 35 north, 72 west, and a new center near 40 north, 70 west. Six hours later only a single well defined center was in evidence. That was the northern center which intensified greatly. This is by one a.m. on the 22nd. The remnant of the southern center which had been swept into and around the periphery of this very vigorous northern circulation could be weakly identified in my working charts somewhere near 36 north, 66 west. But at one p.m. on the 22nd there was single will defined pressure minimum up hear at about 40 and half north and 67 west. At seven a.m. on the 22nd the single center developing further was seen at 41 north, 65 west and then at one o’clock, one p.m., the center, which was abundantly confirmed in this instance by visual satellite imagery, was seen slightly south of 41 north and about 63 and one half degrees.”
In the cross examination of Mr. Sanders by Mr. Latti, the two men spar with the relative importance of the weather buoy and whether or not the NWS owed it to the fishermen to alert them that the forecast was made without the benefit of the Georges Bank buoy wind speed and direction. Mr. Sanders maintained that it would have been of little or no help in the forecast and that its operational capability would have been of little importance, in this particular situation, the fishermen.
Mr. Hutchinson repeatedly objects to the questioning and he is repeatedly overruled by the Judge. Finally Judge Tauro calls Mr. Hutchinson to the bench.
THE COURT: “You don’t want me to think that you are objecting once in a while just to alert the witness to the fact that you don’t like the question? Always be careful of that as a trial lawyer.”
Mr. Hutchinson: “I understand that. (I’ve) Been trying cases for 14 years.
THE COURT: I know. You can be trying them as long as you want. When you are trying a case jury waive, your credibility is on the line with the judge too.
Mr. Latti was unable to shake Mr. Sanders believe that the weather buoy was not the reason for the inaccurate forecast.
Judge Tauro’s Decision
Six months after the last witness had spoken, Judge Tauro found the National Weather Service negligent and that their failure to either maintain the buoy or alert fishermen to its malfunction directly contributed to the death of the four fishermen.
Judge Tauro’s decision rested on his assertion that the plaintiff was correct when they outlined how fishermen had relied on the accuracy of the NWS forecast, and that the NWS should have fixed the broken Georges Bank buoy because its information was critical to the forecast, or at the very least they should have given the fishermen warning that the buoy was broken and their forecasts were made without the aid of this important tool.
Selected Highlights of Judge Tauro’s Decision
(Section III “The Forecast”, page 7 of West Law publication):
(paragraph 1) “Expert testimony concerning the accuracy of the subject forecast was offered by both plaintiffs and the defendant. William H. Haggard, a consulting meteorologist, appeared for the plaintiff. The defendant’s expert was Fredrick Sanders, also a meteorologist. Although the court deemed both witnesses qualified to render opinions on a variety of relevant issues, it found the testimony of Mr. Haggard more persuasive. The court, therefore, accepts and adopts his opinion as to the scenario of relevant events and rejects those of Mr. Sanders that may be in conflict.”
(paragraph 4) “Haggard’s opionion was that a storm warning should have been issued at 10:39 p.m. on November 21, 1980 and that, if the NWS had the wind speed and direction information from the Georges Bank buoy, a timely forecast could have been issued that would have accurately tracked both the intensity and location of the storm.”
(Section IV, Discussion, Duty, page 8 & 9 of West Law publication):
(paragraph 8) “Given that the defendant undertook to provide a service that was necessary to the protection of plaintiffs, and that plaintiffs relied on that service, this court finds that defendant owed plaintiffs a duty to take reasonable care in maintaining its weather observation and prediction system. The duty recognized here is a limited one, owed to an identifiable group of mariners that place special reliance on the accuracy of the NWS weather forecast.”
(paragraph 12) “Consistent with the holding in Indian Towing, plaintiffs here do not argue that the NOAA had an obligation to provide a weather forecasting system, or that there was a duty to have a data buoy on Georges Bank. Rather, plaintiff’s position is that once the NOAA undertook to provide a forecasting system, and then induced reliance on that system, it was obligated to use due care in seeing to the system’s proper maintenance or, at least, to give warning that the system was not functioning correctly.”
(Section IV, Discussion, Causation, page 10 of West Law publication):
(paragraph 20) “Two areas of evidence are of particular interest. The first is the expert testimony of Mr. Haggard that the NWS forecast was significantly incorrect as of 7 a.m. on November 21, 1980, that a storm warning should have been issued no later than 10:39 p.m. that day, and that the lack of buoy data from Georges Bank was critical to the NWS error. The second is the testimony of Captain (Peter) Brown that if he had received a proper storm warning by 11 p.m. on November 21, 1980 he would have turned around because of the danger, and would have been able to return safely to port. The court considers the testimony of both witnesses to be credible and persuasive.”
Fishing Community Opinions
The court case split the fishing community in terms of whether or not the government was liable. For example Grant Moore thought that if the plaintiffs won the case it would set a dangerous precedent. Ernie Hazard on the other hand says “The forecast encouraged us to go – the Weather Service knows we make decisions to go or not based on what they say, and for them not to have one of their important tools working and not tell us is negligence.” And Sarge points out that at least today, probably as a result of the court case, the weather reports always mention if there is no buoy data included in the report.
The Los Angeles Times wrote an excellent piece about Tauro’s ruling, saying “The matter of Honour Brown et al. vs. United States of America is a singular portrait of the way in which modern technology can affect those as tradition-bound as lobstermen, empowering and enslaving them at the same time. For a according to judge Tauro’s ruling, the lobstermen were doomed not by fate or nature’s caprice or their own mistakes but by the trust they placed in a broken wind sensor atop a solitary buoy, bobbing on the open sea 100 miles from shore.”
This writer’s personal opinion is that judge Tauro was correct. While I don’t condone holding the NWS liable for poor forecasts, I do think they had an obligation to maintain the weather buoys. Fishermen had grown dependent on improved weather forecasts, and much of their confidence in the forecasts was because of the additional data supplied by the weather buoys. Equally important, the National Weather Service should have warned the fishermen that the forecasts were based on incomplete data because the buoys were either malfunctioning or off-line. When Peter Brown on the Sea Fever and Billy Garnos on the Fair Wind made their decisions to set out on Friday November 21 they knew nothing about a faulty wind sensor on the Georges Bank buoy. We will never know if the 11 p.m. forecast on Friday might have been different with a completely operational buoy, but had it issued a warning for Georges Bank there was still time for the boats to head back toward port. And nothing will change the fact that four good men died in one of the worst storms to ever hit the fishing grounds of Georges Bank.