WINTER HARBOR, Maine — A local lobsterman might not have to face criminal charges over his role in a June 2010 boat collision that killed another man, but he is not free and clear of legal claims that have emerged in the accident’s wake.
Phil Torrey, 38, is being sued by a local woman over the crash nearly two years ago in Frenchman Bay that took her husband’s life. In addition, the Coast Guard is pursuing a $30,000 civil penalty against Torrey for his role in the fatal collision.
Frank “Frankie” Jordan, 71, died when his lobster boat, Linda Diane, was struck on June 30, 2010, by Torrey’s vessel, Master Simon, near the tip of the Schoodic Peninsula. Torrey was at the helm of his boat as it was headed back to Winter Harbor and later acknowledged to investigators that he was sitting down eating his lunch and not keeping a lookout for where his boat was headed when the accident occurred.
The last day of June in 2010 was clear and sunny. Torrey and his sternman, David Leighton, had been out hauling traps near Mount Desert Rock and were on their way back to Winter Harbor in the early afternoon. Torrey said he had seen Jordan’s boat more than a mile away in the distance, but lost track of it and did not realize the boats were bearing down on each other. Jordan and his sternman, Russell Stanley, had just set traps off Turtle Island and were headed east toward Pond Island to set more.
But before either boat reached its destination, Master Simon slammed into the starboard side of Linda Diane, basically cutting it in two. Jordan’s boat, a 34-foot fiberglass vessel built in 1970, quickly became submerged and then sank in approximately 85 feet of water.
Stanley, on his first day of work as Jordan’s sternman, leaped from the sinking Linda Diane to the Master Simon. Jordan, however, went in the water and was unresponsive when the other fishermen pulled him out a few minutes later. Jordan died as a result of drowning due to head trauma, according to the Maine medical examiner’s office. Leighton, Stanley and Torrey were not hurt.
Torrey has said that, because of the positions of the two boats in relation to one another, Jordan’s boat was supposed to give way to his, not the other way around.
According to Torrey’s attorney, William Welte of Camden, maritime law dictates which boat has the primary responsibility of avoiding the other when two boats are on a collision course. Torrey was on the starboard side of Jordan’s boat, the defense attorney said Monday, which means that Jordan should have taken evasive action.
“The Jordan vessel was the burdened vessel,” Welte said. “It should have given way.”
Welte said he plans to argue this point as the primary defense for Torrey in both the Coast Guard matter and in the lawsuit filed by Jordan’s widow, Linda Jordan.
Lt. Mason Wilcox, chief of the investigative division of the U.S. Coast Guard Sector Northern New England, confirmed last week that the agency is seeking a $30,000 civil penalty against Torrey, which is the maximum allowed by law.
Wilcox declined to mention Torrey by name but said the case against Torrey is still pending. Torrey will have the opportunity to contest the penalty at a Coast Guard hearing, he said, but he did not know where or when the hearing will be held.
“It’s a long process,” Wilcox said. “We try to work with people. We don’t try to put them on the streets.”
According to a copy of the Coast Guard Investigative Service report on the incident, the Coast Guard wanted to file criminal charges against Torrey in connection with the fatal collision. The Bangor Daily News recently obtained copies of the investigative reports after filing a Freedom of Information Act request with the Coast Guard last year.
Torrey, the investigators wrote in the report, should “receive a maximum civil penalty of $30,000 for operating a commercial vessel in a negligent manner that endangers life, limb or the property of a person.”
Investigators also indicated in the report that they believed criminal charges against Torrey were warranted.
“Evidence of criminal liability on the part of Torrey was found,” the report indicates. “It is recommended that the case be referred to the U.S. Attorney General for criminal prosecution.”
Federal prosecutors overruled the investigators, however, and decided not to file criminal charges against Torrey.
In a prepared statement released Tuesday, the top federal prosecutor in Maine said the U.S. attorney’s office did its due diligence in considering whether to charge Torrey.
“This office conducted a careful analysis of the facts and circumstances of the collision between the Master Simon and the Linda Diane,” U.S. Attorney Thomas Delahanty said. “In order to commence a federal prosecution, we must conclude a person’s conduct constitutes a federal offense and [that] the admissible evidence will probably be sufficient to obtain and sustain a conviction on proof beyond a reasonable doubt.”
As a result of its FOIA request, the Bangor Daily News received more than 40 pages of photocopied narratives, statements, emails, maps, photos and other information from the Coast Guard about the incident and investigation.
In the documents, investigators wrote that Torrey and Leighton had finished hauling traps offshore and had been traveling for more than an hour back to Winter Harbor when the accident occurred. Leighton went down to the forward cabin to nap during the trip while Torrey sat down and ate his lunch of a sandwich and potato chips. Master Simon was traveling at about 20 knots, or 23 mph, and its bow was riding high in the water when it rammed Linda Diane.
Torrey, the report indicates, “admitted he had not maintained a proper lookout for about 15 minutes prior to the collision.” In addition, Torrey told investigators that he “agreed, had he or Jordan been maintaining a proper lookout, the collision would not have occurred.”
The documents indicate Jordan may have seen Torrey’s boat bearing down on him immediately before impact. Stanley, Jordan’s sternman, told investigators that he was standing in the stern facing away from the approaching boat when he suddenly felt the Linda Diane slow down and the boat’s turbo chargers whistle as if the engine had been thrown into reverse. The Master Simon struck the boat as Stanley turned to see what was happening.
Jordan, who was hard of hearing and did not wear hearing aids out on the water, died before anyone could confirm whether he had tried to avoid the collision at the last second.
In the civil complaint Jordan’s widow filed earlier this month in Hancock County Superior Court, Linda Jordan alleges that Torrey was negligent in the operation of Master Simon at the time of the collision. As a result of Torrey’s alleged negligence, Jordan died, his boat was destroyed, his family incurred funeral and burial expenses and Linda Jordan has suffered emotional distress from the loss of her husband’s companionship, according to the complaint. The lawsuit seeks unspecified monetary damages against Torrey.
In a statement she provided to Coast Guard investigators, Linda Jordan wrote that Torrey came to her house the night of the collision and said he was “terribly sorry” and took full responsibility for what happened.
“He kept apologizing for how sorry he was [for] not standing,” Linda Jordan wrote. “Was he negligent? Yes I feel he was. But purposefully negligent, no.”
She added in the statement that everyone makes bad decisions and hopes they won’t be deadly ones.
“When this happens it changes lives forever,” she wrote. “Mine is forever [changed], but I refused to allow any bitterness towards a man who is already punishing himself more than I ever could. I chose to forgive him and love him through this time.”
She added that her husband had undergone recent medical procedures at the time of the accident and was on medication, but that he was a cautious man who appeared to be in relatively good health. Frankie Jordan had a pacemaker installed in April 2009 because of a slow pulse and a procedure on his esophagus two months before the collision but had been cleared by his doctors to resume fishing, she said.
Contacted by phone on Monday, Jordan said the lawsuit does not represent a change of heart on her part. She said she believes that Torrey was not intentionally negligent and that she forgives him.
Jordan, 64, said she is suing Torrey because his insurance company has refused to pay any money to Jordan’s survivors and the only way to get it to do so is to file a lawsuit against him.
“It has nothing to do with Phil,” she said. “I love the kid very much. I don’t want to do anything to hurt him.”
Still, she said, Frankie’s death has been hard on her and her family, including her husband’s sons and grandchildren. She said her husband’s insurance company paid the family only enough to pay off the debt on the boat. Jordan had the boat back for only a week and a half after getting a new $9,000 engine installed when he died, she said.
“He died doing what he loved,” she said. “I know he’s in a better place.”
Jordan said she has her own medical expenses and frequently depended on her husband. She gets some beneficiary income from Social Security and other sources, she added, but times still have been tough. She said she is selling the house she shared with Jordan and moving to Ellsworth to be closer to her son.
“If it wasn’t for the Lord, I wouldn’t be able to function,” she said. “I have very good support through the church.”
Jordan said she attends The Rock church in Sullivan, where her husband also was an active member until he died.
Torrey, reached recently by phone, said he is contesting the civil penalty sought by the Coast Guard and the lawsuit filed by Linda Jordan. A $30,000 fine, he said, would have a significant impact on his income.
Torrey has said he wasn’t especially close to Frankie Jordan, but that he was friendly with the older man. The Jordans and Torreys had intermarried at one point, he has said, and once when Jordan was sick and couldn’t fish, Torrey and other local fishermen went out and brought in Jordan’s traps for the winter.
As for the claim filed by Linda Jordan, Torrey said he spoke with her several times in the months after the collision and was trying to get his insurance company to pay her, but the communication stopped when she hired an attorney. He added that on several occasions he was advised to file a preemptive counterclaim against Jordan’s family, but he didn’t want to.
“I would go to jail before I do that in this town,” Torrey said Monday.
He said he had been warned by others who thought he would get sued, but nonetheless he was caught off guard when he was notified on March 23 that Jordan had filed a civil complaint in Hancock County Superior Court.
“You tend to think it’s going to go away, and I didn’t hear anything for months,” Torrey said. “I just put it in God’s hands. Hopefully, it will work out for the best.”
Follow BDN reporter Bill Trotter on Twitter at @billtrotter.
The maritime attorney certainly knows that the “give way” vessel is burdened to alter course or speed. However, once the “stand on” vessel realizes that the actions of the give way vessel are insifficient to avoid collision, it is the stand on vessels duty to alter course or speed to avoid collision. Any MMA 2nd year decky knows that. After 17 years sailing ship’s all over the world, I have come to realize that fisherman everywhere don’t believe the Nav Rules apply to them.
You are absolutely correct. While Torrey’s boat was the stand-on vessel, he was still obligated to keep watch, especially if he knew another vessel was in the area and give way if necessary to avoid a collision. I grew up in Maine, but now live in Southern California and sail to Catalina frequently. Fishing vessels here don’t bother with the Nav Rules either. Instead, they clearly just engage the autohelm and never give way even when they’re supposed to. I think there’s a stupid belief that since they’re a working vessel, the should automatically have ROW regardless of bearing. You’ll never collide with another vessel if you aim for its stern.
Re your last statement about aiming for the stern: not so in an overtaking situtation or a crossing situation with CBDR.
Bill, remember in extremis which Capt. Brown taught us so well. It obviously applies here. I know most Maine Lobstermen spend their lives on the water, they know the rules, and most abide by them. There are always bad apples in the bunch…deep sea shipping has their share.
Capt Brown will forever be a legend, and he is sorely missed.
as do sailboat captains http://fishermensvoice.com/archives/201203BackThen.html
What about his statement that he had not maintained a proper lookout for about 15 minutes prior to the collision? That seems like a very long time for the speed he was going. For example, if 2 boats are approaching each other head on both going 20mph they would be 10 miles apart 15 minutes before they collide. Does maritime law allow him to go that long without checking for other traffic? I’m not a sailor but the math seems simple enough. You tell me how far I can see and the speeds. Then I can calculate how often I need to scan the sea around me.
Again, you are only reading what is printed…. You dont haul traps at that speed, he had finished hauling, throttled up, took his oil pant off, sat down in his CAPTAINS CHAIR aka Drivers seat and reached for the lunch in his lunch box. You make it sound like he was full speed ahead and on the floor in the back having a picnic. There were only TWO boats out that day in the vast open ocean, where many times there are well more then 30. Mr Torrey’s boat was travelling with the shore to his right and had right of way to the left. So by your calculation, the boat without right of way was traveling at 20MPH (They use Knots on the water) directly towards the shore in the path of a boat heading to port?? There is no known dock or port on that shoreline, so how in any fashion is this Mr Torrey’s Negligence?? Since he had right of way to the left and Mr Jordan did not, and technically wouldve been travelling an imprudent speed heading driectly into shore, endangering everyone on his own vessel…
What difference does it make if we use knots, mph, feet per second as long as the math is correct? The calculation was an example. If the other boat was not moving they would be only 5 miles apart before they collide. I think the point I make is very obvious. You have to scan your surroundings frequently enough for the speed you are traveling at. The same basic principle applies to walking or jogging.
Did I understand the article correctly that NO ONE was WATCHING where the boat was going,
b/c the boat’s owner was having lunch? If that is a correct statement, doesn’t that become a major issue?
Of course it is. There is never an excuse for a helmsman to not closely monitor the progress of his vessel. The other vessel could have just as easily been a kayak or other small boat.
Which if it was, it’s as much if not more their responsibility to heed the right of way as in this case… I dont pull out in front of a loaded 18 wheeler with a bicycle and expect them to stop or not run over me when they have right of way… Then blame it on the fact, well he was on his CB…
WOW,
You really don’t know that a vessel propelled by oars has the right of way over a motor vessel? Please tell me that you don’t hold a USCG license. NO VESSEL has the right of way IN EXTREMIS, when you realize that collision is imminent you Must take action to avoid collision regardless if you are the stand on vessel or not.
Several of us commenting on this story are not blow boaters, but licensed professional mariners. We eat, sleep, work at sea for 6 months or more a year, 12 hrs a day at the helm, 7 days a week. We don’t get to go home to momma every night after the traps are checked, we live at sea, and we dam* sure follow the Nav Rules.
Please read and understand the Nav Rules, because if you operate your vessel the way you have alluded to in your posts then you are a danger to yourself and those around you.
http://www.boatingsafety.com/safety_resources/rules.pdf
He took his oil pants off after he was done hauling sat down in his CAPTAINS CHAIR reached for his lunch to eat as he headed back in and thats when the collision occured… He wasnt below deck or at Mcdonalds, he is on the Ocean,He Was in his captains seat reaching for his luch heading in to port, this is common place. The people commenting here either are unfamiliar with Lobstering or simply have NO IDEA what they are talking about. This is not like driving a car down the road, The closest that most people here could relate to is waterskiing where the operator spends as much time looking behind them as in front of them… Besides the fact where is the fault of the other fisherman??? Who was doing the equivalent of running a stop sign?? Isnt that a major issue here?? Where is his responsibility, if Phil was in the wrong for being where he was suppose to be… Then where does Mr Jordan stand in his negligence??? So no Small Mason, you didnt understand correctly. Watch deadliest catch, when the captains sit in their Captains chairs and eat lunch or chew on their crew, that is where Phil was eating his lunch, not below deck like your making it out.
Fred, the ending of your statement is entirely unnecessary … I was not ‘making it out’ that the captain was below deck in any way shape or form by asking the questions I did. I was looking for information, especially in light of the fact that the closest I get to water is to wade ankle high. I understand that you are being protective of Phil, but you don’t have to spew anger to accomplish that task.
What the news and everyone, including Linda, said is that this is basiclly about money. Nothing can punish Phil more then living every day with what happened.
Title 18 Section 1115 of the U.S. Criminal Code criminalizes the misconduct or negligence of a ship’s officers that results in the death of another; “Every captain, engineer, pilot, or other person employed on any…vessel, by whose misconduct, negligence or inattention to his duties…the life of any person is destroyed, and every owner, charterer…, through whose fraud, neglect,… misconduct, or violation of law the life…is destroyed, shall be fined…or imprisoned not more than ten years, or both.”
The elements of the crime are that: (1) the defendant was [captain, pilot, operations manager, etc.] of the vessel; (2) the defendant was guilty of misconduct, negligence, or inattention to his duties on the vessel; and (3) that by reason of such misconduct, negligence, or inattention, life was destroyed.
It is important to note that intent is not an element of the offense and it is unnecessary to show that the acts or omissions that caused the loss of life were willful or intentional.
Looks to me like the US Attorney’s Office for the State of Maine got it wrong…just saying!
Wow, I’m glad you have all of this figured out and have saved the Taxpayers a load of grief dealing with those pesky things like evidence, facts,testimony, Due process or Trials. Thank alot.
Actually Rocky I have to agree here, They did get it wrong, they should have brought charges against the boat that endangered himself and his crew purposefully by not heeding right of way and caused death to himself while endangering the lives of another vessel and his crew, purposely travelling into the direct path of an oncoming vessel that clearly had right of way.. So yes they did get it wrong here, meaning they charged the wrong boat!!
If he had been a licensed watch officer on a merchant vessel he would likely be going to jail for this. The mate on watch running the tug that ran down the duck boat in PA is currently serving a year, and while inexcusable the reasons for his inattention were more compelling than eating lunch. If Mr. Torrey’s lawyer’s most compelling argument is that he was the stand on vessel he will lose for all the reasons listed by other posters. The navigation rules leave little grey area in this circumstance. He needs to settle this and be thankful when he hugs his kids at night that he is not going to prison.
It seems to me that neither vessel was keeping a proper lookout.
Fisherman running the boat aren’t below deck eating. Its similar to the Deadliest Catch crab fishing captains having their smokes and coffee while sitting at the helm. They are still running the boat and paying attention. The problem gets to be the amount of electronics needed to be competitive these days can make blind spots. Looking out in front he would see any boat in front, as well as any slow moving boats approaching from the “blind side”, but miss someone coming in at 15knots, or whatever speed he was going before the sternman heard him slow down.. If neither captain was keeping proper watch, does the Coast Guard fine the widow and heirs, or just the survivors. Not a pleasant thought, but something to think about when handing down $30,000 fines.
Wow. I see we have a slew of Arm chair experts in here. So far I see a collection of folks who have never spent a minute at the Helm of a commercial vessel, are Bay Pirates on their Trust Fund Sloops and then we have experienced Mariners who should know better then to run their yaps when they have just fragments of the total information available of an event that led to death of one man and changed the lives of many others forever.
It is to thate last group of individuals that I am addressing now, shame on you all. With all of the professed years of maritime experience, world class training and ability to rattle off Maritime Law off the top of your heads, you would think you would know better then to condemn this man in a public setting, with your only source of information being a local Newspaper article. You are trying this Guy in the court of public opinion, a court mostly made up with folks who’s Maritime knowledge comes from Johny Depp or Kate Winslet Movies. Again, shame one you.
Since you Deep Water Perry Masons are already at it, let me throw something at you.
Let’s take all that you “know” of this terrible event, and add a few things to it.
Lets say that the Capt. of this Vessel was in fact shoving a sandwich down his throat. Lets also say that he was sitting down while doing this. But then lets go on to say that this Capt. was shoving a sandwich down his throat, sitting down , In a Capt. chair AT THE HELM, in manual control of the Helm(no Auto nav./pilot,it was removed and at the shop for repair) with a full view of all around him except for the “blind spot ” off the Port side . This “Stand on ” vessel’s Capt. would have to ,come to or get out of the throttle to get a clear view of what might be in that “blind spot” off his port or leave the helm and walk back to the stern and take a look.
So with this ,could you tell me, what does maritime law say about how often must the Capt. of a “Stand on” Vessel alter speed or course, or leave the helm to verify that a “give way” vessel has sufficiently followed maritime rules in respect to collision avoidance?
None of this will take away the pain from those involved in this terrible accident or bring back the man who is gone from his family forever. It will not change the minds of those Monday morning Quarterbacks who have already sealed this case up solid in their minds, but I do thank you for using your vast knowledge on this subject matter to answer this question for me .
Rocky Marshall.
Do sailboats really count for ANYTHING??? They can’t even stay on the proper side of the naviga tional cans!! I pulled a sail boat off a ledge last summer that actually thought that his “grounding” was my fault because “you were fishing in there… I thought that I could go there too”. BONEHEAD!!! My boat doesn’t draw 9 feet of water!!! I am working and you are playing!! Pay attention to your own boat and don’t worry about mine!! Stay on the proper side of the cans & nuns and out of the traps & buoys OR GET OUT OF MY BAY!!!!!!!! ( In other words, all you fancy pants sailboat captians with no navigational skills, We really don’t like you either!!!)
LOL… Love the perspective MLC, I remember not to long ago man from Winter Harbor was hauling his traps and was hit by a sailboater, trying to get a closer look… The fishermen was scared to death one of these dogooder out of staters was going to sue him for all he was worth… Fortunately the individual in the SB had brains enough to admit wrong doing apologize and go away…
Torrey’s insurance company will settle; anyone who knows the 1972 COLREGS rules of the road would immediately recall Rule 2 ” (a) Nothing in these Rules shall exonerate any vessel, or the owner, master or crew thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case(b) In construing and complying with these Rules due regard shall be had to all dangers of navigation and collision and to any special circumstances, including the limitations of the vessels involved, which may make a departure from these Rules necessary to avoid immediate danger” which basically means that ANY captan will do ANYTHING to keep his vessel, crew, nd other vessels out of harms way EVEN if that means breaking all the other rules. Blindly adhering to the “stand on vessel” is not a defense that will stand up in admiralty court. In addition it is a general custom among fisherman that a boat that is steaming (running from one gear string to another or running into or out of the harbor), will give way to a boat that is actively working/hauling gear.
When I was a lobster fisherman, years ago, I always ate my lunch while at the wheel where I could see any dangerous situation if it occurred. Furthermore I have fished with several other men, and they always did the same thing.
I thought when this happened, and still do now, that it is the height of negligence to let a boat you are in charge of, run at 20 knots in waters where other vessels may likely be, and then sit down, out of sight of the water around you, for many minutes.
This was very negligent operation plain and simple, no excuse for it!
Yes there is an excuse for it?? One persons failure to follow the known exercised navigational law in turn exploited a minor commonplace scenario… Yes there is negligence, but the parties capacity of such should be weighed as the discerning factor… That being, failure to follow navigational law, which in turn caused the whole situation to start with, not someone reaching for their lunch as you yourself and other fishermen are admittedly guilty of… There where 2 vessels on the water that day, and Jordans Boat was last seen a mile away going the opposite direction, so where is his negligence?? Breaking navigational law and heading at throttle speed directly into a rocky shore in front of an oncoming vessel?? Besides the fact that he had done this to another vessel earlier in the month??…. If you want to place blame, read the whole story, know the whole situation, and then cast an opinion… Most are reading the article and drawing conclusions based on a portion of the actual facts…
So according to what everyone is saying, including Linda, is that this comes down to money? Nothing, knowing Phil, can punish him any more then living every day with the memory of what happened.
What a hateful thing to say about Linda, who lost her husband due to negligence. Is it her that is worried about the money?
Wish I had seen this sooner. If you read the paper she stated that the insurance company would not pay her for her lose unless she sued Phil. The insurance company will give her nothing but money, so tell me where I am wrong.
If Mr. Torrey had seen Mr. Jordan’s vessel when it was more than a mile away, why then did he not keep track of it. If, he lost sight of the vessel, Then why did he not radio that vessel and inquire as to it’s where abouts? I’m not a sailor of any sort so, I really am interested in knowing these things.
Please know that, I am not blaming either party for this horrible event. May you all find peace.
Ok Frosty i will give you the benefit of the doubt, but lets put this into proper perspective. Ask yourself the same exact questions about Mr Jordan, then Put yourself in Mr Torrey’s position, and think if I am in the right of way, then why are these questions people are asking or blaming me for and not putting themselves in full perspective of the situation..??
Other articles that I read stated the Mr. Jordan did NOT have his radio on and even if he did he couldn’t hear it because he wasn’t wearing his hearing aids. Also how do you go from a stand still, according to other articles, Mr. Jordan appeared to be setting traps, to ending up in front of a boat, that Mr. Jordan should have beenable to see, that quickly?
Blame the victim? Really?
I don’t like to, but if he is to blame YES.
Don’t worry Phil!!! The whole fishing community is behind you as I understand what you were doing!!We are all praying for you and GOD will help you through this!!!
To Mainer
Where was Frankie’s look out? Shouldn’t he have been more diligent since he didn’t have the right of way and had more visibilty then Phil had. This is according to everything I had read. Why are you insulting people that are just stating their opinion?