Liability for the Death on the Grace Bailey

Arthur A. Flower August 2, 2025

Executive Summary

The October 2023 collapse of the schooner Grace Bailey's mainmast, resulting in one death and five injuries, presents a complex web of potential liability spanning private negligence and governmental immunity. While the vessel's owners face substantial exposure under maritime and Maine wrongful death law, the United States Coast Guard's liability remains largely shielded by the Federal Tort Claims Act's discretionary function exception. This analysis examines the legal framework governing such incidents and assesses the prospects for recovery by the victims' families.

I. Factual Findings and Regulatory Context

The United States Coast Guard's investigation revealed that the mainmast failed due to extensive internal decay caused by Antrodia xantha, an aggressive brown rot fungus. The mast, installed in 1993, suffered from multiple deficiencies: it lacked the protective treated sapwood layer standard in marine applications, contained insufficient growth rings per inch (4-5 versus the recommended 6+), and had never received preservative treatment beyond superficial "slushing" with oil or wax.

Federal law establishes clear obligations for vessel safety. Title 46 of the United States Code requires vessel owners to maintain their craft in safe condition at all times. The implementing regulations, found in 46 CFR Subchapter T, govern small passenger vessels under 100 gross tons. Navigation and Vessel Inspection Circular (NVIC) 02-16, issued in 2016, provides specific guidance for sail rigging and mast inspections.

II. Private Liability: The Vessel Owner's Exposure

A. Federal Maritime Negligence

Under federal admiralty law, the Grace Bailey's owners owed passengers a duty of seaworthiness—a non-delegable obligation to provide a vessel reasonably fit for its intended purpose. The Supreme Court established in The Osceola, 189 U.S. 158 (1903), that shipowners must ensure their vessels are seaworthy, with this duty extending to all aspects of the vessel's equipment and appurtenances.

To establish negligence, plaintiffs must prove: (1) a duty of care existed; (2) breach of that duty; (3) causation; and (4) damages. The Coast Guard's findings provide compelling evidence of breach: the owners operated without a formal preventive maintenance plan, relied solely on visual inspections by untrained crew, and failed to implement industry-standard testing protocols despite discovering rot in the foremast in 2022.

B. Maine Wrongful Death Claims

Maine's wrongful death statute, currently codified at 18-C M.R.S. § 2-807 (previously 18-A M.R.S. § 2-804), permits recovery when death results from wrongful acts that would have entitled the deceased to maintain an action had death not ensued. The statute underwent significant amendment in 2009, eliminating language that limited recovery to pecuniary losses suffered by specific beneficiaries.

Under current law, the personal representative may recover:

• Pecuniary damages for lost earnings and support

• Medical and funeral expenses

• Up to $1,000,000 (adjusted for inflation) for loss of companionship

• Punitive damages up to $250,000 where gross negligence is shown

The two-year statute of limitations runs from the date of death, making timely action essential.

C. Limitation of Liability

The Limitation of Liability Act, 46 U.S.C. § 30505, permits vessel owners to limit liability to the post-casualty value of the vessel unless claimants prove the owner had "privity or knowledge" of the unseaworthy condition. The 2022 discovery of foremast rot and subsequent failure to inspect the mainmast comprehensively likely defeats this defense.

III. Governmental Liability: The Coast Guard's Shield

A. The Federal Tort Claims Act Framework

The Federal Tort Claims Act (FTCA) waives sovereign immunity for certain governmental torts but contains numerous exceptions. Most relevant here is the discretionary function exception, 28 U.S.C. § 2680(a), which bars claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty."

B. The Gaubert Test

In United States v. Gaubert, 499 U.S. 315 (1991), the Supreme Court established a two-part test for applying the discretionary function exception:

1. Element of Judgment: Does the challenged conduct involve an element of judgment or choice? If a statute, regulation, or policy specifically prescribes a course of action, no discretion exists.

2. Policy Considerations: If discretionary, is the judgment "of the kind that the discretionary function exception was designed to shield"? Courts presume policy considerations when established governmental policy allows discretion.

C. Application to Coast Guard Inspections

The Coast Guard's vessel inspection program involves substantial discretion at multiple levels:

Policy Level: Decisions about inspection protocols, resource allocation, and safety standards clearly involve policy judgments about acceptable risk levels and efficient use of limited resources. NVIC 02-16 itself states it provides "guidance" and creates no enforceable duties.

Operational Level: Even routine inspections involve discretionary judgments. The prohibition on aloft inspections due to inspector safety represents a policy choice balancing thoroughness against personnel risk. The decision to rely on visual inspections and traditional hammer-sounding reflects resource constraints and historical practice.

Courts have consistently held that Coast Guard inspection activities fall within the discretionary function exception. In Tew v. United States, 86 F.3d 1003 (10th Cir. 1996), the court found Coast Guard decisions about marking navigational hazards were discretionary and policy-based, focusing on resource allocation and commercial traffic patterns.

D. The Indian Towing Exception

Plaintiffs might invoke Indian Towing Co. v. United States, 350 U.S. 61 (1955), where the Supreme Court found liability when Coast Guard personnel negligently maintained a lighthouse. However, Indian Towing involved the negligent performance of a task already undertaken, not discretionary decisions about inspection methods. Here, the Coast Guard's choice of inspection protocols—not their execution—caused the failure to detect decay.

IV. Comparative Fault and Industry Standards

Maine follows modified comparative negligence, reducing recovery by the plaintiff's percentage of fault unless exceeding 50%. 14 M.R.S. § 156. While passenger fault is unlikely, the analysis may consider whether industry custom regarding wooden mast maintenance creates a standard of care.

The Coast Guard report notes that solid wooden masts inevitably develop checks (cracks) through which moisture penetrates. Industry best practices have evolved to address this through:

• Laminated or hollow-core construction

• Comprehensive preservative treatment

• Regular unstepping for internal inspection

• Modern non-destructive testing methods

The Grace Bailey employed none of these measures, relying instead on 19th-century maintenance practices for a 44-year-old timber under 21st-century safety obligations.

V. Practical Considerations and Likely Outcomes

A. Private Claims

The vessel owner faces significant liability exposure. The combination of documented pre-existing rot, absence of preventive maintenance, and reliance on inadequate inspection methods creates a compelling negligence case. Settlement is likely, particularly given the reputational risks to Maine's heritage sailing industry.

Damages could be substantial. The deceased passenger's estate may recover lost earnings over her work-life expectancy, while surviving passengers may pursue claims for physical injuries and emotional distress. Insurance coverage limits will likely drive settlement negotiations.

B. Governmental Claims

Claims against the Coast Guard face near-certain dismissal under the discretionary function exception. While tragic, the mast failure resulted from policy-level decisions about inspection protocols that courts are loath to second-guess. The Coast Guard's subsequent recommendations for enhanced inspection methods paradoxically strengthen the discretionary nature of existing protocols.

Political pressure may yield administrative changes, but monetary recovery through litigation remains unlikely. Congress could theoretically waive immunity through special legislation, but such private bills are increasingly rare.

VI. Broader Implications

The Grace Bailey tragedy illuminates persistent tensions in maritime safety regulation. The discretionary function exception, designed to prevent judicial interference with policy decisions, can shield genuinely deficient governmental oversight. Meanwhile, private operators navigate between authentic historical preservation and modern safety obligations, often choosing aesthetics over prudence until catastrophe strikes.

The incident may catalyze industry-wide adoption of non-destructive testing and preventive maintenance protocols. Insurance carriers, facing potential losses, may mandate enhanced inspection regimes regardless of regulatory requirements. The Coast Guard, while legally protected, faces pressure to modernize its inspection protocols for heritage vessels.

VII. Conclusion

The Grace Bailey's owners bears primary legal responsibility for the passenger's death, with strong prospects for plaintiff recovery under maritime negligence and Maine wrongful death law. The Coast Guard, despite contributing to the regulatory failure, remains largely immune from suit under current federal law. This asymmetry—where private parties bear full liability while government regulators escape accountability—reflects deliberate policy choices about sovereign immunity that courts cannot disturb.

For practitioners, the case underscores the importance of early evidence preservation, thorough investigation of industry standards, and realistic assessment of governmental immunity. For the maritime industry, it serves as an expensive reminder that nostalgia provides no defense to negligence. And for policymakers, it raises uncomfortable questions about whether current liability frameworks adequately incentivize safety in an age of aging infrastructure and limited regulatory resources.

The mast that killed Emily Mecklenburg had been slowly dying for decades, its decay hidden but inexorable. That neither owner nor regulator detected this rot before it proved fatal speaks to systemic failures that legal liability can only partially address. Until inspection practices match safety rhetoric, similar tragedies remain not merely possible but probable.

This analysis is based on publicly available information including the U.S. Coast Guard Report of Investigation, federal statutes and regulations, and established case law.