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.