THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, February 25, 1996 TAG: 9602250043
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS AND LEE TOLLIVER, STAFF WRITERS
DATELINE: VIRGINIA BEACH LENGTH: Long : 231 lines
The Sand Trap had claimed another prize, and this one was a beaut.
It sat fat and awkward on a sandbar in the mouth of Rudee Inlet - 66 feet of gleaming fiberglass and fast engines. It was a yacht so expensive that the engines alone were worth two houses in Kempsville. A yacht so new it did not yet have a name.
A yacht so fancy it came with a $1.5 million price tag.
It took workers 4 1/2 months to build this magnificent boat at the Ocean Yachts factory in Egg Harbor, N.J., near Atlantic City. It took a pair of sailors just one day at sea, on the boat's maiden voyage from the factory, to get it stuck in Rudee Inlet in four lousy feet of water.
It took three more days to get the sorry hulk out of the inlet. By then, the sea had poured through the yacht, rendering it a waterlogged wreck.
``It's virtually gutted inside,'' said Mike Davis of the Portsmouth Boating Center, where the yacht now rests. ``It was supposed to be the showpiece at the boat show down in Miami.''
Who will pay for this expensive wreck?
If history is any guide and if the owner files a claim, Virginia Beach's taxpayers will.
For 25 years, boaters have been running aground in the shoals of Rudee Inlet, whose channel is supposed to be - but rarely is - 10 feet deep. Twice in those 25 years, including once just two months ago, federal judges have slammed Virginia Beach for not adequately maintaining the inlet and have stuck the city with the boaters' bills.
It was 25 years ago, in December 1971, that a federal judge first scolded Virginia Beach for neglecting the inlet and endangering boaters. It came after a charter fishing boat ran aground on a shoal and hit a stone jetty at the inlet.
That was just three years after Rudee opened in 1968.
``The evidence presented strongly supports a finding of negligence on the part of the City in performance of its duty in connection with the construction and maintenance of Rudee channel,'' Judge John A. MacKenzie wrote in 1971.
Fast forward to 1995.
In December, another federal judge again found Virginia Beach liable for not dredging Rudee Inlet, where another boat had run aground. The judge awarded the boat's owner $7,877 in damages.
In both federal cases, the boats ran aground in just 3 1/2 feet of water.
``The city created the inlet, they reap the benefits of the inlet, but they don't want any of the liabilities that go along with it,'' said Norfolk lawyer Edward J. Powers, who represented the boater in the December trial. ``They're lucky nobody's been killed yet.''
In fact, boats run aground so often in Rudee Inlet that local skippers have given it a nickname: The Sand Trap. They say the only surprising thing about the Feb. 8 yacht grounding is how utterly un-surprising it was.
Nobody knows for sure how many boats have run aground in the manmade inlet, a constantly shifting channel that connects Lake Rudee, Lake Wesley and Owl Creek to the Atlantic Ocean. Over the years, only four legal claims have been made against the city for such incidents. But there are many horror stories.
Fred Feller has run boats out of Rudee since 1968. He ran the fishing center there for 18 years and now runs four 65-foot headboats.
``I've bent wheels and shafts and had to stay outside (the inlet) for an hour or two to wait for more water, and I've had to cancel trips because of it,'' Feller said last week. ``It costs me money but I've never sued the city because I was always hoping that they'd start to do something about it.''
Gary Van Auken is a lieutenant in the Virginia Beach Police Department. He is also, in an odd twist, the latest claimant against the city for wrecking a boat at Rudee Inlet.
It was no simple pleasure boat.
Van Auken, 48, lived with his family on the boat, a 46-foot sailboat called Sir Creeper. Since the boat ran aground at Rudee on Dec. 2, the family has been living in an Oceanfront hotel, the Princess Anne Inn.
For the city, this presents potential damages far exceeding the $7,877 in the December federal case.
Powers, who represents Van Auken, figures that damage to the boat alone cost $25,000 to $30,000. Then, too, the city may be on the hook for Van Auken's hotel bill until the boat is fixed, probably in the spring.
``He is basically out of a residence now,'' Powers says.
Van Auken blames the city. He says the boat ran aground dead center in the Rudee channel, exactly where it should have been sailing to negotiate the inlet.
He says a Coast Guard boat ran aground in the same spot an hour before he did.
``The city is going to mess around with this, paying out tons of money to people with claims until somebody loses their life and really sticks it to them,'' Van Auken says. ``My particular claim has been very frustrating. I've been dealing with them for two months when they know, from other court cases, that they are responsible. It's very unfair. . . .
``After I went aground, the city finally issued a notice to mariners that the inlet was shoaling. They're supposed to keep track of that stuff, but they wait until something happens.''
The city has defenses for such claims. So far, though, they haven't succeeded in court.
One defense is this: It is simply impossible to stay ahead of Mother Nature and keep the channel shoal-free. That's not a legal argument, but a common sense one.
``It's a tough job in the winter because of the way the wind blows,'' Assistant City Attorney Richard Beaver says. ``There have been times when we've had trouble getting our dredge out because of the weather.''
In theory, the inlet is supposed to be dredged to 10 feet. That's the design depth. In practice, the city sometimes lets sand build up in the channel until it is only half that deep.
``We try and maintain at least five feet of water in the channel inside the jetties,'' a city engineer, Carl A. Thoren, said in a sworn deposition in 1994.
Who is ultimately responsible for the inlet?
That depends. Once a year, usually in the spring, the Army Corps of Engineers dredges Rudee and drops the sand onto the resort beach, in time for tourist season.
Otherwise, it's the city's job. The city sends survey crews into Rudee Inlet at least once a month, and when the water gets dangerously shallow, the city calls for a dredge.
Also, when the inlet shoals, the Coast Guard warns boaters in radio broadcasts for two weeks, then publishes the warning in its Local Notice to Mariners. The Coast Guard also marks the approach to the inlet with an offshore buoy and lights on the jetties that jut from each side of the inlet to the ocean.
Even so, it can take a while before the city digs a shallow channel at Rudee.
``A weekend could pass right there before we even get the crew on the dredge,'' Thoren said in his 1994 deposition. ``If the crew happens to be working on some other project, then another three or four days could pass before they get onto the dredge. So there's a week that could pass right there.''
Fortunately, says Robert Eisenberg, the city's risk management director, ``People coming into the inlet there are going slow, so if you do ground there, damage is going to be limited.''
The four claims against the city for wrecks in Rudee Inlet include Van Auken's and the December federal case. So far, the owner of the yacht in the Feb. 8 grounding has not filed a claim.
When such a claim winds up in court, the city argues that boaters are partly responsible for their own fate. After all, the maritime maps clearly warn: ``Channel is subject to shoaling.''
``There's no law that I know of that makes the government - in this case the city - the insurer of anyone who uses the waterway,'' Beaver says. ``But we do have to be reasonable in our maintaining of the waterway.''
But federal Judge MacKenzie, in his landmark 1971 ruling, cited a 1960 precedent from Alaska that concluded, ``One who voluntarily creates or maintains a condition for the use of others . . . (must) exercise care to prevent that condition from becoming a source of danger to those who use it.''
In other words, Powers says, the city has to maintain the inlet the same as it maintains public streets.
U.S. Magistrate Judge Tommy E. Miller made the same finding in his Dec. 19 ruling against the city in the case of Charles J. Hayes vs. Virginia Beach.
In that case, the boater proved that the city knew the inlet was too shallow, well before the Mick's Finn ran aground. Just four days earlier, a city survey showed Rudee Inlet was 3.8 to 5.9 feet deep where the boat grounded. Yet the city had not dredged.
``We view that as a rather fact-specific case,'' Beaver says. Even so, the magistrate judge is now putting his opinion in writing, just to make sure everyone understands his reasoning and how it will apply to future Rudee Inlet cases.
It's anyone's guess how that ruling, and the 1971 MacKenzie ruling before it, will affect the Van Auken claim and the yacht owner's claim, if he ever makes one.
``I don't know what we're going to do about that one (the Van Auken claim),'' Beaver says. ``It depends on the facts of case, on the knowledge of the boater and our knowledge of the conditions in the channel.''
Meanwhile in New Jersey, Neal Feussner waits for the insurance adjusters, silently fuming.
Feussner was the mate on the ill-fated million-dollar yacht. He lost more than $1,000 worth of clothes and equipment on the boat. It was insured, but he figures he won't see the insurance money for months.
For the insurance company, that should be small change. The boat itself was brand-new. The engines alone were worth $250,000.
Feussner and captain Joe Walker were taking the boat from the factory to its new owner, Yacht Sales International of Miami Beach. It would have been a five- or six-day trip.
At about 3 p.m. on Feb. 8, the boat turned toward Rudee Inlet. It would be getting dark soon, and Feussner and Walker wanted to gas up and spend the night. They say they did everything possible for safe passage.
They called ahead to the Rudee Inlet Fishing Center for advice. Then they carefully followed the advice by coming into the channel slowly, between the markers, staying slightly on the south side where there was supposed to be more depth. The boat draws about five feet of water.
Then, just inside the jetties, there was trouble. The starboard propellers ran aground. The sea, driven by 25-knot winds, crashed over the transom, pushing the yacht. It turned sideways and got stuck for good.
Feussner blames the city, the Coast Guard - anyone that let the channel get so shallow without warning to incoming traffic.
``That inlet should have been closed,'' Feussner said Thursday. ``We could have gotten really hurt. I lost a lot of gear and Joe lost a lot of respect from mariners because he wrecked a boat on the very first day.''
Worse, Powers says, word has already spread among mariners on the East Coast: Stay away from Rudee Inlet.
David Wright, who runs the biggest sport-fishing boat at Rudee, a 58-footer called the High Hopes, already knows all he needs to know about Rudee Inlet.
``I've been through that inlet I don't know how many times and I've run aground and bent my wheels,'' Wright says. ``I'll only go through during the day because it's not safe at night. It's not safe most of the time during the day, but at least you can see then. . . .
``There is a lot of money in that inlet that is bringing in lots of tax dollars and the inlet should be taken care of like it's supposed to be. When you go to the Coast Guard, they say it's the city's fault. When you go to the city, they say it's the Coast Guard's fault. Is this serious negligence?'' ILLUSTRATION: Color photo
L. TODD SPENCER
On Feb. 8, a brand new 66-foot yacht valued at $1.5 million ran
aground and was swamped in Rudee Inlet.
Map
John Earle/The Virginian-Pilot
NOTABLE GROUNDINGS
Graphic
IF NATURE HAD ITS WAY, THERE WOULDN'T BE A RUDEE INLET.
Unlike Hatteras and Oregon inlets on the Outer Banks, Rudee is
not natural. It is thoroughly manmade and requires constant
dredging.
1927: Rudee is born as a drainage ditch, when the state Highway
Department builds a concrete culvert to drain the outflow from
swampy Lake Rudee and Lake Wesley.
1933: The culvert is destroyed by a hurricane in 1933.
1933-1960: Fishermen re-dig the ditch every spring, creating a
new outlet to the Atlantic Ocean. Pent-up winter runoff widens the
trench into a usable channel. Then, every fall, the inlet closes
again.
1960: The General Assembly creates the Rudee Inlet Authority to
buy land and create the inlet. It is part of a larger $1 million
plan to turn Rudee into a boater's Mecca.
1968: The inlet opens to much fanfare and much skepticism.
``Rudee Inlet has long been open to criticism,'' The Virginian-Pilot
reported in 1970, ``but seldom open to boat traffic.''
by CNB