Chilmark selectmen appeal Coast Guard decision
Photo courtesy of Chuck Stevens/ Phil Cox
Chilmark selectmen on Tuesday May 15, unanimously voted to authorize the language of a formal appeal to the U.S. Coast Guard regarding their decision to deny the town's insurance claim regarding the Menemsha fire of July 2010 that destroyed both the town pier and Coast Guard boathouse.
The 11-page letter was drafted by town counsel Ronald Rappaport and directly disputes the findings of Coast Guard attorney Susan Steiner, who concluded in a letter dated March 8 that the damages claimed by the town were not due to the negligence by the Coast Guard.
In her letter Ms. Steiner stated: "The information indicates that the fire began on the drive-on pier, quickly spreading to a nearby structure, access piers, and moored boats. The investigation into the incident could not determine the cause of the fire that damaged your property."
Unlike the letter from Ms. Steiner, which was only a few paragraphs long and failed to provide evidence to support her conclusion, the letter drafted by Mr. Rappaport goes into great detail and cites witness testimony, photographs, and physical evidence.
"The USCG's basis for denying the Town's claim is not correct – the fire did not originate in an area controlled by the town," Mr. Rappaport wrote in the appeal letter. "Further the town's review of the available evidence suggests that the most likely explanation is a malfunction of the electrical line leading to the Menemsha Coast Guard station."
The selectmen's letter states eyewitness reports summarized in the final report of the investigation support the conclusion that the fire "started on the boardwalk/pier to the USCG boathouse rather than on the drive-on pier leading to the town dock, and therefore was ignited by malfunction in the USCG's electrical line."
The appeal letter cites oral and written statements by the sole member of the Coast Guard who was present in the boathouse when the fire started. The letter states the seaman saw smoke through the west window of the boathouse, but no flames.
When he ran out of north-facing door onto the Coast Guard pier, he turned to the west and saw white and black smoke but no flames. When the witness ran back into boathouse to find a phone he noticed flames outside the windows of the boathouse facing to the west and east.
"The USCG witness did not observe any flames on the town drive-on pier, but rather undeniably only saw fire on the USCG pier and dock in close proximity to the USCG boathouse – indicating the location where the fire started," the appeal letter says.
The letter also cites another witness who was walking along Harbor Hill Road at the time the fire started. From his elevated viewpoint he could see fire in front of the boathouse, and described the flames to be between five and ten feet tall.
"Absent from the witness's statement is any observation the drive-on pier was on fire at the time he first observed the flames in front of the USCG boathouse. This witness's statement is crucial because there are no other witnesses whose statements were summarized or reproduced . . . who appear to have an unobstructed view, from a higher plane, of the entire USCG boathouse area," the letter says.
The letter also notes the denial of the town's claim was based on incomplete or incorrect statements provided to investigators, and cites statements provided by former selectman Frank Fenner as an example.
Mr. Fenner was working at the Galley Restaurant, which he owns, when the fire was started, and was later transported by the town harbormaster from the base of the harbor along the eastern side to the boathouse where his personal boat was tied up.
The appeal letter states that Mr. Fenner had an unobstructed view of the entire length of the drive-on pier, as well as the boardwalk-pier supporting the boathouse, and told investigators he did not see any flames under the drive-on pier, and that the main flames were in the front of the boathouse.
"The town has concerns that [Mr. Fenner's] complete testimony was not incorporated into the final report," the appeal letter says.
Mr. Rappaport in the letters asks that the Coast Guard review the totality of the evidence, noting that this is the standard a judge would use either for a summary judgment or a motion for a directed verdict. He then cites case law to conclude that the town's claim cannot be dismissed with a legal basis.
The 22-page report into the cause of the fire was compiled through a joint effort of the Coast Guard, U.S. Bureau of Alcohol, Tobacco and Firearms, Massachusetts Fire Marshal, and local authorities. It was completed December 30, 2010, but was not presented to the town until February 22, 2011.
The report said the fire may have been the result of a discarded cigarette on the pier, faulty electrical wiring to the boathouse, or faulty electrical wiring to the town's pier.
Mr. Rapport in his letter also notes that the original report concluded a number of factors could have started the fire – including faulty wiring or even a discarded cigarette butt – and asks the Coast Guard to reconsider.
"Given that there is credible evidence suggesting that the drive-on pier caught fire after the boathouse became consumed in flames — and given the lack of eyewitness evidence establishing that a lit cigarette was deposited on the boardwalk pier prior to the onset of the fire — the town has presented a valid claim for compensation," he wrote.
In addition to the town, about 40 other people have filed claims through the Coast Guard insurance carrier, most of them seeking compensation for their boats that were damaged in the fire.
On Tuesday selectmen did not discuss the appeal letter in great detail, but did suggest that boat owners file their own appeals with the Coast Guard. They suggested the boat owners use the appeal letter from Mr. Rappaport as the template and then add their own personal statements.
"We're submitting ours as the town of Chilmark. But other individuals who want to make the appeal can use this material," Mr. Doty said. "[Mr. Rappaport] suggested that they submit the same letter and write a one page note that says, 'I appeal on the same terms of the town of Chilmark.'"