C.G. warns fisherman after run-in

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"It was close enough to make me scared for my kids in the water," says one witness

After initially finding a 25-foot sailboat at fault for failing to keep clear of a 40-foot fishing vessel, the Coast Guard has reversed its decision in favor of the recreational boater.

Frank Glaser, a passenger on the sailboat, filed a complaint Aug. 21 against the fishing vessel Sadie Mae. Glaser says the fishing vessel, operated by David Ziemba, engaged in reckless behavior after an Aug. 19, 2009, encounter in Wellfleet Harbor, Mass. Glaser reported the incident - and sent video footage and pictures he'd taken of Sadie Mae - to Wellfleet harbormaster Michael Flanagan, the town police chief Richard P. Rosenthal and the Coast Guard station in Provincetown, Mass.

The Bristol Corsair, named Trial Balloon, had been leased for the summer by Dr. Richard Rubens of New York City, according to Glaser, a friend of 20 years. Glaser says Trial Balloon left Wellfleet Harbor about 10 a.m. that day. Aboard the boat were Rubens, Glaser, his wife, his 15-year-old son and 12-year-old daughter, who are all also from New York City. Rubens had leased the vessel numerous times, Glaser says.

The boat was about two miles offshore with the 10-hp outboard off, although they were not anchored, says Glaser. Just about noon, with clear skies and calm seas, Glaser says the kids went swimming off the transom. They were wearing PFDs and each had boogie boards tethered to a wrist. Glaser says they were only in the water for a few minutes when Sadie Mae approached.

Cmdr. Patrick McElligatt, chief of the prevention department of Sector Southeastern New England, says Sadie Mae was going about 8 to 10 knots and crossed the aft port side of the sailboat about 30 to 50 feet away while the children were still in the water.

Glaser believes it was much closer than that and says it was frightening to see a vessel nearly twice their size coming toward them. The boy's life jacket was bright blue and the girl's was bright red so they would have been clearly visible to the fishing vessel, says Glaser.

"I turned around and there's this sizeable fishing boat," says Glaser. "It was close enough to make me scared for my kids in the water."

Glaser says before Sadie Mae passed their boat on the port quarter at angle, both Rubens and Glaser started yelling repeatedly to the crew, "We have swimmers in the water."

After the fishing vessel moved on, Glaser thought his kids were in no more danger so he allowed them to stay in the water. "After it passed us, we thought it was over, but it wasn't over," says Glaser. "It made a right turn and crossed in front of us."

Sadie Mae motored across Trial Balloon's bow and came around parallel to the sailboat's starboard side about 50 feet away. Then Sadie Mae started turning to starboard so its bow was pointed at the sailboat, according to Glaser.

"When Sadie Mae turned toward us, I started screaming, 'We have swimmers in the water, get your boat the hell out of here,' " says Glaser.

Glaser's son, still in the water, said, "Dad, are they coming after us?' "

That was when Trial Balloon and her crew started to make their way out of the area. The whole incident occurred within a matter of minutes, according to Glaser. "[Sadie Mae] didn't keep coming toward us, but it really scared me."

Sadie Mae began fishing at that point, says Glaser, and he estimates Trial Balloon and the crew arrived back at Wellfleet Harbor at 1:30 p.m. Glaser filed his complaint a few days later.

McElligatt acknowledged that at first the investigation leaned in favor of the fishing vessel because recreational boats are supposed to steer clear of any commercial vessel actively engaged in fishing. But after follow-up interviews with both Rubens and Glaser, it was apparent Sadie Mae was under power and not fishing at the time.

"Upon further investigation, it was clear the Sadie Mae ... should've given the sailboat a wider berth," says McElligatt.

"It is important for all vessels, including sailing vessels, to know their responsibilities under the Rules of the Road and fully understand the different scenarios encountered," says Lt. Cmdr. Jennifer Stockwell, chief of inspections and investigations at Sector Southeastern New England.

"Rule 18 (a) states when vessels are in sight of each other a power-driven vessel shall keep out of the way of a sailing vessel [a sailing vessel is defined as any vessel under sail provided that propelling machinery, if fitted, is not being used], a vessel not under command, a vessel restricted in her ability to maneuver and a vessel engaged in fishing. Sadie Mae is a commercial fishing vessel, but at the time of the incident was not engaged in fishing and was required by Rule 18 (a) to keep clear of Trial Balloon."

The investigation concluded Nov. 18, 2009, when the Coast Guard sent a letter of warning to the crew of Sadie Mae, stating that the vessel operated "in an aggressive manner that endangered both passengers aboard the sailing vessel and swimmers nearby." The letter also states that Sadie Mae has had other complaints that date back to 1999 that "suggest a disregard for the safety of other mariners." The Coast Guard warned the crew that they could face civil or criminal charges if such actions in the future are not avoided.

Rubens declined comment. Ziemba could not be reached for comment.

This article originally appeared in the New England Home Waters Section of the April 2010 issue.