A. PR 04-098 Missing at Sea, Presumption of Death, Number Holder Kenneth F. T~, SSN: ~

DATE: March 22, 2004

1. SYLLABUS

When a person is missing at sea and presumed drowned, follow instructions in POMS GN 00304.025 (Circumstantial Evidence of Death) where there is no preferred or secondary evidence of the fact of death, the person has been missing for less than seven years, and the body has not been recovered. When determining whether circumstantial death can be established, consider whether the State Medical Examiner issued a death certificate recognizing a presumption of death, not the fact of death, and the Coast Guard issued a letter stating that the man was "lost at sea and is presumed dead."

2. OPINION

You have asked whether the Agency can presume that a man missing at sea is dead, prior to the passage of seven years, when the State of Oregon issued a death certificate recognizing a presumption of death, not the fact of death, and the Coast Guard issued a letter stating that the man was "lost at sea and is presumed dead."¹

FACTUAL BACKGROUND

Kenneth F. T~, a commercial fisherman, was last reported to be fishing on August 27, 2003, while sailing alone on his vessel, the C-Lady. He has not been seen or heard from since that date. He was 61 years old. His third wife, Brenda T~, has filed for survivors' benefits for herself and Kenneth's stepson, Joshua L~, and a lump-sum death benefit. Kenneth has a twelve-year old daughter who lives with Kenneth's second wife, Barbara T~. Barbara has not yet filed for benefits, but there is a notation in the file that she intends to file.

Brenda stated that Kenneth called her in the morning and in the evening when he was fishing. She last heard from Kenneth on August 27, 2003. Donald J~, another commercial fisherman, states that he often went fishing in a "partner boat" in the vicinity of Kenneth's vessel during the season (three to seven weeks long). According to Mr. J~, Kenneth was known by his peers to be a sober person and the best fisherman in his class. As a general rule, when both men were out at sea, they kept in constant contact.

The day before Kenneth went missing, Mr. J~ reports that a storm was rising. ² He and Kenneth discussed returning to port the next day because of the storm. Mr. J~ went to another area to fish and then returned to port as the storm hit. He could not contact Kenneth. The boats were only half full of fish when contact was lost. Typically, neither fisherman would go to shore without a full boat. However, this storm forced Mr. J~ in, despite his "competition" with Kenneth to fill his boat up first. Mr. J~ felt that Kenneth had a good marital relationship with Brenda and had no reason to leave his home life (he noted that Kenneth and Brenda had moved into a new dwelling and that Kenneth purchased a new truck). Mr. J~ speculates that the C-Lady caught fire, because the life ring that was found was burned.

Mr. J~ stated that Brenda contacted him when she did not hear from Kenneth. Mr. J~ then contacted the Coast Guard on September 3, 2003. Starting September 3, 2003, and going through September 10, 2003, the Coast Guard searched by air and sea, but found only a floating life ring (on September 7th, near Crescent City, California), with no other evidence of wreckage. The life ring was burned. On September 30, 2003, the Coast Guard issued a letter stating that Kenneth was "lost at sea and presumed dead."

Gina P. D~, the Harbormaster of Bandon, Oregon, states that she last spoke by phone to Kenneth, on July 23, 2003, while he was off the coast at Coos Bay (just north of Bandon). He was ordering parts for his boat. Ms. D~ believes that Kenneth was an excellent mariner and fisherman, with a reputation in his community for steadiness, sobriety, and industry. He frequently went out alone on two to three-week fishing trips, but maintained good communication with his wife as to his whereabouts. Ms. D~ states that she believes Kenneth would not abandon his family or go away without notification. He had a beautiful commercial boat and home, and took excellent care of his possessions.

Bonnie T~, Kenneth's first wife, and the mother of some of Kenneth's children, states that she was in telephone contact with Kenneth in early August 2003, as he headed out on a two to four-week fishing trip on the open ocean. He planned to see his daughters and grandchildren.

Bonnie and Kenneth had been married for nineteen years. She stated that she had often fished with him and knew his practices. She reported that, during bad weather, he would normally shut down the engine and drift. It was Bonnie's understanding that the Coast Guard found a burned life ring with a melted and charred rope. Thus, she speculated that the C-Lady burned while Kenneth was asleep, drifting in the bad weather. He was regarded as one of the top fishermen on the coast, had not had a drink in four years, and, while at sea, stayed in touch with Brenda and his oldest son.

Brian T~, Kenneth's son, states that he last saw his father in February 2002, after the fishing season, unloading gear. His father was never out of communication more than one day at a time and maintained a solid reputation for steadiness, sobriety, and industry. However, Kenneth could not swim.

On October 10, 2003, a local Internet newspaper, theworldlink.com, which claims it serves the great south coast of Oregon, reported a fall beach cleanup set for October 17, 2003. The paper, in coordination with Brenda, asked volunteers to look for debris from C-Lady. The paper reported that Kenneth had not been heard from since August 29th, and that a life ring was found floating near Crescent City, on the northern California coast.

On December 10, 2003, the Oregon State Medical Examiner issued a death certificate stating as the cause - "Presumed drowned (body not recovered)." The death certificate shows the time of the presumed drowning as "unknown", the date of the presumed drowning as August 28, 2003, and the place of presumed drowning as "off coast of Coos Bay, Oregon."

DISCUSSION

The Social Security Act, 42 U.S.C. § 402, is silent on how a claimant is to demonstrate the death of the insured. The regulations and the Program Operations Manual System (POMS) fill in the gap.

A claimant must produce either "preferred evidence" of the fact of death under 20 C.F.R. § 404.720(b) and POMS GN 00304.005, or "secondary evidence" of the fact of death under 20 C.F.R. § 404.720(c) and POMS GN 00304.015.

Section 404.720(b) states:

Preferred evidence of death. The best evidence of death is -

(1) A certified copy or extract from the public record of death, coroner's report of death, or verdict of a coroner's jury; or a certificate by the custodian of the public record of death;

(2) A statement of the funeral director, attending physician, intern of the institution where death occurred;

(3) A certified copy or extract from an official report or finding of death made by an agency or department of the United States; or

(4) If death occurred outside the United States, an official report of death by the United States Consul or other employee of the State Department; or a copy of the public record of death in the foreign country.

POMS GN 00304.005 states that "[p]referred evidence of death must be obtained if available." This provision lists the above documents as preferred evidence.

Section 404.720(c) states:

Other evidence of death. If you cannot provide the preferred evidence of a person's death, you will be asked to explain why and to give us other convincing evidence such as: the signed statements of two or more people with personal knowledge of the death giving the place, date, and cause of death.

POMS GN 00304.015 states:

1. Signed Statements

Obtain signed statements of people (preferably not related to the claimant) who have personal knowledge of the death (i.e., those who saw the body). Include in the statement:

* relationship to the deceased, if any;

* basis for the identification of the deceased;

* occupation, age, sex and race of the deceased;

* date and place of death;

* date and place of the viewing of the body;

* cause of death, if known;

* whether anyone else saw the body;

* why a public record of death or statement of attending physician cannot be obtained.

2. Other evidence

Ask the claimant to submit any other evidence of probative value whenever the statements cannot be obtained or doubt still remains as to the death.

A federal agency, the Coast Guard, issued a letter concluding that Kenneth is "lost at sea and presumed dead." The Oregon State Medical Examiner issued a death certificate stating that the immediate cause of death was "Presumed drowned (body not recovered)." Two cases establish that this documentation is not sufficient evidence of death in fact. See Daubert v. Sullivan, 905 F.2d 266, 270 (9th Cir. 1990); see also Carter v. Bowen, 738 F.Supp.1418, 1419 (N.D. Ga. 1987). In D~, an Alaskan coroner's jury determined that the number holder, who disappeared from his residence years earlier and was known to be dealing drugs, was presumed dead. The state issued a certificate of presumed death, making it clear that the certificate would be amended to indicate the fact of death if the body were discovered. The Social Security Administration, considering this case for purposes of survivors' benefits, determined that the evidence before the coroner's jury, and the conclusions of that jury, did not establish the particular date, place, and cause of death, that is, death in fact, and so denied the claim. The appellate court upheld the requirement and finding that the claimant needed to present evidence of death in fact. See D~, 905 F.2d at 270. In C~, a federal district court in Georgia (persuasive, but not binding in the Ninth Circuit) held that the cause of death documented in a state death certificate must indicate more than presumed death in order to create a binding presumption death for purposes of Social Security survivors' benefits. See C~, 738 F.Supp. at 1419.

Where there is no preferred or secondary evidence of the fact of death and the body has not been recovered, POMS GN 00304.025 directs the field office to "establish the death based on circumstantial evidence." This POMS provision further states:

The amount of evidence needed to establish death as the inevitable conclusion from all of the circumstances of the disappearance will depend on the facts developed. There is no prescribed amount of time [that] must pass before a death can be established based on circumstantial evidence.

If the disappearance was due to a drowning, POMS 00304.025B.3a directs the field office to develop the evidence under POMS 00304.025B.2 and to "[g]et statements from at least three eyewitnesses." If there were no eyewitnesses, the field office is directed to "get statements from other people familiar with the disappearance." Id.

POMS 00304.025B.2 is captioned "Evidence-Body Not Recovered" and reads, in pertinent part:

The amount and type of evidence in any case will depend on judgment. Obtain the following, as appropriate:

If evidence is statements from the claimant and persons with knowledge about the missing person, then obtain statements on Form SSA-795 which provide the following information as appropriate:

* identification of person making statement

* the date, time, place and circumstances in which the missing person was last seen

* information about pertinent evidence or knowledge, its source and basis

* information about the continued absence from his or her residence, place of employment or business and places customarily frequented

* information about any search for the missing person, including search of death records

* information about any reasons (or lack of reasons) which might have led the missing person to falsify their disappearance, such as financial, family or mental problems

* remarks and actions of the missing person before the disappearance

* names and addresses of family members or friends that the missing person would likely contact

* opinions as to whether death was the probable result of the circumstances in which the missing person was last seen or whether survival was likely.

If evidence is investigations conducted by Federal, State, or local agencies, then document attempts to locate the missing person conducted by other agencies. For example: Reports of searches by the FBI, Coast Guard or police.

If evidence is newspaper reports, then obtain reports about the person's disappearance and/or any search for the body which may provide information.

When circumstantial evidence does not establish the fact of death as an inevitable conclusion, the death may be presumed after seven years have elapsed since the disappearance. See 20 C.F.R. § 404.721(b); POMS GN 00304.050.

Here, Kenneth's professional acquaintances (Mr. J~ and Ms. D~) submitted statements about his habits and character at sea. Mr. J~ also described the details of his last contact with Kenneth on August 27, 2003 and a rising storm. The storm was bad enough for Mr. J~ to go to port on August 28, 2003.

Brenda gave a statement about her daily contacts with Kenneth while he was at sea, and that her last contact with him was on August 27, 2003. Kenneth's first wife of nineteen years also gave a statement about Kenneth's habits and that he planned to see his daughters and grandchildren. There is no specific basis to question any reporter's credibility.

Kenneth was missing for five days before Coast Guard was notified. The Coast Guard investigated the disappearance and conducted an extensive search by aircraft and watercraft. The life ring from Kenneth's boat was found. There is evidence that it was burned, suggesting a possible accident. The Coast Guard concluded that Kenneth "is believed to be lost at sea and is presumed dead." The Coast Guard had authority to investigate marine casualties and "to decide as closely as possible, the cause of the casualty, including the cause of death." See 46 U.S.C. § 6301(1) and 46 C.F.R. Ch. I, Subch. A, Pt. 4.

The State Medical Examiner issued a death certificate stating that Kenneth is "presumed drowned (body not recovered)." Oregon law states: "When a death is presumed to have occurred within this state but the body cannot be located, a certificate of death may be registered by the state register only upon received from the State Medical Examiner." OR. REV. STAT.§ 432.307(7).

Finally, a local Internet newspaper described Kenneth's disappearance and asked volunteers for the "Great Oregon Fall Beach Cleanup" to look for boat debris.

There appears to be circumstantial evidence establishing that Kenneth drowned on or around August 28, 2003, the date used in the death certificate. However, if you wish to further develop the record, you could explore whether any insurance claims were filed and, if so, whether they were paid, and whether Kenneth's estate was probated and, if so, the disposition of the estate.

Footnotes:

[1]

You have received a congressional inquiry.

[2]

We have looked into obtaining official weather data from the National Oceanic and Atmospheric Administration (NOAA), National Climatic Data Center. In their publicly accessible records, there is no data retained for the area west of Coos Bay, Oregon, where Kenneth was last seen (the closest stations retaining such data are inland at Medford and Eugene). In any event, Mr. J~, as an eyewitness to the specific, affected fishing spot, would be a better source of weather data than any general data covering a larger area. We see no reason to question his credibility.