451 F.2d 140 (5th Cir. 1971), 29360, De Bardeleben Marine Corp. v. United States

Docket Nº:29360.
Citation:451 F.2d 140
Party Name:DE BARDELEBEN MARINE CORP., As Successor in Interest to Blue Stack Towing Company, et al., Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
Case Date:September 08, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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451 F.2d 140 (5th Cir. 1971)

DE BARDELEBEN MARINE CORP., As Successor in Interest to Blue Stack Towing Company, et al., Plaintiffs-Appellees,


UNITED STATES of America, Defendant-Appellant.

No. 29360.

United States Court of Appeals, Fifth Circuit.

Sept. 8, 1971

John L. Briggs, U. S. Atty., Tampa, Fla., Michael Marks Cohen, Morton Hollander, Daniel Joseph, U. S. Dept. of Justice, Washington, D. C., William D. Ruckelshaus, Asst. Atty. Gen., for defendant-appellant.

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Brendan P. O'Sullivan, Tampa, Fla., Fowler, White, Gillen, Humkey & Kinney, P. A., Tampa, Fla., of counsel, for plaintiffs-appellees.

Before JOHN R. BROWN, Chief Judge, TUTTLE and GODBOLD, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This case is a novelty. It presents for our consideration such seemingly disparate questions as (i) the overlap of the Federal Tort Claims Act (FTCA) and the Suits in Admiralty Act (SIA) and (ii) the duty of the United States as cartographer. The Government presents an impressive array of theories which would preclude it from any liability. Though we reject practically all of them, we nonetheless reverse and hold that the Government should escape unscathed.

In the Beginning

In early 1964, Blue Stack Towing Company 1 was in the business of providing tug services in the Tampa Bay area. It owned the tugboat ABBIE-R which on February 8, 1964 was put under the command of Captain K. J. Damewood, a master mariner as well as a licensed Tampa pilot. On February 8, 1964 Coyle Lines, the chartered owner of Blue Stack barges 86 and 93, directed Captain Damewood to remove the phosphateladen barges and to anchor them off Port Tampa dock. Accordingly, ABBIE-R towed the barges and anchored them side by side using each barge's own anchor.

ABBIE-R then returned for the night to its dock in Tampa Terminal. The next day, February 9, ABBIE-R was directed to pick up the barges. In attempting to weigh anchor the captain was informed that the anchor of one of the barges had fouled some submerged object. An attempt to free the anchor ruptured what turned out to be a 4 1/2 inch natural gas pipeline that had been laid in 1962 pursuant to a permit from the Corps of Engineers. A fire and explosion followed, causing damage to ABBIE-R, both barges and personal injuries to the tug's mate.

Dates now become important. The presence of the pipeline was first brought to the attention of seafarers in the Weekly Notice to Mariners No. 11 of March 16, 1963. 2 And its location was clearly marked on the next revision of Coast and Geodetic Survey Chart No. 587 issued as the 14th edition on September 16, 1963. 3 This was announced in Weekly Notice No. 42 of October 19, 1963.

But unfortunately neither of these revised charts was aboard ABBIE-R. What was aboard was the 13th edition of C. and G. Chart No. 587 (December 17, 1962) which admittedly did not reflect

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the pipeline. And here the cause of this whole opinion is precipitated because this chart bore the authorized stamp "CORRECTED THROUGH NOTICE TO MARINERS No. 29, JUL 20, '63 U.S.C. & G.S. WASHINGTON, D. C." Had the corrections through Notice 29 (July 1963) been made, the pipeline announced in Notice No. 11 would have been reflected by hand corrections. 4 Each of Notices 42 and 45 warned that all previous editions of the particular chart, including the one aboard ABBIE-R, were obsolete and should no longer be relied upon.

The Government admitted that C. & G. Chart 587 with the false correction inscription was a misrepresentation. And therein lies the tale.

The Court Acts

The Trial Court found both parties negligent 5 and apportioned the damages resulting from the pipeline explosion, the tugowner to bear 75% and the Government 25%. From this the Government alone has appealed, contending that (i) the claim is defeated by sovereign immunity, but if not then (ii) the Government's liability as a cartographer should be determined by a uniform federal (not the local Florida) rule, and (iii) such Federal rule should not impose liability for issuing a faulty chart. In addition it asserts (iv) contributory negligence for tugowner's use of an obsolete chart and (v) insufficient evidence to support the finding of reliance on the faulty chart. We reject (i), adopt (ii), reject (iii) but do not get to (iv) and (v), since we hold that the Government's duty under the federal standard (iii) for a faulty chart terminates at the time a prudent shipowner reasonably would have learned of the true condition through the advices in a subsequent Weekly Notice to Mariners.

Sovereign Immunity

It is often said that the doctrine of sovereign immunity is a derivative of the common law maxim "The King can do no wrong." But conceptually it is far older. Zeus himself carried an aegis or breastplate, a buckler, and a thunderbolt which made him, the mythological sovereign, immune from all that could beset him. And common law provided its sovereign with the immunity of Zeus. Yet Zeus saw fit to strip himself of this protection by giving it to Athena, whereas modern sovereigns have shown much reluctance to do likewise. Probably more accurately, the reluctance comes from the advocative arm of the Government contending for a restrictive reading of legislative amelioration.

The argument proceeds somewhat along this line. (i) The cause of action here is one of negligent misrepresentation. United States v. Neustadt, 1961, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614. (ii) Under the Federal Tort Claims Act (FTCA) such an action would be barred under the exception to the waiver of sovereign immunity in 28 U.S.C.A. § 2680(h).6 (iii) The limitations of liability in the FTCA are to apply to actions

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brought under amendments to the Suits in Admiralty Act, 46 U.S.C.A. § 742. (iv) Thus, since this complaint would be barred under FTCA, it is likewise barred under the Suits in Admiralty Act.


* * *

Though we agree with the premise that the claim is one of negligent misrepresentation, we disagree with the conclusions that the Government would have us draw.

Pre-1960 Suits in Admiralty Act

Before 1960, the Suits in Admiralty Act, enacted in 1920, permitted a suit against the Government in cases involving Government merchant vessels and Government cargoes "in cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained." Act of March 9, 1920, 41 Stat. 525, 46 U.S.C.A. § 742. The spur for this legislation was the Government's entry into the merchant shipping business with the advent of World War I. Congress felt that the liability of the Government should be coextensive with that of private shipowners and shippers who theretofore had been the primary participants in merchant shipping. 7 All suits under the 1920 SIA (as well as the Public Vessels Act) were under the exclusive jurisdiction of the United States District Courts.

Confusion Compounds Complication

But a serious problem of jurisdiction arose because of the partial overlap of the SIA with the Tucker Act, 28 U.S.C.A. § 1346(a) (2), and the vexing problem of the "merchant" or "public" vessel status since SIA and PVA are mutually exclusive. The Tucker Act provided for concurrent jurisdiction of the District Court and the Court of Claims for contract (and quasi-contract) claims "not exceeding $10,000 in amount." But there was to be "exclusive jurisdiction in the Court of Claims for claims in excess of $10,000." S.Report No. 1894, 86 Cong.2d Sess., 8 1960 U.S.Code Congressional and Administrative News, pp. 3583, 3585.

If the claim was a "contract" claim and exceeded $10,000 the exclusive jurisdiction was in the Court of Claims. If, on the other hand, while apparently a contract claim it was not so in law, then exclusive jurisdiction was in the particular

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District Court(s) prescribed in SIA or PVA depending on whether the claim involved a merchant or public vessel (or government cargo). In claims admittedly "non-contract" great confusion existed in the "merchant" or "public" vessel conflict, especially because of PVA's venue provisions, which were actually jurisdictional.

Complicating all of this was the fact that the character of the claim-contract or non-contract-or the status of the vessel-merchant or public-was shrouded in the law's traditional unpredictability, or at least uncertainty. That meant that it was only when the last bell rang that the critical determination was made. That brought in the problem of statutes of limitations since under the Tucker Act it is six years, while under SIA and PVA it is two years. This uncertainty naturally led the Government's counsel to contend in each case that the claim or vessel was not as contended by libellant or claimant but was something else. This reflex built on the uncertainty which Government proctors could likewise legitimately hold, plus a hope that it would practically work to defeat the claim from passage of time, often led to inconsistent positions. 9

In the face of this confusion even the most sea-sprayed proctor found these concepts as hard to clutch as Macbeth's dagger. Misfilings were not only common but often disastrous, with differences in the limitation period. And if a suit was filed in the wrong court it could not be transferred to the proper one. See, e. g., Senate Report, supra at pp. 3585-86. Like the land-locked lawyer of yesteryear who found his cause lost for failing to distinguish trover and replevin, the most skilled admiralty proctor often did not know when he opened the courthouse door whether the lady or the tiger would emerge, 10 or whether indeed, the courtroom was open at all. Cf. Lincoln Mills of Ala....

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