McCormick v. U.S.

Decision Date25 June 1982
Docket NumberNo. 79-2144,79-2144
Citation680 F.2d 345
PartiesJames E. McCORMICK and Carol Ann McCormick, etc., et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. . *
CourtU.S. Court of Appeals — Fifth Circuit

Clayton J. M. Adkinson, DeFuniak Springs, Fla., for plaintiffs-appellants.

Nicholas P. Geeker, U. S. Atty., Pensacola, Fla., Stephen Leach, Trial Atty., Debra J. Kossow, Torts Branch, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion May 18, 1981, 645 F.2d 299 (5th Cir. 1981))

(June 25, 1982)

Before THORNBERRY, ANDERSON, and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

We GRANT the appellee's petition for rehearing and VACATE our prior panel opinion, McCormick v. United States, 645 F.2d 299 (5th Cir. 1981). No member of this panel nor judge of this administrative unit in regular active service having requested that the court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16; Fifth Circuit Judicial Council Resolution of January 14, 1981), the suggestion for Rehearing En Banc is DENIED.

In our original panel opinion we held that the 1960 Amendments to the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, did not bring the appellants' maritime tort claims against the United States within the scope of the SAA, and that therefore the appellants could maintain suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. Thus, we reversed the district court's dismissal of appellants' action for failure to file the complaint within the two-year statute of limitations contained in the SAA. Upon reflection, we have concluded that our prior holding was in error, but that the district court nevertheless should be reversed for other reasons. Therefore, we vacate our original opinion in this case, reported at 645 F.2d 299, and substitute the following opinion in its place:

This is an appeal from a district court order dismissing the appellants' complaint for lack of subject matter jurisdiction. The facts of the case are simple and undisputed for purposes of this appeal. Early on the morning of August 22, 1976, James E. McCormick and a friend were traversing the waters of the Choctawhatchee Bay in Florida near the United States Army's Fort Rucker Recreational Area, which is located on the north shore of the Bay. McCormick and his friend were in a small pleasure boat owned and operated by McCormick. At approximately 4:30 a. m., the boat struck an unmarked piling near the outer end of a pier extending from the recreational area into the Bay. Appellants assert that the piling was "unlawfully placed and improperly constructed by the United States Army so as to impede and create a hazard for those navigating the waters of the Choctawhatchee Bay." Record at 3-4.

Appellants submitted claims for damages to the Department of the Army on January 25, 1978, and on July 21, 1978. 1 Appellants apparently followed this course of action because they believed that their claims were governed by the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, which requires submission of a claim for damages to the appropriate administrative agency as a precondition to filing suit in court. 2 28 U.S.C. § 2675(a). The Department of the Army denied appellants' claims on September 22, 1978, on the ground that administrative authority to settle the claims had expired on August 22, 1978, the second anniversary of the accident. 3

The appellants thereafter filed a complaint in the United States District Court Three issues are presented in this case. First, the appellants contend that the district court erred by finding that this case falls within the admiralty jurisdiction. Second, the appellants assert that, even if this is an admiralty case, the appropriate statute under which this action arises is the Federal Tort Claims Act rather than the Suits in Admiralty Act. Finally, the appellants contend that, if this case arises under the Suits in Admiralty Act, the district court erred by finding that the two-year statute of limitations in the SAA was not tolled during the time that appellants' claims were pending before the Department of the Army. For the reasons that follow, we hold that this case falls within the admiralty jurisdiction and is actionable exclusively under the SAA, but that the district court incorrectly held that the SAA's limitations provision cannot be tolled.

for the Northern District of Florida on November 6, 1978. The complaint alleged jurisdiction under the Federal Tort Claims Act. In its answer, the government denied that the action arose under the FTCA, and alleged that jurisdiction could lie, if at all, only under the Suits in Admiralty Act (SAA), 46 U.S.C. §§ 741-752. The government then filed a motion to dismiss the action for lack of subject matter jurisdiction because the complaint was not filed within the two-year limitation period prescribed by the SAA. 46 U.S.C. § 745. The district court granted the motion and dismissed the action. The plaintiffs then timely filed a notice of appeal.

ADMIRALTY JURISDICTION

The appellants' first contention is that the district court erred by holding that this case falls within admiralty jurisdiction. A tort claim is maritime in nature and thus within the admiralty jurisdiction of the federal courts when the alleged wrong (1) occurs on navigable waters and (2) bears a significant relationship to traditional maritime activity. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972). The appellants assert that neither of these two requirements are satisfied in this case.

First, appellants argue that the collision between McCormick's boat and the piling did not occur on navigable waters. Although appellants concede that the Gulf Intracoastal Waterway (GIW) runs through the Choctawhatchee Bay and that the GIW is navigable, they claim that the collision occurred outside the GIW in a portion of the Bay that is close to shore and not navigable. It has long been established, however, that the jurisdiction of the admiralty courts over navigable waters extends from shoreline to shoreline. See, e.g., United States v. Ray, 423 F.2d 16, 19 n.4 (5th Cir. 1970) ("The fact that a portion of a body of water is nonnavigable does not affect the legal character of general navigability of the area."); United States v. Turner, 175 F.2d 644, 667 (5th Cir.), cert. denied, 338 U.S. 851, 70 S.Ct. 92, 94 L.Ed. 521 (1949) (no distinction permitted between shallows and depths of navigable waters); 2 Am.Jur.2d, Admiralty § 22. Moreover, appellants' argument springs a serious leak in view of the fact that McCormick was actually navigating the waters of the Bay when the collision occurred. Therefore, we must reject this contention and hold that the collision occurred on navigable waters.

Appellants also contend that the actions involved here do not bear a significant relationship to traditional maritime activity. We must reject this position as well. In Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), cert. denied sub nom. Chicot Land Co. v. Kelly, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed.2d 558 (1974), this court articulated several factors to be considered in determining whether the required maritime nexus exists: "the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law." Id. at 525. Applying these factors, the Kelly court found a maritime nexus to exist for several reasons: (1) because the vehicle involved was a boat, the function of which is "transportation across navigable waters, a traditional role of watercraft"; (2) because the injured party was the pilot, "the person

responsible for the safe navigation of the river"; and (3) because one traditional role of admiralty has been to furnish remedies for those injured while traveling on navigable waters. Id. at 525-26. All three reasons supporting the finding of a maritime nexus in Kelly are equally applicable in this case. Therefore, because the accident involved here occurred on navigable waters and the required maritime nexus is present, we hold that the district court was correct in its conclusion that this case falls within the admiralty jurisdiction. 4

SAA or FTCA?

Appellants contend that this case is actionable under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680. Section 2680(d) of the FTCA provides, however, that the FTCA "shall not apply to ... (a)ny claim for which a remedy is provided by (the Suits in Admiralty Act (SAA), 46 U.S.C. §§ 741-752)." Therefore, appellants' assertion of jurisdiction under the FTCA is correct only if their claims do not fall within the coverage of the SAA.

Analysis of this issue is clarified by a brief review of the history of the SAA and a related statute, the Public Vessels Act, 46 U.S.C. §§ 781-790.

Prior to 1916, the doctrine of sovereign immunity barred any suit by a private owner whose vessel was damaged by a vessel owned or operated by the United States. Recognizing the inequities of denying recovery to private owners and the difficulties inherent in attempting to grant relief to deserving private owners through private Acts of Congress, Congress provided in the Shipping Act, 1916, that Shipping Board vessels employed as merchant vessels were subject to "all laws, regulations, and liabilities governing merchant vessels." 39 Stat. 730, 46 U.S.C. § 808. In The Lake Monroe, 250 U.S. 246, 39 S.Ct. 460, 63 L.Ed. 962 (1919), (the Supreme) Court held that the Shipping Act had subjected all Shipping Board merchant vessels to proceedings in rem in admiralty, including arrest and seizure. Congress,...

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