American Boat Co., Inc. v. Unknown Sunken Barge
| Decision Date | 02 September 2003 |
| Docket Number | No. 1:01-CV-21-RWS.,1:01-CV-21-RWS. |
| Citation | 299 F.Supp.2d 944 |
| Parties | AMERICAN BOAT COMPANY, INC.; Underwriters Insurance Co; Navigators Insurance Co., Plaintiffs, v. UNKNOWN SUNKEN BARGE; Owner of Unknown Sunken Barge; Unknown Tower of Unknown Sunken Barge; and the United States of America, Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
Michelle T. Delemarre, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, Joseph M. Landolt, Office of U.S. Attorney, St. Louis, MO, for U.S.
Plaintiff American Boat Company, Inc. ("American Boat") owns the towboat M/V NAVIGATOR. American Boat alleges that Defendant United States of America ("United States") was negligent in its duty to maintain the navigable channel of the lower Mississippi River. Specifically, American Boat alleges that the United States failed to warn of or to remove an obstruction in the Mississippi River which damaged the M/V NAVIGATOR.
The United States has filed a motion for summary judgment for lack of subject matter jurisdiction. The United States argues that its decision(s) to mark or remove obstructions from the river is free from judicial scrutiny as a discretionary function exception to the Suits in Admiralty Act. The United States claims the maintenance work on the navigable channel of the Mississippi River is also immune from scrutiny under the discretionary function exception.
Because the United States' conduct is protected by the discretionary function exception I lack subject matter jurisdiction to hear this claim. The United States Motion for Summary Judgment will be granted.
The Mississippi River Flood Control Act of 1928 authorized the U.S. Army Corps of Engineers ("Corps") to construct and maintain channel stabilization improvements to the Mississippi River. 33 U.S.C. § 702a et seq.
In addition to the Corps authority to maintain the waterway, the United States Coast Guard's mission is to protect the nation's ports and waterways. The United States Coast Guard "may establish, maintain and operate aids to maritime navigation" in furtherance of that mission. 14 U.S.C. § 81.
The Memphis District of the Corps is responsible for maintenance of roughly three hundred and fifty miles of the Mississippi River including the location at issue here known as Little Cypress Bend. The M/V1 NAVIGATOR, a 7,200 horsepower towboat measuring 192 feet by 52.1 feet, sank in the general area of Little Cypress Bend.
In 1964, the Corps conducted riverbank grading and shore line preservation maintenance on Little Cypress Bend including the placement of revetment2 which extends along the Mississippi river from Miles 859.7 to 866.5.
In December, 1968 the Waterways Journal reported the sinking of a barge at Mississippi River Mile 867.3, on the right descending bank, outside the navigable channel. The article reported that a tug boat was present, but there was no indication if the barge was scuttled, removed or abandoned. Coast Guard records related to this incident were destroyed in 1997 consistent with the Coast Guard's paper management procedures.
The Coast Guard published a notice identifying the location of a sunken barge at Mississippi River Mile 865.5. The notice was published in the Local Notice to Mariners Wreck Listing beginning in April, 1979 until February, 1987. The Local Notice to Mariners Wreck Listing ceased publication in 1987.
A Corps of Engineers Wreck List for the Memphis District listed a submerged barge, owner unknown, at Mississippi River Mile 865.7 in the right descending side of the navigable channel. The date of this Wreck List is unknown.
In January 1981, a tug boat reported to the Coast Guard that it struck a submerged object at approximately Mississippi River Mile 865.5. The Coast Guard located an object at Mile 865.7 and marked it with a buoy for six weeks. The Coast Guard broadcast Local Notices to Mariners noting the obstruction, the placement of a buoy and the buoy's subsequent removal.
The Corps of Engineers and the Coast Guard entered into a Memorandum of Agreement (MOA) in October 1985 which took effect in early 1986. This MOA was designed to improve "efficiency and effectiveness" of the two agencies specific to their duties to mark and remove obstructions to navigation.
During a period of low river levels in July, 1988, the Coast Guard issued Local Notices to Mariners advising of a sunken barge at Mississippi River Mile 865.2. The Coast Guard placed a buoy at the site at that time. The buoy remained in place for six weeks. A total of six Notice to Mariner messages were issued which identified an obstruction at Mile 865.2 (Nos. 28-88 through 33-88).
The Corps surveys more than 60% of the Mississippi river bed every year to evaluate the condition of the navigable channel. The 1995 survey resulted in maintenance work on the revetment supporting the riverbank at Little Cypress Bend. The Corps conducted two additional, more detailed surveys3 of the river bottom and river bank prior to beginning any maintenance work. None of the three surveys revealed an underwater obstruction. The repair work to support the river bank included placing articulated concrete mattress (ACM)4 along the riverbank. The branch of the Corps that did the maintenance work on the riverbank in 1995, was not aware of the wreck list maintained by the Memphis District of the Corps.
During another period of low river levels in November and December of 1999, several vessels reported that they struck bottom between Mile 865 and 866. The Coast Guard issued Local Notice to Mariners about this hazard beginning in November 1999 (Nos. 48-99, 01-00, 02-00 and 05-00). The last of those was published on February 1, 2000.
On February 15, 2000, the M/V NAVIGATOR and the M/V EASTERN were pushing 30 barges upriver. The M/V NAVIGATOR was approximately 100 feet from the right descending bank at approximately Mile 865.7 when it struck a submerged object causing the M/V NAVIGATOR to take on water and eventually sink. One of the barges was also damaged by a submerged object.
One month later, in March 2000, a submerged hopper barge was discovered by a marine salvage company in the area where the M/C NAVIGATOR struck a submerged object. The Corps confirmed a sunken object at Mile 865.2, most likely a hopper barge, with a multi-beam hydrolic survey in April, 20015. The Corps then decided to remove the sunken barge. A sunken hopper barge, located underneath the ACM, was removed at Mile 865.2.
American Boat filed this civil suit against the United States Army Corps of Engineers and the United States Coast Guard alleging that the failure to mark or remove the sunken barge and for creating an obstruction by overlaying ACM over the sunken barge. The United States argues that any decisions made regarding the marking and removing of the sunken barge are immune from scrutiny under the discretionary function exception to the Suits in Admiralty Act.
When considering a motion for summary judgment, the Court must determine whether the record, when viewed in the light most favorable to the non-moving party, shows any genuine issue of material fact. Fed.R.Civ.P. 56(c). See generally, Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record, which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. There is, however, no express or implied requirement in Rule 56 that the moving party must support its motion with affidavits or other materials negating the opponent's claim. Id. The burden is not on the moving party to produce evidence showing the absence of a genuine issue of material fact, even with respect to an issue on which the nonmoving party bears the burden of proof. Id. at 325, 106 S.Ct. 2548. Instead, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. As long as the record before the court demonstrates that there is no genuine issue of material fact, summary judgment should be granted. Id. at 323, 106 S.Ct. 2548.
When faced with a motion for summary judgment meeting the standard set forth above, the non-moving party may not rest upon the mere allegations or denials of its pleadings alone, but must introduce affidavits, depositions, answers to interrogatories, or admissions on file designating specific facts showing that there is a genuine issue of material fact for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Jetton v. McDonnell Douglas, Corp., 121 F.3d 423, 427 (8th Cir.1997); Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir.1987). Further, a plaintiff facing a motion for summary judgment must designate specific facts showing a genuine issue of material fact on each essential element of his claim. Id.
The United States is not subject to suit unless it has consented to be sued. Miller v. Tony and Susan Alamo Found., 134 F.3d 910, 915 (8th Cir.1998). American Boat brings its claim against the United States under the Suits in Admiralty Act ("SAA"), 46 U.S.C. § 741 et seq. This Act allows parties to bring all maritime claims against the United States under the admiralty jurisdiction of the federal courts.
The SAA is a derivative of the Federal Tort Claims Act ("FTCA") 28 U.S.C. § 1346(b) which generally authorizes suits against the...
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