B & F Trawlers, Inc. v. U.S.

• Decision Date: 06 April 1988
• Docket Number: No. 87-2572,87-2572
• Citation: 841 F.2d 626
• Parties: , 1988 A.M.C. 1577 B & F TRAWLERS, INC. and International Bank, N.A., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 626

841 F.2d 626

93 A.L.R.Fed. 871, 1988 A.M.C. 1577

B & F TRAWLERS, INC. and International Bank, N.A. Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 87-2572.

United States Court of Appeals Fifth Circuit.

April 6, 1988.

Dennis Sanchez, Brownsville, Tex., James S. Mattson, Key Largo, Fla., for plaintiffs-appellants.

Stephanie J. Grogan, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, JOLLY, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants challenge the district court's dismissal of their complaint filed against the government under the Suits in Admiralty Act ("SIAA"), 46 U.S.C. Secs. 741 et seq., and the Public Vessels Act ("PVA"), 46 U.S.C. Secs. 781 et seq. The issue is whether and under what circumstances these statutes subject the federal government to liability for damaging a vessel apprehended while smuggling marijuana. We REVERSE and REMAND, primarily for the district court to reconsider the government's immunity in light of the discretionary function exception.

I ¹

On February 23, 1985, the Coast Guard cutter DALLAS inspected the F/V STAR TREK in the Gulf of Mexico and discovered that the shrimp vessel was carrying marijuana. The Coast Guard boarding party arrested the captain and crew and directed the STAR TREK toward Guantanamo Bay, Cuba. The STAR TREK met the Coast Guard cutter MESQUITE shortly thereafter, and the MESQUITE began towing the STAR TREK. Around 7:00 p.m. on February 25, a fire broke out on the seized vessel. Officials removed all people from the STAR TREK, and towing continued until 6:40 p.m. the next day, when officials used .50 caliber machine guns to sink the shrimp vessel.

The STAR TREK was owned and operated by B & F Trawlers, Inc., which allegedly had reported to the Coast Guard prior to the above events that the shrimp vessel had been stolen and was missing. According to B & F Trawlers, STAR TREK was valued at $200,000 and was uninsured. A $120,000 loan to B & F Trawlers from International Bank, N.A., was secured by a first preferred ship's mortgage against the shrimp vessel. B & F Trawlers subsequently defaulted on the loan at a time when it owed $120,000 plus accrued interest.

Appellants alleged under the SIAA and PVA that the Coast Guard failed to use due care in the care, custody, and control of the STAR TREK and deliberately and intentionally sank the vessel causing B & F Trawlers to lose a $200,000 vessel and International Bank to lose its loan security. The district court dismissed the action under Fed.Rule Civ.Proc. 12(b)(6), and ordered the case transferred to the U.S. Claims Court, after incorporating the law enforcement exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2680(c), into the SIAA and PVA to preclude appellants' suit. Given this holding, the district court declined to address the government's second contention that because the SIAA and PVA seem to waive immunity only in those situations where the action might have been brought had a private party been involved, these plaintiffs had no cause of action because they could not engage in law enforcement. The court noted in a footnote, however, that the plain language of the SIAA would appear to compel this result. Also, the court did not address whether the FTCA discretionary function exception, 28 U.S.C. Sec. 2680(a), might bar this action.

II

Vessels which are used, or are intended for use, to transport any controlled substances are subject to forfeiture to the government, and all right, title, and interest in the forfeited vessels vest in the government upon commission of the act giving rise to the forfeiture. 21 U.S.C. Sec. 881(a)(4), (h). Statutes under which property used in the commission of criminal offenses is forfeited have consistently been held constitutional. See Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452, reh'g denied, 417 U.S. 977, 94 S.Ct. 3187 (1974).

Normally we would rely on the above authorities to affirm, at least in part, the district court's decision, for it seems anomalous that Congress would take away all property interests in forfeited property and replace them with a tort action. Here, however, the appellants have alleged that they had informed the Coast Guard that the vessel had been stolen. If appellants can prove that the narcotics violation occurred while the STAR TREK "was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States," then the STAR TREK is not subject to forfeiture. 21 U.S.C. Sec. 881(a)(4)(B); see also Calero-Toledo, 416 U.S. at 689-90, 94 S.Ct. at 2094-95. This factual issue must be resolved along with others on remand. ²

III

Regardless whether the STAR TREK was stolen, the Government alleges that appellants do not have a private cause of action for any or all of four reasons. First, it contends that the law enforcement exception to the Federal Tort Claims Act ("FTCA") should be incorporated into the SIAA and PVA to bar this suit. Second, the constitutional doctrine of separation of powers bars this suit. Third, the SIAA and PVA do not waive the government's immunity because the government was performing a function (law enforcement) in which private parties cannot engage. Fourth, the FTCA discretionary function exception, already incorporated into the SIAA and PVA, bars this suit. For reasons which follow, we accept only the last reason as creating an arguable limit on the government's liability.

A. Law Enforcement Exception

The FTCA law enforcement exception preserves governmental immunity from suit for "[a]ny claim arising in respect of ... the detention of any goods or merchandise by any officer of customs or excise or any other law enforcement officer." 28 U.S.C. Sec. 2680(c). The provision is relevant here because Coast Guard officers are also considered customs officers, 14 U.S.C. Sec. 143, and law enforcement officers, 14 U.S.C. Secs. 2, 89.

Neither the Supreme Court nor any other circuit court has been asked to incorporate the FTCA law enforcement exception into the SIAA and PVA. ³ Until we are persuaded otherwise, we decline to do so. Congress enacted the SIAA and PVA in 1920 and 1925, respectively. When Congress enacted the FTCA in 1948, it did not incorporate the numerous liability exceptions therein into the SIAA and PVA. Forty more years have elapsed since the FTCA became law, and Congress still has not modified or amended the SIAA and PVA to incorporate any FTCA exceptions. Confronted with such a lengthy period of legislative silence, we hesitate to rewrite the SIAA and PVA as requested by the government. If the law enforcement exception is to be engrafted into the SIAA and PVA, then the grafting should be done by legislative surgeons, not judicial surgeons. ⁴

The government's reliance in this connection on Kosak v. United States, 465 U.S. 848, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984), is unpersuasive. Kosak merely interpreted and applied the FTCA law enforcement exception literally. Kosak 's policy arguments are made in support of the opinion's statutory construction. Although we sympathize with the policy arguments advanced in Kosak, we lack the will of Congress to implement them into the SIAA/PVA, and the absence of statutory predicate for the exception is controlling.

B. Separation of Powers

The government argues that imposition of liability for damage to property seized pursuant to statutorily prescribed customs enforcement duties would offend the separation of powers doctrine. We acknowledge that the threat of pervasive damage suits under the SIAA/PVA could affect the government's ability to stem the illicit maritime trade in narcotics. Yet, we can also foresee certain situations in which imposition of maritime tort liability would not cripple law enforcement efforts. For example, assume that in their zeal to board their vessel and apprehend a nearby drug-running vessel, Coast Guard crewmen accidentally injure a pedestrian walking on the dock; while leaving the harbor, the Coast Guard vessel brushes against a fishing trawler and causes damage; upon returning with the seized vessel, the tow line breaks and the boat crashes into the dock, causing more property damage and personal injury. The government, cloaked with separation of powers protection, could avoid liability in such scenarios if we held here in broad terms that the tortious conduct occurred as a by-product of the government's protected law enforcement function. Although the facts of our case and the above hypotheticals present far different situations, they illustrate that not all government conduct should be protected under an "end-objective" analysis. We believe the better decision is to avoid cloaking all "law enforcement" activity with protection that is too broad and undefined under a separation of powers analysis.

C. Uniquely Governmental Function Exception

The SIAA waives immunity from suit "[i]n cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained...." 46 U.S.C. Sec. 742. This provision is incorporated into the PVA. See 46 U.S.C. Sec. 782 (suits under the PVA "shall be subject to and proceed in accordance with the provisions of [the SIAA] or any amendment thereof, insofar as the same are not inconsistent herewith...."). One court has construed the SIAA and PVA together to extend jurisdiction only to the range of admiralty cases which might have been maintained had a private person or property been involved rather than the government or its agents, employees, or property. Green v. United States, 530 F.Supp. 17, 19 (N.D.Cal.1981). The government contends that the SIAA and PVA do not...