Bearce v. U.S.

• Decision Date: 20 March 1980
• Docket Number: No. 79-1512,79-1512
• Citation: 614 F.2d 556
• Parties: Marshall BEARCE, Administrator of the Estate of Thomas Bearce, Deceased; Aetna Insurance Company and Leslie Palmer, Jr., Plaintiffs-Appellants, v. UNITED STATES of America and its Subordinate Agencies, The United States Coast Guard and The United States Corps of Engineers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 556

614 F.2d 556

Marshall BEARCE, Administrator of the Estate of Thomas Bearce, Deceased; Aetna Insurance Company and Leslie Palmer, Jr., Plaintiffs-Appellants, v. UNITED STATES of America and its Subordinate Agencies, The United States Coast Guard and The United States Corps of Engineers, Defendants-Appellees.

No. 79-1512.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 23, 1979.

Decided Jan. 4, 1980.

Rehearing and Rehearing In Banc Denied March 20, 1980.

Robert S. Minetz, Chicago, Ill., for plaintiffs-appellants.

Patricia G. Reeves, Appellate Staff, Civil Div., Dept. of Justice, Washington, D. C., for defendants-appellees.

Before FAIRCHILD, Chief Judge, BAUER, Circuit Judge, and VAN DUSEN, Senior Circuit Judge. ^*

VAN DUSEN, Senior Circuit Judge.

This appeal attacks an April 4, 1979, district court judgment in favor of the defendant (the United States), on plaintiffs' claim alleging violation of the Suits in Admiralty Act, 46 U.S.C. Sec. 742, et seq. We affirm the district court's judgment on the ground that the alleged wrongful acts of the Government are not reviewable by a court because these acts are included under an implied 'discretionary function' exception to the Federal Government's waiver of sovereign immunity under the Suits in Admiralty Act. ¹

On the night of May 10, 1975, Thomas Bearce was operating a new, 20-foot, fiberglass speedboat with a 233 h. p. engine in the Chicago harbor on Lake Michigan. The harbor is made out of a series of breakwaters. It has an exterior breakwater which runs roughly parallel to the shore. Ninety-seven feet from the north end of the exterior breakwater there is a four-second flashing green light maintained by the Coast Guard as an aid to navigation. Extending out perpendicular to the shore is another breakwater, the Shore Arm Extension breakwater. Both breakwaters were constructed before 1920; however, a parapet was added to the Shore Arm Extension in 1965, which made this breakwater extend 3.5 feet above the water. The eastern end of the Shore Arm Extension is 400 feet from the northern end of the exterior breakwater. There has never been a light on the Shore Arm Extension, so the 400-foot gap between the two breakwaters has only one light to assist passage at night. This opening is a secondary entrance to the Chicago harbor and is rarely used by commercial vessels. The main entrance has two lights and other navigational aids.

Bearce was an experienced power boat operator who was familiar with the Chicago harbor. He had passed through the gap earlier that day. The district court found that at approximately 10:00 p. m. on the night of May 10, 1975, he was following another boat out of the harbor through the gap, traveling at approximately 30-35 miles per hour. Just before he cleared the breakwater, he swerved to the left and collided with the Shore Arm Extension 20 feet from its eastern end. Presumably Bearce believed he had cleared the breakwater when he changed course. Bearce was instantly killed in the accident and the only passenger in the boat was seriously injured. This action was originally brought by Bearce's survivors, asserting that the Government was negligent in failing to place a light on the eastern end of the Shore Arm Extension, and asserting recovery under the Suits in Admiralty Act and the Federal Tort Claims Act.

At trial, evidence was presented that the Illinois Boating Council had held public hearings attended by the Coast Guard in 1966 concerning the navigational aids needed in the gap. The Coast Guard's report after the hearing noted that the color of the light on the exterior breakwater should be changed from white to green and that a red flashing light should be placed on the end of the Shore Arm Extension. The Coast Guard never acted on the second recommendation, but did change the color of the existing light so that it would be distinguishable from the lights of the city. On the night of May 10, this light was working properly.

The district court entered a judgment for the United States based, inter alia, upon a holding that the Federal Government had not waived its sovereign immunity under the Suits in Admiralty Act in matters involving discretionary functions. ² The court did not rule on the Federal Tort Claims Act claim. We affirm.

I.

The plaintiffs' actions properly arise under the Suits in Admiralty Act, 46 U.S.C. Sec. 742, et seq., ³ United States v. Continental Tuna Corp., 425 U.S. 164, 176 n. 14, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976); Chapman v. United States, 575 F.2d 147 (7th Cir.), cert. denied, 439 U.S. 893, 99 S.Ct. 251, 58 L.Ed.2d 239 (1978). The Suits in Admiralty Act (SIAA) was originally enacted in 1920 as a waiver of sovereign immunity in cases arising out of claims involving United States vessels and cargo. In 1960 the statute was amended to eliminate a variety of jurisdictional problems by bringing all maritime claims against the United States under the admiralty jurisdiction of the federal courts. United States v. United Continental Tuna Corp., supra 425 U.S. at 172-78, 96 S.Ct. 1319. One of the results of the 1960 amendments was to remove maritime claims such as the ones at bar from the coverage of the Federal Tort Claims Act (FTCA). ⁴ However, when the SIAA was amended, the exceptions to the FTCA's waiver of sovereign immunity set out in 28 U.S.C. Sec. 2680 were not restated in the SIAA. Thus, if the exceptions expressed in 28 U.S.C. Sec. 2680 are not implied in suits under the SIAA, the 1960 amendments to the SIAA will have served not only to eliminate jurisdictional difficulties but also to extend the waiver of sovereign immunity in the area of maritime law. This court must determine whether the 1960 amendments to the SIAA were intended to eliminate the discretionary function exception to the waiver of sovereign immunity expressed in the FTCA or whether this exception should be implied into the SIAA.

The discretionary function exception is one of the exceptions provided in the FTCA, 28 U.S.C. Sec. 2680(a). ⁵ The question of whether the discretionary function exception should be implied in the SIAA has been litigated in several circuits, producing a conflict between the First Circuit and the Fourth and Fifth Circuits. The Fourth and Fifth Circuits have refused to imply the discretionary function exception, arguing that Congress should cure the statute if the waiver of sovereign immunity is too extensive. Lane v. United States, 529 F.2d 175, 179 (4th Cir. 1975); ⁶ De Bardeleben Marine Corp. v. United States, 451 F.2d 140, 146 & n. 15 (5th Cir. 1971) (dictum). The First Circuit has adopted the opposite position and has implied a discretionary function exception in the SIAA, Gercey v. United States, 540 F.2d 536, 539 (1st Cir. 1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977). On this record, we agree with the reasoning of the First Circuit in the Gercey case.

In Gercey, supra at 539, the First Circuit persuasively explained its position as follows:

'Unlike the Federal Tort Claims Act, see 28 U.S.C. Sec. 2680(a), the Suits in Admiralty Act does not contain an express exception for harm caused by the exercise of 'discretionary functions,' a category which includes, and probably should be limited to, basic 'policy judgments as to the public interest.' See Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir. 1974); K. Davis, Administrative Law Treatise Sec. 25.08 (1976 Supp.). Although the Suits in Admiralty Act contains no express exception, we think that sound principles demand that the act be construed as subject to such discretionary function exception. See K. Davis, supra, Sec. 25.13 (1958 ed. Sec. 1970 Supp.); L. Jaffe, Judicial Control of Administrative Action, 244 n. 43 (1965). Compare King v. Seattle, 84 Wash.2d 239, 525 P.2d 228 (1974). Were there no such immunity for basic policy making decisions, all administrative and legislative decisions concerning the public interest in maritime matters would be subject to independent judicial review in the not unlikely event that the implementation of those policy judgments were to cause private injuries. That, in our view, would be an intolerable state of affairs, see United States v. Sandra & Dennis Fishing Co., 372 F.2d 189, 195 (1st Cir. 1967), and we decline, in the absence of an express Congressional directive to the contrary, to construe this waiver of sovereign immunity as providing the federal courts with that power.' (Footnote omitted.)

The First Circuit's conclusion is further buttressed by the Supreme Court's opinion in United States v. United Continental Tuna Corp., 425 U.S. 164, 176, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976), where the Court noted that the 1960 amendments to the SIAA were intended to eliminate jurisdictional problems. The Court held that, in light of this limited congressional purpose, it was improper to interpret the 1960 amendments to the SIAA literally so as to effectively repeal the exceptions to the waiver of sovereign immunity included in the Public Vessels Act, 46 U.S.C. Sec. 781, et seq. In light of these authorities, we hold that, on the record in this case, a discretionary function exception is implied in the Suits in Admiralty Act.

II.

The only matter remaining for this court to decide is whether the action of the Government in failing to erect a light at the eastern end of the Shore Arm Extension falls within the discretionary function exception. We have concluded that it does. The Coast Guard has been given discretionary authority to establish aids to navigation. ⁷ Title 14 U.S.C. Sec. 81 states in pertinent part:

'In order to aid navigation and to prevent disasters, collisions, and wrecks of vessels and aircraft, the Coast Guard may establish, maintain and operate:

'(1) aids to maritime navigation required to serve the needs of the armed forces or of the commerce of the United States, . . .' (Emphasis supplied.)

In this case, the acts which plaintiffs assert...