Capt Chance, Inc. v. U.S.

• Decision Date: 20 June 2007
• Docket Number: No. 8:06-cv-560-T-27MSS.,8:06-cv-560-T-27MSS.
• Citation: 506 F.Supp.2d 1196
• Parties: CAPT CHANCE, INC., Leonard Shrimp Producers, Inc., St. Paul Fire & Marine Insurance Co., and Zurich American Insurance Co., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Florida

506 F.Supp.2d 1196

CAPT CHANCE, INC., Leonard Shrimp Producers, Inc., St. Paul Fire & Marine Insurance Co., and Zurich American Insurance Co., Plaintiffs, v. UNITED STATES of America, Defendant.

No. 8:06-cv-560-T-27MSS.

United States District Court, M.D. Florida, Tampa Division.

June 20, 2007.

COPYRIGHT MATERIAL OMITTED

Carl Richard Nelson, Eric Christopher Thiel, Fowler White Boggs Banker P.A., Tampa, FL, for Plaintiffs.

Bruce Allan Ross, U.S. Dept. of Justice, Washington, DC, Charles T. Harden, III, U.S. Attorney's Office, Tampa, FL, for Defendant.

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT are: 1) Plaintiffs' Motion for Summary Judgment on the Issue of Liability (Dkt.19), to which Defendant has responded in opposition (Dkt.24); and 2) Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction or, Alternatively, for Summary Judgment (Dkt.21), to which Plaintiff has responded in opposition (Dkt.22). Upon consideration, Defendant's motion is GRANTED, and Plaintiffs motion is DENIED.

Background

Plaintiffs filed this admiralty action pursuant to the Suits in Admiralty Act (SAA), 46 U.S.C. §§ 30901 et seq., contending that the United States Coast Guard was negligent in locating, marking, and notifying mariners of a submerged channel marker, which they allege caused the sinking of Plaintiffs' vessel. In the instant motions, the parties dispute whether the Coast Guard's actions fall within the "discretionary function exception" to the United States' statutory waiver of sovereign immunity.

The CAPT CHANCE was a commercial fishing vessel used to catch shrimp. (Pulsifer Dep. at 108). Plaintiff Capt. Chance, Inc. was the sole owner of the CAPT CHANCE. (Dan Leonard Dep. at 36). Plaintiff Leonard Shrimp Producers, Inc. operated the CAPT CHANCE. (Dan Leonard Dep. at 13). Plaintiffs St. Paul. Fire & Marine Insurance Co., Zurich American Insurance Co., and Great American Insurance Company of New York provided insurance coverage for the CAPT CHANCE and Leonard Shrimp. (Dan Leonard Dep. at 107, Exh. 7; Price Aff. ¶¶ 3-4).

On November 30, 2005, the Coast Guard received a call from another vessel, the F/V JULIE ANN, reporting that the Anclote Anchorage South Entrance Daybeacon 10 (hereinafter "Daybeacon 10") was missing. (Dkt. 20-9 at 20).¹ The Daybeacon 10 was a fixed aid to navigation positioned and maintained by the Coast Guard.² (Dkt. 12, ¶ 6; Estades Dep., Exh. 7). That same day, the Coast Guard dispatched a Trailerable Aids to Navigation Boat ("TANB boat"), led by Petty Officer Alfonso Estades, which determined that the Daybeacon 10 was missing. (Dkt. 20-9 at 2, 20; Estades Dep. at 48). The crew was not able to use its AAPS positioning software to locate the Daybeacon 10, due to a corroded wire on the boat's laptop computer. (Estades Dep. at 66). Instead, the crew conducted a wire sweep of a defined area, using an electronic chart plotter, water depth, channel alignment, the chart, and visual channel alignment. (Estades Dep. at 72, 92; Dkt. 20-9 at 20). The crew could not locate the Daybeacon 10. They deployed a temporary lighted buoy, marked "Wreck 10," on the assigned position of the Daybeacon 10, according to the chart plotter. (Dkts. 20-9 at 20; 20-10 at 2; Estades Dep. at 89-90). The buoy contained a quick flashing light to warn mariners of the downed aid. (Estades Dep. at 89).

The Coast Guard issued Broadcast Notices to Mariners between November 30, 2005 and December 13, 2005, which advised that the Daybeacon 10 was missing and that a temporary lighted buoy was set in the Daybeacon 10's assigned position. (Dkt. 21-5 at 2). The Coast Guard also published in its weekly Local Notice to Mariners that the Daybeacon 10 was temporarily replaced by a lighted buoy from December 6, 2005 until it was repaired in June 2006. (Dkt. 21-5 at 2-3).

On January 17, 2006, Captain Donald Leonard of the CAPT CHANCE and one other crewman were returning home after three weeks of shrimping in the Florida Keys. (Don Leonard Dep. at 17). In the early morning, the CAPT CHANCE struck the submerged remains of the Daybeacon 10 and, sank. (Dkt. 20-10 at 5). On January 19, 2006, the TLRB was found 84.81 yards from the assigned position of the Daybeacon 10. (Dkt. 20-10 at 5).

Standard³

Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law: Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56. "An issue of fact is `material' if, under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir.2004). "An issue of fact is `genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Id. at 1260. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004).

Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by, affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. Plaintiffs evidence must be significantly, probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Court will not weigh the evidence or make findings of fact. Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court's role is limited to deciding whether there is sufficient evidence upon which a reasonable juror could find for the non-moving party. Id.

Discussion

The United States enjoys sovereign immunity from suit unless it consents to be sued or waives sovereign immunity. United States v. Nordic Village, Inc., 503 U.S. 30, 34-35, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). If sovereign immunity applies, this Court lacks subject matter jurisdiction. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). The Suits in Admiralty Act, 46 U.S.C. §§ 30901 et seq., pursuant to which Plaintiffs filed this case, includes an explicit waiver of sovereign immunity. See 46 U.S.C. § 30903.⁴ However, the government's waiver of sovereign immunity in admiralty actions is subject to the "discretionary function exception" identified in the Federal Tort Claims Act, 28 U.S.C. § 2680(a). Id. at 1204.⁵

The discretionary function exception essentially narrows the waiver of sovereign immunity where a party challenges public policy-driven conduct and governmental decisionmaking. United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). When determining whether the discretionary function exception bars suit against the United States, a two-part test is implemented. See Cranford v. United States, 466 F.3d 955, 958 (11th Cir.2006). First, the court considers the nature of the conduct and determines whether it involves "an element of judgment or choice." Id. (citations omitted); Gaubert, 499 U.S. at 322, 111 S.Ct. 1267. "The requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive." Gaubert, 499 U.S. at 323, 111 S.Ct. 1267 (quotations and citations omitted). Such a federal statute, regulation, or policy must prescribe "a course of action embodying a fixed or readily ascertainable standard." Hughes v. United States, 110 F.3d 765, 768 (11th Cir.1997) (emphasis in original).

Second, if the conduct at issue involves the exercise of judgment, the court must determine "whether the judgment or choice is grounded in considerations of public policy." Cranford, 466 F.3d at 958. The focus is on the nature of, the conduct and whether it is susceptible to policy analysis Id. It must be determined whether the "judgment is of the kind that the discretionary function exception was designed to shield." See Mid-South Holding Co., Inc. v. United States, 225 F.3d 1201, 1205 (11th Cir.2000).

Plaintiffs contend the United States was negligent in searching and failing to locate the Daybeacon 10, in positioning the temporary buoy, and in issuing warnings to mariners. Plaintiffs place primary reliance on provisions contained in the Coast Guard's "Aids to Navigation Manual" (ATON Manual), which they contend supply the requisite "fixed or readily ascertainable standards."

An agency's internal guidelines are relevant to the discretionary function analysis. Gaubert, 499 U.S. at 324, 111 S.Ct. 1267; Phillips v. United States, 956 F.2d 1071, 1076 (11th Cir.1992). With respect to the ATON Manual, however, the Eleventh Circuit has specifically stated:

[t]he Aids to Navigation Administration Manual (ATON Manual), which contains internal guidelines of the Coast Guard regarding the marking of wrecks, states that "the Coast Guard retains the discretion to deviate or authorize deviation from" its "requirements." The ATON Manual creates "no duties or obligations to the public to comply with the procedures" described in it, and the ATON Manual states that "no member of the public should rely upon the[] procedures as a representation by the Coast Guard as to the manner of performance of [the] aids to navigation mission." The Melechs and Cranford fail to identify "`a federal statute, regulation, or policy [that]...