Drake Towing Co., Inc. v. Meisner Marine Const. Co.

• Decision Date: 16 July 1985
• Docket Number: No. 84-7478,84-7478
• Citation: 765 F.2d 1060
• Parties: DRAKE TOWING COMPANY, INC., Plaintiff-Appellee, Cross-Appellant, v. MEISNER MARINE CONSTRUCTION COMPANY, et al., Defendants-Appellees, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1060

765 F.2d 1060

DRAKE TOWING COMPANY, INC., Plaintiff-Appellee, Cross-Appellant, v. MEISNER MARINE CONSTRUCTION COMPANY, et al., Defendants-Appellees, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.

No. 84-7478.

United States Court of Appeals Eleventh Circuit.

July 16, 1985.

Rehearing and Rehearing En Banc Denied Sept. 13, 1985.

R. Scott Blaze, Civ. Div., Torts Branch, Dept. of Justice, Washington, D.C., for U.S.

Donald C. Radcliff, Mobile, Ala., for Drake.

Appeals from the United States District Court for the Southern District of Alabama.

Before VANCE and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

LEWIS R. MORGAN, Senior Circuit Judge:

The Dauphin Island Bridge crosses the Gulf Intracoastal Waterway, which runs east to west, in Mobile County, Alabama. As found by the district court, the "project channel" in the vicinity of the bridge has a width of approximately 150 feet and runs roughly down the middle of the Waterway. It is subsumed within the Waterway's "navigable channel." The navigable channel, approximately 350 feet wide (including the width of the project channel), is bounded on the north by a line of red buoys and on the south by a series of black buoys. The Army Corps of Engineers is generally responsible for maintaining the navigability of the project channel. In areas of the Waterway outside the project channel, the Corps is responsible for removing only those hazards to navigation known to them.

The bridge incurred extensive damage when Hurricane Frederick hit the Mobile area on September 13, 1979. After the hurricane, the Coast Guard closed the Waterway in the vicinity of the bridge and the Corps surveyed the project channel for obstructions to navigation. The Corps did not survey the area of the Waterway outside the project channel. The Coast Guard replaced in their original positions the buoys that were missing as a result of the hurricane and reopened the Waterway.

By permit dated January 3, 1980, the Coast Guard authorized the State of Alabama to replace the bridge. The plans for the new bridge called for the widening of the bridge's fender system, which was intended to protect the bridge from allisions with vessels navigating through the bridge. The horizontal clearance between the north and south fenders of the old bridge was 180 feet and included the width of the project channel. The clearance of the new bridge was to be 350 feet, but the project width was to remain at 150 feet. Alabama contracted with Meisner Marine Construction Company to demolish the old bridge and Brown & Root, Inc. to build the new one.

Meisner began work in February 1980, using explosives with the knowledge of the Coast Guard. In March, after the removal by Meisner of the fenders and the main concrete support piers behind the fenders, the Coast Guard placed four new, temporary buoys, two immediately to each side of the bridge construction site. Red buoy 12 Bravo was placed to the northwest, black buoy 13 Bravo to the southwest, red buoy 12 Alpha to the northeast and black buoy 13 Alpha to the southeast. The two temporary buoys on either side of the construction site (12 Bravo and 13 Bravo on the west and 12 Alpha and 13 Alpha on the east) were less than 350 feet apart. The other, permanent buoys were more than 350 feet apart. Thus, the temporary buoys were compressed relative to the permanent buoy lines. The Coast Guard made no surveys or soundings before placing these temporary buoys. Meisner completed the removal of the bridge on April 19, 1980, and Brown & Root began construction of the new bridge soon thereafter.

The M/V SILVER CITY, owned by Drake Towing Company, passed eastbound through the construction site on November 7, 1981. Brown & Root had begun construction on the south fender system. As it passed between the future locations of the north and south fenders, the tug struck a submerged object and suffered extensive damage. The district court found that the object struck by the SILVER CITY was a large jagged piece of concrete deposited by the blasting of Meisner in demolishing the concrete piers of the old bridge. Covered by four to five feet of water, it was located approximately thirty feet north of the south fender system, outside the project channel but inside the channel marked by the black buoys. The SILVER CITY draws between six and seven feet of water. The Master Loose Leaf Light List in effect on November 7, 1981, represented that the temporary buoys were in water between seven and twelve feet deep.

Drake filed suit in the Southern District of Alabama against Meisner and Brown & Root on August 17, 1982. It added the United States as a defendant on November 17, basing jurisdiction upon the Suits in Admiralty Act (SAA), 46 U.S.C. Sec. 742. See 28 U.S.C. Sec. 1333. Drake settled with Meisner and Brown & Root before trial for $42,500 and the court dismissed those defendants from the case. After a bench trial in which the United States was the only defendant, the court found as follows:

Originally, the Coast Guard placed buoys 180 feet apart (aligned with, and marking, the width of the old fender system) to mark the waterway. After the hurricane, the Coast Guard reestablished the buoys in their pre-hurricane position. In March of 1980, however, approximately one month before Meisner Marine had completed its work in the area, the Coast Guard relocated the buoys by moving them from their 180 foot width to a new width of 350 feet.

The court proceeded to hold that the Coast Guard breached its duty of due care in relocating the buoys without first determining the safety of the water in the newly-widened navigable channel. Id. at 285. The record does not indicate that the buoy lines were widened. The permanent buoy lines were originally about 350 feet apart. The Coast Guard simply added four new, temporary buoys. The parties agree that this factual discrepancy should not affect our review of the district court's decision.

The district court allocated the liability for Drake's damages as follows: 60 percent to Meisner, 0 percent to Brown & Root, 20 percent to the captain of the SILVER CITY and 20 percent to the United States. Determining Drake's total damages to be $51,951.52, the court entered judgment against the United States for $10,390, 20 percent of the total damages. Finally, the court denied Drake's request for prejudgment interest.

The government argues on appeal that (1) the district court was without jurisdiction to determine the negligence, if any, of the Coast Guard and (2) the Coast Guard owed no duty to Drake under the circumstances of this case. Drake cross-appeals the allocation of damages and the denial of prejudgment interest.

The Discretionary Function Exception to the Suits in Admiralty Act

During the pendency of this appeal, the Eleventh Circuit held that the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. Sec. 2680(a), applies to suits under the SAA. Williams v. United States, 747 F.2d 700 (11th Cir.1984), aff'g and adopting Williams ex rel. Sharpley v. United States, 581 F.Supp. 847, 852 (S.D.Ga.1983). When applicable, that exception abrogates federal subject matter jurisdiction under the SAA. See Williams, 581 F.Supp. at 848, 854, 855. The United States therefore argues on appeal that the discretionary function exception bars this suit. See Cruz v. Hauck, 515 F.2d 322, 327 (5th Cir.1975), cert. denied, 424 U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 322 (1976); United States Shipping Board Emergency Fleet Corp. v. South Atlantic Dry Dock Co., 19 F.2d 486, 488 (5th Cir.1927); C. Wright & A. Miller, Federal Practice and Procedure, Sec. 1393, at 864-66 (1969).

The SAA provides the sole jurisdictional basis for admiralty claims against the United States. Williams, 581 F.Supp. at 855 (citing McCormick v. United States, 680 F.2d 345, 349 (5th Cir.1982)). After Williams, therefore, the United States is not subject to maritime tort claims based upon the alleged misfeasance or nonfeasance of "discretionary functions" by federal agencies or employees. 28 U.S.C. Sec. 2680(a). The issue in this case is whether the Coast Guard's failure to determine the safety of the water before placing the temporary buoys is actionable.

"[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), --- U.S. ----, ----, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660, 674 (1984). A governmental act is discretionary and therefore shielded from liability if it is performed "at a planning rather than operational level and involve[s] considerations more or less important to the practicability of the Government's ... program." Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 971, 97 L.Ed. 1427 (1953); see Varig, --- U.S. at ----, 104 S.Ct. at 2768, 81 L.Ed.2d at 678 (challenged government decisions affected "feasibility and practicality of government's regulatory program"); Payne v. United States, 730 F.2d 1434, 1437 (11th Cir.1984) (challenged governmental decision not to make study "inherent in the policy and planning decision" to redesign waterway). The government may be sued, however, for negligence in the nondiscretionary execution of discretionary decisions. Payton v. United States, 679 F.2d 475, 480 (5th Cir. Unit B 1982) (en banc); see Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955). The ultimate determination is "the nature and quality of the discretion involved in the act complained of." Smith v. United States, 375 F.2d 243, 246 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). For the government to show merely that some choice was involved in the decisionmaking process is insufficient to activate the discretionary function exception. J.H. Rutter Rex Manufacturing Co. v. United States,...