Faust v. South Carolina State Highway Dept.
| Decision Date | 13 December 1983 |
| Docket Number | 82-1289,Nos. 82-1288,s. 82-1288 |
| Citation | 721 F.2d 934 |
| Parties | Alean Hester FAUST, Administratrix of the Estate of Charles Lonnie Faust, deceased, Tommy Bennett, Curtis L. Muldrow, Appellees, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Appellant, and United States of America, Defendant. Alean Hester FAUST, Administratrix of the Estate of Charles Lonnie Faust, deceased, Tommy Bennett, Curtis L. Muldrow, Appellees, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Defendant, and United States of America, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Ellison D. Smith, IV, Charleston, S.C. (Long, Smith & Jordan, Charleston, S.C., Daniel R. McLeod, Atty. Gen., John M. Cox, Asst. Atty. Gen., Columbia, S.C., Amy Gibson, Staff Atty., Barnwell, S.C., on brief), for appellant S.C. State Highway Dept.
Allen vanEmmerik, Dept. of Justice, Washington, D.C. (J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Henry Dargan McMaster, U.S. Atty., Columbia, S.C., Mark A. Dombroff, Director, Torts Branch Civil Div., Dept. of Justice, Washington, D.C., Stan Barnett, Asst. Dist. Counsel, Dept. of the Army, Charleston, S.C., on brief), for appellant United States.
Douglas Hinds, Georgetown, S.C. (Hal M. Strange, Hinds, Cowan & Strange, Georgetown, S.C., Reginald C. Brown, Jr., J. Anderson Berly, III, Hyman, Morgan, Brown, Jeffords, Rushton & Fallon, Florence, S.C., D.A. Brockinton, Jr., Brockinton, Brockinton & Smith, Charleston, S.C., on brief), for appellees.
Before WINTER, Chief Judge, WIDENER, Circuit Judge, and WYZANSKI, * Senior District Judge.
The decedent of the plaintiff administratrix was killed and the two other plaintiffs were injured when, on the night of December 11, 1977, the decedent's motorboat collided with a steel guide cable used by the South Carolina State Highway Department (Highway Department) in the operation of a cable ferry across a canal in the Atlantic Intracoastal Waterway. Plaintiffs sued the United States and Highway Department in admiralty alleging that they were joint tortfeasors in the operation and maintenance of the ferry. The district court gave judgment to the administratrix against both defendants for $499,069.00 and to the other plaintiffs for $18,000.00 and $5,000.00, respectively, with prejudgment interest. Both defendants appeal.
We reverse. We conclude that there was no negligence on the part of the United States, and it is entitled to judgment as a matter of law. While we conclude that there may have been negligence on the part of the Highway Department, as well as contributory negligence on the part of the decedent and the other plaintiffs, we think it necessary to reexamine our decision in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001 (4 Cir.1968), on which the liability of Highway Department was predicated. We conclude that Lauritzen has been sufficiently undermined by subsequent Supreme Court decisions that it should no longer be followed. As a consequence we conclude that under the Eleventh Amendment Highway Department is not amenable to suit and we reverse the judgment against it.
In the view we take of the case, the facts need not be elaborately stated.
On the night of the tragedy--a Sunday, the decedent, Charles Lonnie Faust, together with plaintiffs, Tommy Bennett and Curtis L. Muldrow, went fishing in Faust's eighteen-foot open inboard/outboard motor boat in unfamiliar waters, near Georgetown, South Carolina. They launched the boat from a public landing on the Sampit River to which they had been directed and they fished in an area to which they were taken by a professional fisherman who accompanied them after they encountered him on the water in his disabled boat. After fishing for several hours and collecting shellfish, they returned to their guide's disabled boat where he left them. He gave them directions how to return whence they had come, but because they erroneously identified their point of origin, he directed them to a landing in close proximity to one of the landings of the South Island ferry. In addition to no familiarity with the waters of the area, they neither had, nor had they consulted, any maps or charts.
The South Island ferry is a cable operated ferry, operating across a canal of the Intracoastal Waterway. Since 1940, it has employed a separate 5/8 inch steel guide cable. When not in operation, the ferry is moored on the east or island side of the canal and the guide cable is slack and rests on the bottom. When the ferry is in operation the guide cable is raised to four feet above the water's surface.
Prior to December 11, 1977, there had been a number of collisions between boats and the ferry cable. 1 There was an elaborate system of warnings about the hazard of the ferry and the cable. When the ferry is in operation various warning lights and sirens are activated. Two signs, having flashing red lights and flood lights, were posted on either side 500 feet northeast of the crossing, the direction from which Faust approached, as well as south of the crossing. The crossing is approximately 300 feet wide. The signs variously advise that there is a cable ferry 500 feet ahead, that the cable is above water when the ferry is in operation and that mariners should stop on red. The sides of the ferry, painted with luminous paint in a black and orange striped pattern, also bear signs reading "Cable Ferry--Stop on Red". Some of these warning devices were installed after the litigation in Doyle, see supra note 1, when a district judge voiced sharp criticism of the hazard. Other warning devices recommended by the Corps of Engineers had not yet been established. On December 11, the United States Corps of Engineers was also pressing for replacement of the ferry and South Carolina was in the process of procuring a self-propelled ferry.
After the guide was returned to his disabled boat, Faust entered the Intracoastal Waterway and proceeded down the middle of the channel at a planning speed of 15-25 m.p.h. It was dark; the weather was good; and the tide, against which Faust was proceeding, was rising. The ferry was in operation, but the Faust boat passed the warning signs without decrease in speed and struck the cable. Faust was killed and his passengers injured. Apparently the speed of the boat drowned out the sirens which were sounding.
The district court found liability on the part of the United States. Since it was an uncontested fact that the cable ferry operated in navigable waters of the United States, the district court reasoned that the United States was "charged by law with various responsibilities and duties concerning the cable ferry" which the United States failed to carry out. Specifically the district court held that the Coast Guard failed to carry out its duty under 14 U.S.C. Sec. 86 to mark properly an obstruction in navigable waterways. The district court also held that the Coast Guard breached its duty, imposed by case law, to warn mariners of hidden dangers to navigation. The Corps of Engineers, so the district court ruled, had a duty under 33 U.S.C. Secs. 401 et seq. to remove obstructions to navigation in the navigable waters which it failed to perform when it took no steps to ensure that Highway Department had supplemented its warning system or removed the cable. Finally, the district court appeared to conclude that the Corps of Engineers had breached its common law duty to remove obstructions or to require that they be properly marked.
We do not doubt that if the United States, through the Coast Guard or the Corps of Engineers, breached some duty imposed by statute or the common law by failing to mark the cable adequately or to require its removal, plaintiffs would have a meritorious cause of action against it under the Suits in Admiralty Act (SIAA). See 46 U.S.C. Sec. 742; 2 Lane v. United States, 529 F.2d 175 (4 Cir.1975) (). The question however, is to determine if the Coast Guard and Army Corps of Engineers' actions or inaction violated some statutory or common law duty. As a source of such a duty, plaintiffs and the district court cite two statutes--14 U.S.C. Secs. 81 and 86, 3 which empower the Coast Guard to establish aids to navigation and mark obstructions, and 33 U.S.C. Sec. 403, which requires Army authorization of structures placed in navigable waters--and the common law duty, recognized in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), of one who undertakes to warn the public of a danger to do so in a careful manner. We consider these sources seriatim.
Section 81 states, in pertinent part, that "[i]n order to aid navigation and to prevent disasters, collisions and wrecks of vessels ... the Coast Guard may establish, maintain, and operate: (1) aids to maritime navigation required to serve the needs of ... the commerce of the United States ...," while Sec. 86 states, insofar as pertinent, that "the Secretary may mark for the protection of navigation any sunken vessel or other obstruction existing on the navigable waters ... in such manner and for so long as, in his judgment, the needs of maritime navigation require." It further provides that the Secretary may charge the owner of the obstruction for costs incurred in marking it. Prior to 1965 Sec. 86 was phrased in mandatory terms, and the Army was charged with marking abandoned wrecks.
We have twice had occasion to rule on the duty imposed on the Coast Guard by these two sections. In Lane v. United States, 529 F.2d 175 (4 Cir.1975), we held that the United States could be held liable for damage caused to a pleasure boat by a collision with a poorly marked sunken barge. We concluded that while, after the 1965 amendments, the duty to mark was...
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