Huber v. U.S.

Citation838 F.2d 398
Decision Date18 March 1988
Docket NumberNo. 86-2574,86-2574
Parties, 25 Fed. R. Evid. Serv. 283 Merle W. HUBER, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. UNITED STATES of America, Counterclaimant/Appellant, v. MONTEREY NAVIGATION COMPANY, INC., Counterclaim Defendant/Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Paul Gary Sterling, Asst. Atty. in Charge, Torts Branch, Civil Div., West Coast Office, U.S. Dept. of Justice, San Francisco, Cal., for defendants-counterclaimant/appellant.

Graydon S. Staring, David W. Condeff and Warren von Bittner, Lillick, McHose & Charles, San Francisco, Cal., for counterclaim defendant/appellee.

Appeal from the United States District Court for the Northern District of California.

Before NORRIS and NOONAN, Circuit Judges, and STEPHENS, * District Judge.

NORRIS, Circuit Judge:

On April 10, 1982, the yacht KUHUSHAN sank in a storm off the coast of Marin County, north of San Francisco Bay. Two of the crew members drowned. The survivor and the decedents' representatives sued the United States Coast Guard and Monterey Navigation Company, the owner of a ship involved in the incident, for negligence. The United States and Monterey Navigation jointly settled with the plaintiffs and brought crossclaims for contribution against each other. The government appeals the district court's judgment in favor of Monterey Navigation. We vacate and remand.

I

The yacht KUHUSHAN, a 34-foot sailboat, set sail from San Francisco to Los Angeles on April 9, 1982. When the weather turned foul the next day, she started to return to San Francisco. By late afternoon, a heavy storm was blowing. She first contacted the Coast Guard early in the evening and asked for directions into San Francisco Bay and for the location of a large freighter that the crew had seen anchored nearby. The Coast Guard responded that it could not give navigational assistance, but provided the approximate location of the M/V MARITIME PRIDE, the vessel that the KUHUSHAN had spotted. A few minutes later, the KUHUSHAN notified the Coast Guard that she could not make headway against the winds. The Coast Guard answered that all Coast Guard vessels were busy with capsizes and sinkings of numerous sailboats competing in a race to the Farallon Islands that day, but set up a schedule for maintaining regular radio contact with the KUHUSHAN, and gave the boat's crew some assurance of assistance should it become necessary.

Later in the evening, in response to the KUHUSHAN's request for assistance, the Coast Guard recommended that the KUHUSHAN take shelter alongside of the MARITIME PRIDE until the Coast Guard could help. At this point, the Coast Guard suggested that the KUHUSHAN switch from Channel 16, the radio channel commonly used for small craft communications and distress calls, to Channel 13, a less commonly used frequency.

In order that the MARITIME PRIDE might throw the KUHUSHAN a line, the KUHUSHAN maneuvered alongside of the MARITIME PRIDE. Unfortunately, the attempt failed. In the process, the KUHUSHAN was thrown against the MARITIME PRIDE by the storm, breaking the KUHUSHAN's mast and puncturing her hull. The master of the MARITIME PRIDE saw that the KUHUSHAN had been partially dismasted, but he did not realize that she also had been holed. As the KUHUSHAN drifted out of sight, the master of the MARITIME PRIDE mistakenly assumed that a Coast Guard helicopter observed nearby was already lending assistance. As a result, the master of the MARITIME PRIDE did not inform the Coast Guard that the attempt to secure a line had failed. For its part, the Coast Guard, which had acted as radio intermediary between the two vessels, did not inquire about the success of the MARITIME PRIDE's attempt to throw a line, nor did it investigate when the KUHUSHAN missed the next scheduled communication check.

At about nine p.m., shortly after the accident, the KUHUSHAN took on water and began to sink. The KUHUSHAN called May Day on Channel 13, but no official Coast Guard personnel heard the call, in part because certain personnel were not manning their assigned stations. After the yacht capsized, the three sailors stayed near it in the water for 45 minutes, expecting assistance from the Coast Guard. When the Coast Guard did not arrive, they attempted to swim to shore. Only one was successful; the other two drowned.

The plaintiffs commenced this action against Monterey Navigation under the general maritime law based on the alleged negligence of the MARITIME PRIDE in attempting to assist the KUHUSHAN, and against the United States under the Suits in Admiralty Act (SIAA), 46 U.S.C. Sec. 742, based on the alleged negligence of the Coast Guard. After the defendants jointly settled with the plaintiffs, a bench trial was held to allocate the respective degree of fault between the United States and Monterey Navigation. The district court determined that the fault lay entirely with the United States, and the government appeals, raising numerous arguments. We need address only two: (1) whether a discretionary function exception similar to the one in the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 2680(a), immunizes the government from liability; and (2) whether the district court erred in admitting into evidence two Coast Guard investigative reports.

II

The government contends that the discretionary function exception to the FTCA's waiver of sovereign immunity should be read into the SIAA, that the conduct in question here was a discretionary function, and therefore, that the government is immune from liability for the Coast Guard's handling of the KUHUSHAN sinking.

The SIAA is the maritime analog to the FTCA. It removes the government's traditional cloak of sovereign immunity from maritime tort liability and provides that suit may be brought against the United States "where ... if a private person or property were involved, a proceeding an admiralty could be maintained...." 46 U.S.C. Sec. 742. Unlike the FTCA, however, the SIAA contains no express exception that precludes liability for conduct that is a discretionary function. This circuit has not decided whether a discretionary function exception should be implied in the SIAA. 1 We need not do so here, however, because even if a discretionary function exception were read into the SIAA, it would not apply in this case.

The purpose of the discretionary function exception is to "prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984). In Varig Airlines, persons injured in an air crash alleged that the Federal Aviation Administration (FAA) negligently failed to check thoroughly every airplane that the FAA certified as safe. The Court determined that the FAA had made a discretionary policy decision, permitted under the Congressional grant of authority and under FAA regulations, to use its finite resources to "spot-check" planes, and concluded that this was a decision for which the government could not be held liable in tort. Varig Airlines, 467 U.S. at 820, 104 S.Ct. at 2767. The government contends that the instant case similarly involves a discretionary policy decision concerning the allocation of limited resources in rescue operations and that judicial review would involve the courts in second-guessing difficult and delicate Coast Guard policy choices. We disagree.

The government's conduct at issue here was not the result of a policy decision about allocation of rescue resources, but rather the allegedly negligent execution of a course of action that was already chosen. At the time of the KUHUSHAN's sinking, the Coast Guard had already made the policy decision to assist the KUHUSHAN, and had communicated that decision to the crew, who in turn relied upon the Coast Guard's actions. Then the Coast Guard failed to monitor the radio channel it had instructed the KUHUSHAN to use, failed to investigate when the KUHUSHAN missed the scheduled communication check, and, apparently, forgot about the KUHUSHAN in the chaos of the evening. This is not a case where the Coast Guard decided to conserve its resources by not assisting vessels in certain situations. Instead, the Coast Guard decided to aid the KUHUSHAN, and then allegedly did so in a negligent manner.

Eklof Marine Corp. v. United States, 762 F.2d 200 (2d Cir.1985), provides a close analogy to the circumstances of this case. In Eklof, the Coast Guard was held liable for its negligent placement of a buoy. The court determined that although the Coast Guard had the discretion not to put down the buoy in the first place, once the Coast Guard marked an obstacle so as to engender reliance by passing vessels, then the Coast Guard could be held liable for negligence. In contrast, Mitchell v. United States, 787 F.2d 466 (9th Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 163, 98 L.Ed.2d 118 (1987), presents an example of the corresponding policy decision whether to mark a safety hazard that is shielded from liability. We held that the alleged negligent failure of a public utility to mark ground wires so as to prevent the plaintiff's airplane from flying into them was covered by the discretionary function exception. Id. at 468.

In this case, as in Eklof and Mitchell, the Coast Guard had discretion to choose whether or how to attempt to assist the KUHUSHAN. Once that choice had been made, thereby creating reliance by the KUHUSHAN's crew, the Coast Guard became liable for its failure, if any, to conform to the applicable standard of care in carrying out or failing to carry out its decision. The Coast Guard's failure to assist after specifically promising assistance was not an...

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