In the Matter of The Complaint of Vulcan Materials Co. v. Massiah

• Decision Date: 06 May 2011
• Docket Number: No. 10–1041.,10–1041.
• Parties: In the Matter of the Complaint of VULCAN MATERIALS COMPANY, owner of the Tug William E. Polle, for exoneration from or limitation of liability, Plaintiff–Appellant,v.Cassita MASSIAH, Executor of the estate of Freddie N. Porter, Jr., deceased, Claimant–Appellee,v.United States of America, Third Party Defendant–Appellee.American Waterways Operators, Amicus Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

645 F.3d 249

In the Matter of the Complaint of VULCAN MATERIALS COMPANY, owner of the Tug William E. Polle, for exoneration from or limitation of liability, Plaintiff–Appellant,

v.Cassita MASSIAH, Executor of the estate of Freddie N. Porter, Jr., deceased, Claimant–Appellee,

v.United States of America, Third Party Defendant–Appellee.American Waterways Operators, Amicus Supporting Appellant.

No. 10–1041.

United States Court of Appeals, Fourth Circuit.

Argued: March 23, 2011.Decided: May 6, 2011.

ARGUED: John Early Holloway, Troutman Sanders, LLP, Norfolk, Virginia, for Appellant. Michael P. Abate, United States Department of Justice, Washington, D.C.; Daniel O. Rose, Kreindler & Kreindler, New York, New York, for Appellees. ON BRIEF: Dawn Lee Serafine, Troutman Sanders, LLP, Norfolk, Virginia, for Appellant. Tony West, Assistant Attorney General, Thomas M. Bondy, United States Department of Justice, Washington, D.C., Neil MacBride, United States Attorney, Alexandria, Virginia, for the United States. Megan Wolfe Benett, Steven R. Pounian, Kreindler & Kreindler, New York, New York; Michael F. Imprevento, Breit Drescher & Imprevento, PC, Norfolk, Virginia, for Appellee Cassita Massiah. Robert W. McFarland, R. Trent Taylor, McGuirewoods LLP, Norfolk, Virginia, for Amicus Supporting Appellant.Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge WILKINSON and Judge SHEDD joined.

OPINION

DUNCAN, Circuit Judge:

This appeal arises out of the death of Seaman Freddie N. Porter, Jr. (“Porter”), who was killed during a Navy training exercise when his rigid-hull inflatable boat (“RHIB”) collided with the WILLIAM E. POOLE ¹ tug as it was pushing an eight-barge flotilla up the James River. Claimant–Appellee Cassita Massiah (“Massiah”), as personal representative for her son Porter's estate, brought a wrongful death suit against the tug owner, Plaintiff–Appellant Vulcan Materials Company (“Vulcan”). Vulcan, in turn, sought contribution from the United States as co-tortfeasor. The district court awarded $1,250,000 in damages to Porter's family members but refused, on sovereign immunity grounds, to allow Vulcan's third-party contribution claim to proceed. On appeal, Vulcan challenges both the district court's determination that it was negligent for failing to post a proper lookout on the night of the accident, and the court's dismissal of Vulcan's third-party claim for lack of subject matter jurisdiction. For the following reasons, we affirm.

I.

A.

We recount the relevant facts as found by the district court. Nineteen-year-old Porter, a land-based supply clerk, volunteered to attend a two-week coxswain course. On October 11, 2007, he and fellow Navy personnel departed from the United States Navy's Little Creek Amphibious Base (“Little Creek”) in five RHIBs to complete the course's final training exercise, which provided the students with an opportunity to practice navigating small vessels at night. Before departing Little Creek that afternoon, each RHIB's crew verified the proper functioning of its boat's running lights. The RHIBs—with call-signs Tango–1, Tango–2, Tango–3, Sierra Bravo, and Sierra Charlie—then navigated up the James River to Jordan Point, where the crews disembarked, had dinner, and waited for nightfall.

After darkness fell, the RHIBs' crews “conducted another pre-operation inspection, and again verified that all lights on the boats—including an all-around white light mounted next to the radar dome on the aft mast, and a set of red and green running lights mounted forward in the RHIBs—were functioning properly.” J.A. 1095. Porter boarded his RHIB, Tango–2, and took the forward lookout position, while a fellow student in the course, Petty Officer Esteban Angeles, piloted the boat. Petty Officer Albert Bollinger acted as the boat's safety observer and qualified coxswain.

While the Navy RHIBs were making their way back down the James River that evening, Captain Rondy Wooldridge was maneuvering his tug, the WILLIAM E. POOLE, upriver toward Richmond. The tug had left Norfolk earlier that day pushing a flotilla of six barges. With thirty-three years of experience navigating the James, Captain Wooldridge had made similar trips “thousands of times,” J.A. 1096, and was doing so this time as a Vulcan employee.

Approximately one hour before nightfall, Captain Wooldridge instructed his deckhand, Joseph Christensen (“Christensen”), to position and illuminate the flotilla's running lights. Christensen placed a green light on the starboard (right) side of the flotilla, a red light on the port (left) side of the flotilla, and a flashing amber light as close to the center as possible.

After passing under the James River Bridge, the POOLE stopped at Hog Island and picked up two additional barges. The final eight-barge flotilla configuration comprised a forward row of three barges, a middle row of three barges, and an aft row of two barges (in the center and starboard positions), with the POOLE positioned behind the aft center barge. Because each barge measured nearly 200 feet long, the flotilla extended about 585 feet in front of the POOLE. Since the barges were empty, their decks rose approximately twelve feet above the water line. This arrangement created a blind spot extending approximately 600 feet in front of the barges. From their perch in the POOLE's wheelhouse, Captain Wooldridge and Christensen could not see the river for some distance in front of the flotilla, much like a driver is unable to see the road immediately in front of his car.

Christensen rearranged the flotilla's running lights to account for the new configuration. With the lights in place, the POOLE departed Hog Island around 10:00 p.m. and continued up the river toward Jamestown Island. Captain Wooldridge was at the helm and Christensen was standing lookout with him in the wheelhouse. On that particular night, “there was little if any ambient light,” and “the shores, the water, and the sky were dark.” J.A. 1098. It was “windy and the water was choppy, with swells of one (1) to two (2) feet” that “caused clutter on the POOLE's radar, making it difficult to see objects with small radar returns—such as the RHIBs—on the radar screen.” Id.

The James River forms an “S-curve” between Hog Island and Jamestown Island. Although the river is more than a mile wide throughout this area, the shipping channel is narrow—only 300 feet across. As the POOLE cleared the final turn in the S-curve and continued upriver toward navigational buoys 53 and 54, the Navy RHIBs were traveling downriver toward the same buoys.

The crew onboard Tango–2 noticed, but could not identify, a white light in the direction of the buoys. The light turned out to be the tug's spotlight, which Captain Wooldridge left illuminated on the port bow of the flotilla as he traveled upriver. Perceiving the light ahead, Tango–2's safety inspector, Bollinger, instructed the boat's driver, Angeles, to slow down and assess the situation before proceeding. Sierra Bravo's crew observed Tango–2 slow down and did the same. Both boats “drifted in the shipping channel with their bows pointed south while their crews tried to make out the source of the light.” J.A. 1098. Petty Officer Julio Rodriguez Vargas, who was piloting Sierra Bravo, noticed a large object on his radar but could not identify it and did not inform Tango–2 of his observations. Although Tango–2 was also equipped with radar, no one aboard Tango–2 used it: “Angeles, who was in the operator's chair, did not know the RHIB was equipped with radar, and Bollinger, the boat's safety observer, did not know how to use it.” J.A. 1099. The other RHIBs farther downstream had seen the same light and consequently moved to the side of the shipping channel, eventually identifying the light as belonging to a tug. One of the instructors testified that there was radio chatter among the RHIBs about a tug in the river, but the Tango–2 crew did not recall hearing anything over the radio.

Before Tango–2 and Sierra Bravo could identify the source of the white light, the front of the POOLE's flotilla “emerged from the darkness on their port side.” Id. Sierra Bravo avoided collision with the barge, but “Tango–2 was not so lucky.” Id. Petty Officers Angeles and Bollinger leapt from the RHIB and ultimately swam their way to safety, but Seaman Porter did not survive the accident. His body later washed ashore, and an autopsy confirmed he sustained a fatal blow to the head from a tug propeller. The POOLE's crew testified that, while they had observed the other RHIBs pass the flotilla that night, they were completely unaware they had hit Tango–2 until the following day, when they were contacted by the Coast Guard.

Porter was survived by his mother (Massiah), father, and seven siblings. Shortly after Porter's death, the United States made a death gratuity payment to Massiah in the amount of one hundred thousand dollars ($100,000) and reimbursed her for Porter's funeral and burial expenses, in the amount of seven thousand twenty dollars ($7,020).

B.

In August 2008, Vulcan, as owner of the POOLE, filed a complaint for exoneration from, or limitation of, liability for the collision pursuant to the Limitation of Liability Act, 46 U.S.C. § 30501–30512.² Massiah, as executor of her son Porter's estate, answered Vulcan's complaint and submitted an admiralty claim against it alleging negligence. Vulcan, in turn, filed a third-party complaint against the United States pursuant to the Public Vessels Act (“PVA”), 46 U.S.C. § 31101, and the Suits in Admiralty Act (“SAA”), 46 U.S.C. § 30901, alleging that the Navy was liable for the accident and seeking contribution for any damages owed to Porter's estate.

The United States answered the third-party complaint and filed a counterclaim against Vulcan demanding a judgment for “repairs to or replacement of” the Tango–2, the cost of providing medical care...