Indian Towing Company v. United States, No. 8

CourtUnited States Supreme Court
Writing for the CourtFRANKFURTER
Citation76 S.Ct. 122,350 U.S. 61,100 L.Ed. 48
PartiesINDIAN TOWING COMPANY, Inc., et al., Petitioners, v. UNITED STATES of America. Re-
Decision Date21 November 1955
Docket NumberNo. 8

350 U.S. 61
76 S.Ct. 122
100 L.Ed. 48
INDIAN TOWING COMPANY, Inc., et al., Petitioners,

v.

UNITED STATES of America.

No. 8.
Re-Argued Oct. 13, 1955.
Decided Nov. 21, 1955.

Mr. Richard B. Montgomery, New Orleans, La., Mr. Cicero C. Sessions, New Orleans, La., on the brief, for petitioners.

Mr. Lester S. Jayson, Washington, D.C., for respondent.

Mr. Justice FRANKFURTER delivered the opinion of the Court.

Petitioners brought suit in the United States District Court for the Southern District of Mississippi, seeking

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recovery under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b), for damages alleged to have been caused by the negligence of the Coast Guard in the operation of a lighthouse light. They alleged that on October 1, 1951, the tug Navajo, owned by petitioner Indian Towing Company, was towing Barge AS—16, chartered by petitioner Upper Mississippi Towing Corporation; that the barge was loaded with a cargo of triple super phosphate, consigned to petitioner Minnesota Farm Bureau Service Company and insured by petitioner United Firemen's Insurance Company; that the tug Navajo went aground on Chandeleur Island and as a result thereof sea water wetted and damaged the cargo to the extent of $62,659.70; that the consignee refused to accept the cargo; that petitioners Indian Towing Company and Upper Mississippi Towing Corporation therefore became responsible for the loss of the cargo; and that the loss was paid by petitioner United Firemen's Insurance Company under loan receipts. The complaint further stated that the grounding of the Navajo was due solely to the failure of the light on Chandeleur Island which in turn was caused by the negligence of the Coast Guard. The specific acts of negligence relied on were the failure of the responsible Coast Guard personnel to check the battery and sun relay system which operated the light; the failure of the Chief Petty Officer who checked the lighthouse on September 7, 1951, to make a proper examination of the connections which were 'out in the weather'; the failure to check the light between September 7 and October 1, 1951; and the failure to repair the light or give warning that the light was not operating. Petitioners also alleged that there was a loose connection which could have been discovered upon proper inspection.

On motion of the respondent the case was transferred to the United States District Court for the Eastern District of Louisiana, New Orleans Division. Respondent

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then moved to dismiss on the ground that it has not consented to be sued 'in the manner in which this suit is brought' in that petitioners' only relief was under the Suits in Admiralty Act, 41 Stat. 525, 46 U.S.C.A. § 741 et seq., or the Public Vessels Act, 43 Stat. 1112, 46 U.S.C.A. § 781 et seq. This motion was granted and the Court of Appeals for the Fifth Circuit affirmed per curiam. 211 F.2d 886. Because the case presented an important aspect of the still undetermined extent of the Government's liability under the Federal Tort Claims Act, we granted certiorari, 348 U.S. 810, 75 S.Ct. 60. The judgment of the Court of Appeals was affirmed by an equally divided Court, 349 U.S. 902, 75 S.Ct. 575, but a petition for rehearing was granted, the earlier judgment in this Court vacated, and the case restored to the docket for reargument before the full Bench. 349 U.S. 926, 75 S.Ct. 769.

The relevant provisions of the Federal Tort Claims Act are 28 U.S.C. §§ 1346(b), 2674, and 2680(a), 28 U.S.C.A. §§ 1346(b), 2674, 2680(a):

s 1346(b). '* * * the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'

s 2674. 'The United States shall be liable * * * in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.'

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s 2680. 'The provisions of this chapter and section 1346(b) of this title shall not apply to—

'(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.'

The question is one of liability for negligence at what this Court has characterized the 'operational level' of governmental activity. Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 971, 97 L.Ed. 1427. The Government concedes that the exception of § 2680 relieving from liability for negligent 'exercise of judgment' (which is the way the Government paraphrases a 'discretionary function' in § 2680(a)) is not involved here, and it does not deny that the Federal Tort Claims Act does provide for liability in some situations on the 'operational level' of its activity. But the Government contends that the language of § 2674 (and the implications of § 2680) imposing liability 'in the same manner and to the same extent as a private individual under like circumstances * * *' must be read as excluding liability in the performance of activities which private persons do not perform. Thus, there would be no liability for negligent performance of 'uniquely governmental functions.' The Government reads that statute as if it imposed liability to the same extent as would be imposed on a private individual 'under the same circumstances.' But the statutory language is 'under like circumstances,' and it is hornbook tort law that one who undertakes to warn the public of danger and thereby

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induces reliance must perform his 'good Samaritan' task in a careful manner.

Furthermore the Government in effect reads the statute as imposing liability in the same manner as if it were a municipal corporation and not as if it were a private person, and it would thus push the courts into the 'non-governmental'—'governmental' quagmire that has long plagued the law of municipal corporations. A comparative study of the cases in the forty-eight States will disclose an irreconcilable conflict. More than that, the decisions in each of the States are disharmonious and disclose the inevitable chaos when courts try to apply a rule of law that is inherently unsound. The fact of the matter is that the theory whereby municipalities are made amenable to liability is an endeavor, however awkward and contradictory, to escape from the basic historical doctrine of sovereign immunity. The Federal Tort Claims Act cuts the ground from under that doctrine; it is not self-defeating by covertly embedding the casuistries of municipal liability for torts.1

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While the Government disavows a blanket exemption from liability for all official conduct furthering the 'uniquely governmental' activity in any way, it does claim that there can be no recovery based on the negligent performance of the activity itself, the so-called 'end-objective' of the particular governmental activity. Let us suppose that the Chief Petty Officer going in a Coast Guard car to inspect the light on Chandeleur Island first negligently ran over a pedestrian; later, while he was inspecting the light, he negligently tripped over a wire and injured someone else; he then forgot to inspect an outside connection and that night the patently defective connection broke and the light failed, causing a ship to go aground and its cargo of triple super phosphate to get wet; finally the Chief Petty Officer on his way out of the lighthouse touched a key to an uninsulated wire to see that it was carrying current, and the spark he produced caused a fire which sank a nearby barge carrying triple super phosphate. Under the Government's theory, some of these acts of negligence would be actionable, and some would not. But is there a rational ground, one that would carry conviction to minds not in the grip of technical obscurities, why there should be any difference in result? The acts were different in time and place but all were done in furtherance of the officer's task of inspecting the lighthouse and in furtherance of the Coast Guard's task in operating a light on Chandeleur Island. Moreover, if the United States were to permit the operation of private lighthouses not at all inconceivable—the Government's basis of differentiation would be gone and the negligence charged in this case would be actionable. Yet there would be no change in the character of the

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Government's activity in the places where it operated a lighthouse, and we would be attributing bizarre motives to Congress were we to hold that it was predicating liability on such a completely fortuitous circumstance—the presence of identical private activity.2

While the area of liability is circumscribed by certain provisions of the Federal Tort Claims Act, see 28 U.S.C. § 2680, 28 U.S.C.A. § 2680, all Government activity is inescapably 'uniquely governmental' in that it is performed by the Government. In a case in which the Federal Crop Insurance Corporation, a wholly Government-owned enterprise, was sought to be held liable on a cropinsurance policy on the theory that a private insurance company would be liable in the same situation, this Court stated: 'Government is not partly public or partly private, depending upon the gov-

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ernmental pedigree of the type of a particular activity or the manner in which the...

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1005 practice notes
  • Mr. (Vega Alta) v. Caribe General Elec. Products, Civil No. 97-2294 (JAF).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • December 3, 1998
    ...by the plaintiff upon the government carefully performing the task it undertook. For example, in Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the United States Supreme Court found that the United States could be held liable under the FTCA for th......
  • Jennings v. United States, No. 8117.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 4, 1961
    ...it. See: Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427; Indian Towing Co., Inc. v. United States, 1955, 350 U.S. 61, 76 S. Ct. 122, 100 L.Ed. 48; Hatahley v. United States, 1956, 351 U.S. 173, 76 S. Ct. 745, 100 L.Ed. 1065; Somerset Seafood Co. v. United States, ......
  • Parker v. U.S., No. 77-3448
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 13, 1980
    ...States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (liability for negligent firefighting); Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (liability for negligent operation of lighthouse). Factors cited in Brooks, Feres, and Brown as either fo......
  • W.C. & A.N. Miller Companies v. U.S., Civil Action No. 96-00453.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 21, 1997
    ...of additional or different signs does not implicate economic, social, or political concerns); cf. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (Coast Guard, having undertaken to provide lighthouse service, had a duty to use due care to make certain that......
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1006 cases
  • Parker v. U.S., No. 77-3448
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 13, 1980
    ...States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (liability for negligent firefighting); Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (liability for negligent operation of lighthouse). Factors cited in Brooks, Feres, and Brown as either fo......
  • W.C. & A.N. Miller Companies v. U.S., Civil Action No. 96-00453.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • March 21, 1997
    ...of additional or different signs does not implicate economic, social, or political concerns); cf. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (Coast Guard, having undertaken to provide lighthouse service, had a duty to use due care to make certain that......
  • Himmler v. United States, Civ. A. No. 75-2136.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 14, 1979
    ...the Government has assumed a function or service, it is liable for negligent performance.9 9 Indian Towing Company, Inc. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 100 L.Ed. 48 (1955); American Airlines, Inc. v. United States, 418 F.2d 180, 192 (5th Cir. 1969); see generally, Annot......
  • Miller v. U.S., No. 79-1964
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 18, 1981
    ..."Jayson"). 2 Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957); Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955); United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). But see, Stencel Aero Engineering Corp......
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