Limar Shipping Ltd. v. U.S.

• Decision Date: 25 March 2003
• Docket Number: No. 02-1454.,02-1454.
• Citation: 324 F.3d 1
• Parties: LIMAR SHIPPING LTD. and OMI Corp., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1

324 F.3d 1

LIMAR SHIPPING LTD. and OMI Corp., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.

No. 02-1454.

United States Court of Appeals, First Circuit.

Heard October 8, 2002.

Decided March 25, 2003.

COPYRIGHT MATERIAL OMITTED

Thomas E. Clinton, with whom Robert E. Collins and Clinton & Muzyka, P.C., were on brief, for appellants.

Michelle T. Delemarre, Admiralty Trial Attorney, with whom Robert D. McCallum, Jr., Assistant Attorney General, and Michael J. Sullivan, United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

TORRUELLA, Circuit Judge.

Limar Shipping Ltd. ("Limar") and OMI Corporation ("OMI"), plaintiffs-appellants, appeal a grant of summary judgment in favor of the defendant-appellee the United States, in a case alleging, inter alia, that the United States was negligent and/or breached warranties in the surveying of the Boston Harbor and the dissemination of nautical charts that failed to accurately depict the depth of the harbor. Plaintiffs claim that the erroneous chart resulted in the grounding of and subsequent damage to their vessel, the M/T Limar. Plaintiffs raise two main issues on appeal, namely, that the district court erred in: (1) finding that there is an implied discretionary function exemption in the Suits in Admiralty Act; and (2) applying the discretionary function exemption as it did to the facts of this case. After careful review, we affirm the district court's ruling for the reasons stated below.

I. Facts

On the morning of March 11, 1996, the steel hulled tanker vessel M/T Limar, owned by Limar and operated by OMI, approached Boston, Massachusetts. Under Massachusetts law, foreign vessels the size of the M/T Limar must employ a harbor pilot when entering Boston Harbor.¹ See Mass. Gen. Laws ch. 103, §§ 21, 28. Accordingly, the M/T Limar took aboard a harbor pilot, Lawrence Cannon, who undertook navigation of the ship through the Boston Harbor shipping channel.

The main shipping route in the Boston Harbor includes side-by-side inbound and outbound channels, which are maintained by the Army Corps of Engineers ("Army Corps"). Congress allocates funds to maintain federal shipping channels at certain authorized depths and widths. In 1996, the Army Corps was authorized to dredge the Boston Harbor inbound channel to a depth of thirty-five feet below Mean Low Water, and was also authorized to maintain the outbound channel at a depth of not more than forty feet. Both of these channels could be maintained up to 600 feet wide.

The Army Corps conducts periodic surveys of the shipping channels to determine their actual depths, as opposed to the authorized depths, and to discover any unexpected debris or shoaling. The results of these surveys are made known to the public through Results of Survey Reports and the Coast Guard's Local Notice to Mariners publications. Relevant to this matter, the last periodic survey of the disputed area of the inbound channel was completed in 1990. The results of the 1990 Boston Harbor survey appeared in a Results of Survey Report dated July 23, 1990, and they were published in the First Coast Guard District's Local Notice to Mariners, Number 31, on August 1, 1990. They also appeared in a book entitled The Port of Boston, Massachusetts, Port Series No. 3, issued in 1994. In each of these sources, the 1990 survey reported the controlling depth of the channel, which is the shallowest point at any place as compared to Mean Low Water.

Cannon, a harbor pilot with twenty-four years of experience at the time of the grounding, knew these survey results, and did not bring a nautical chart with him. Although he had never been aboard the M/T Limar, he familiarized himself with the ship, and asked the M/T Limar's crew for the draft of the ship before directing the ship through Boston Harbor.

While Cannon piloted the vessel, the M/T Limar's crew observed the movement of the ship. Third Mate Rodolfo Arcilla took periodic position fixes of the vessel's location and plotted them on the M/T Limar's copy of Nautical Chart 13272, 43d Edition, dated June 28, 1995. The National Oceanic and Atmospheric Administration ("NOAA") created this chart using information from several sources, including the 1990 Army Corps survey mentioned above.²

At 8:50 a.m., the M/T Limar scraped the Boston Harbor floor near Red Nunn Buoy No. 8, at approximately 42 20.494' N and 71 00.505' W. According to the nautical chart produced by NOAA, the water depths nearest to the position of the groundings are thirty-five and thirty-six feet, which allegedly should have accommodated the M/T Limar's thirty-three feet, nine inch draft. The vessel grounded on the starboard (right) side forebody, but was still able to reach its berth. However, the damage to the hull and the ensuing steps taken to prevent oil pollution are alleged to have cost Limar and OMI in excess of $800,000.

Limar and OMI sued the government under the Suits in Admiralty Act ("SAA"), 46 U.S.C. Appx. §§ 741-52 (1976), alleging that the misrepresentation of the water depth on the chart caused the damage to the M/T Limar. The district court granted summary judgment in favor of the United States, finding that the discretionary function exception applied and that the United States was entitled to dismissal of the complaint on grounds of sovereign immunity.

II. Standard of Review

This Court reviews the grant of a summary judgment motion de novo, considering all facts in the light most favorable to the non-moving party, in this case the plaintiffs. Gu v. Boston Police Dept., et al., 312 F.3d 6, 10 (1st Cir.2002).

III. Discussion

This case involves allegations of negligence on the part of the United States in the production and dissemination of a nautical chart. In order to avoid confusion, we highlight several key facts. The Army Corps conducted a survey of the Boston Harbor, which was later used by NOAA to create a nautical chart of the harbor. The plaintiffs argue that the chart failed to accurately depict the depth of the harbor, and the M/T Limar's grounding was a result of this inaccuracy. Instead of following what the plaintiffs allege are mandatory standards, the Army Corps followed its own guidelines in conducting the survey. The plaintiffs contend that the chart's inaccuracy could have been prevented if NOAA had based the chart on a survey that was conducted in accordance with NOAA's standards for hydrographic surveys. Specifically, the plaintiffs argue that if the nautical chart had been based on a survey conducted in compliance with NOAA guidelines, it would have been more accurate because those guidelines require measurements on tighter sounding intervals and line spacing than those called for by the Army Corps guidelines. According to the plaintiffs, the Army Corps should have followed the NOAA requirements in conducting its initial survey because it knew that NOAA would rely on the survey in creating nautical charts. NOAA did in fact use the Army Corps survey, in conjunction with other sources, to create the chart. Thus, plaintiffs allege two grounds of liability: (1) the Army Corps decision to follow its own guidelines rather than the NOAA guidelines in conducting the survey; and (2) NOAA's decision to create a chart based on that survey.

Plaintiffs urge us to hold that the United States has completely waived sovereign immunity in the SAA, and consequently that no discretionary function exception exists in this context. In the event we find that there is such an exception, plaintiffs argue that the exception should not apply to the decisions made by the Army Corps and NOAA, and that the United States should be subject to suit, because the decisions were non-discretionary. The final argument offered by plaintiffs is that even if NOAA's decision to rely on the Army Corps survey was a discretionary decision, once that decision was made, the government entity had a duty of care to create the chart accurately. Plaintiffs argue that since mariners regularly rely on such charts for navigation, misrepresentation as to the depth of the harbor is grounds for liability.

In response, defendants argue that the actions by both the Army Corps and NOAA are discretionary decisions that fall within the implied discretionary function exception to the SAA. Thus, defendants argue the United States is protected from suit by sovereign immunity.

A. Existence of the Implied Discretionary Function Exception

We begin with the threshold issue of whether a discretionary function exception should be implied in the context of the SAA. Unless such an exception can be implied, waiver of sovereign immunity by the United States would allow the plaintiffs' suit to proceed.

The United States, as sovereign, is immune from suit unless it waives its sovereign immunity and consents to be sued. See, e.g., United States v. Thompson, 98 U.S. 486, 489, 25 L.Ed. 194 (1878). Absent express waiver of sovereign immunity, federal courts lack subject matter jurisdiction over suits against the United States. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). In the SAA, the United States waives its sovereign immunity from suit for maritime torts committed by its agents. See 46 U.S.C. Appx. § 742; Gercey v. United States, 540 F.2d 536, 539 (1st Cir.1976).

The SAA contains no express exceptions to the waiver of sovereign immunity. In contrast, the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 1346(b), which waives sovereign immunity for tort claims against the United States, contains an express exception to shield the "discretion of the executive or administrator to act according to one's judgment of the best course." Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). This discretionary function exception serves to prevent "judicial `second-guessing' of legislative and administrative...