Marbulk Shipping v. Martin-Marietta Materials, CIV.A.02-0190-WS-L.

• Decision Date: 17 June 2003
• Docket Number: No. CIV.A.02-0190-WS-L.,CIV.A.02-0190-WS-L.
• Citation: 271 F.Supp.2d 1374
• Parties: MARBULK SHIPPING, INC., Plaintiff, v. MARTIN-MARIETTA MATERIALS, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Alabama

271 F.Supp.2d 1374

MARBULK SHIPPING, INC., Plaintiff, v. MARTIN-MARIETTA MATERIALS, INC., et al., Defendants.

No. CIV.A.02-0190-WS-L.

United States District Court, S.D. Alabama, Southern Division.

June 17, 2003.

Grover E. Asmus, II, Armbrecht Jackson L.L.P.P., Mobile, AL, Daniel Hoerner, Andre J. Mouledoux, Mouledoux, Bland, LeGrand & Brackett, New Orleans, LA, for Bean Dredging LLC.

Patricia Nicole Beyer, U.S. Attorney's Office, Mobile, AL, Matthew J. Glomb, U.S. Dept. of Justice, Torts Branch, Civil Div., Washington, DC, for National Ocean Survey and National Oceanic and Atmospheric Admin., U.S Coast Guard, U.S. Army Corps of Engineers.

Gregory C. Buffalow, Edward Brough Holzwanger, Miller, Hamilton, Snider & Odom, Mobile, AL, for Marbulk Shipping, Inc.

John F. Fay, William K. Terrill, II, Deutsch, Kerrigan & Stiles, New Orleans, LA, Ray M. Thompson, Mobile, AL, for Martin-Marietta Aggregates, Inc., Martin-Marietta Materials, Inc.

Samuel B. Gabb, Lundy & Davis, L.L.P., Lake Charles, LA, for Mike Hook, Inc.

Allen E. Graham, Lyons, Pipes & Cook, Mobile, AL, for Alabama State Docks.

Alex F. Lankford, III, G. Hamp Uzzelle, III, Hand Arendall, L.L.C., Mobile, AL, for Seabulk Intern., Inc.

ORDER ON MOTION TO DISMISS

STEELE, District Judge.

This matter is before the Court on the motion of the United States to dismiss certain claims asserted against the United States Coast Guard. (Doc. 99).¹ The United States and the plaintiff have filed briefs and evidentiary materials in support of their respective positions, (Docs.100, 117, 118, 124, 162, 163, 164), and the motion is now ripe for resolution. After carefully considering the foregoing materials, as well as all other relevant materials in the file, the Court concludes that the United States' motion to dismiss is due to be granted.

BACKGROUND

The plaintiff is the owner and/or operator of the M/V BAHAMA SPIRIT ("the Vessel"). Shortly after midnight on March 27, 2001, the Vessel entered a turning basin ("the Basin") reached by the Theodore Ship Channel ("the Channel"), heading generally west. The Vessel carried a load of limestone for discharge at a facility along the northern bank of the Channel. The Basin lay immediately south of the facility. To position its port side alongside the facility, the Vessel was required to execute a 180-degree, clockwise turn in the Basin. Early in the maneuver, as the Vessel was pivoting around its bow, the stern apparently struck a submerged object on the east side of the Basin, damaging the rudder.

The second amended complaint alleges that the Coast Guard "failed to take proper action to survey, locate, identify, mark, and/or remove said dredge pipe and underwater hazard within the berth and turning basin, as well as failed to publish and disseminate notices to mariners containing appropriate warnings." (Doc. 137, ¶ 22F). The United States does not seek dismissal with respect to all these duties but only those "pertaining to [the Coast Guard's] discretionary decision not to establish a Federal aid to navigation in the Theodore Turning Basin." (Doc. 99 at 1).

DISCUSSION

The Suits in Admiralty Act ("SAA") provides "the sole jurisdictional basis for admiralty claims against the United States" that do not involve a public vessel. Mid-South Holding Co. v. United States, 225 F.3d 1201, 1203 (11th Cir.2000). The SAA includes an express waiver of the federal government's sovereign immunity, 46 U.S.C.app. § 742, but the waiver is subject to various exceptions. Central to the pending motion is the "discretionary function" exception. "[T]he Eleventh Circuit has held that the discretionary function exception of the Federal Tort Claims Act, 28 U.S.C. § 2680(a), applies to suits under the SAA." Drake Towing Co. v. Meisner Marine Construction Co., 765 F.2d 1060, 1063-64 (11th Cir.1985). Thus, case law developing the discretionary function exception in the context of the Federal Tort Claims Act ("FTCA") is applicable in construing the corresponding exception under the SAA. United States Fire Insurance Co. v. United States, 806 F.2d 1529, 1535 (11th Cir.1986).

If the discretionary function exception applies, the Court lacks subject matter jurisdiction, and dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is required. Mid-South Holding Co. v. United States, 225 F.3d at 1202; Cohen v United States, 151 F.3d 1338, 1340 (11th Cir.1998). The ultimate burden of proof concerning the discretionary function exception appears to lie with the plaintiff, OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir.2002),² but "[t]he allocation of burdens is not significant when the relevant facts are undisputed." Hughes v. United States, 110 F.3d 765, 768 (11th Cir.1997). Here, the undisputed facts clearly demonstrate that the exception applies.

The Supreme Court's most recent, and most thorough, explication of the discretionary function exception under the FTCA appears in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). As the Eleventh Circuit has observed, "[i]n Gaubert, the Supreme Court developed a two-step test to determine whether the government's conduct meets the discretionary function exception." Miles v. Naval Aviation Museum Foundation, Inc., 289 F.3d 715, 720 (11th Cir.2002). First, the discretionary function exception cannot apply if governing statutes, regulations or policy dictate the government's course of action, for in that case there is no discretion to be exercised. 499 U.S. at 324, 111 S.Ct. 1267. Second, the challenged discretionary act must be "`of the kind that the discretionary function exception was designed to shield,'" that is, one "`based on considerations of public policy.'" Id. at 322-23, 111 S.Ct. 1267 (quoting United States v. Varig Airlines, 467 U.S. 797, 813, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) and Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), respectively). As discussed below, the Gaubert test is met in this case.

"In order to aid navigation and to prevent disasters, collisions, and wrecks of vessels and aircraft, the Coast Guard may establish, maintain, and operate ... aids to maritime navigation ...." 14 U.S.C. § 81 (emphasis added). Similarly, "[t]he Secretary may mark for the protection of navigation any sunken vessel or other obstruction existing on the navigable waters ...." Id. § 86 (emphasis added). The permissive term "may" confirms that Congress has not imposed on the Coast Guard a mandatory duty to mark hazards.³

Under Gaubert, an agency's regulations may so circumscribe the discretion delegated by statute as to negate the element of choice required by the first criterion. 499 U.S. at 324, 111 S.Ct. 1267. Applicable Coast Guard regulations, however, reserve to the agency its range of choice: "The aids to navigation system is not intended to identify every shoal or obstruction to navigation which exists in the navigable waters of the United States, but rather provides for reasonable marking of marine features as resources permit." 33 C.F.R. § 62.1(c)(2002)(emphasis added). Similarly, the Coast Guard "may mark for the protection of maritime navigation any structure, sunken vessel or other obstruction that is not adequately marked by the owner." Id. § 64.33(a) (emphasis added); see also Lawson v. United States, 124 F.3d 198, 1997 WL 530540 at *3 (6th Cir. 1997)("[T]he Coast Guard's own regulations do not undermine this discretion, nor do they mandate the placement of navigational aids in specific situations.").⁴

The Eleventh Circuit apparently has not decided a discretionary function case, in the context of the Coast Guard's permissive authority to place aids to navigation, since Gaubert. Other appellate courts, however, have done so, and all have easily concluded that decisions whether to place such aids satisfy the second Gaubert criterion.⁵ In addition, the Eleventh Circuit has construed Gaubert as interpreting a prior Supreme Court opinion⁶ as "involv[ing] discretion grounded in public policy considerations only at one level: whether the Coast Guard would undertake to operate the lighthouse." Ochran v. United States, 117 F.3d 495, 506 (11th Cir.1997). Moreover, the Eleventh Circuit has found the discretionary function exception to be applicable in almost every case it has considered since Gaubert.⁷ Finally, even before Gaubert the Eleventh Circuit held that "[t]he initial decision to place aids in navigation ... is within the Coast Guard's discretion" because it implicates "[t]he balancing of policy considerations." Drake Towing v. Meisner Marine Construction, 765 F.2d at 1064.

An independent application of the policy-consideration analysis formulated in Gaubert confirms that the Coast Guard's decision whether to place an aid to navigation satisfies the second Gaubert criterion. Policy considerations may be social, economic or political. 499 U.S. at 323, 111 S.Ct. 1267. The relevant policy considerations may be established "by statute, regulation or agency guidelines." Id. at 324, 111 S.Ct. 1267. There need be no express statement of policy considerations in these sources as long as they can be "implied" from them. Id. Once these policy considerations are identified, there is a "strong presumption that a discretionary act authorized by the [statute or] regulation involves consideration of the same policies which led to the promulgation of the [statute or] regulation." Id. Moreover, because "[t]he focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis," id. at 325, 111 S.Ct. 1267, the presumption cannot be overcome by evidence that the government did not actually weigh the relevant policy considerations in making the challenged decision.⁸ Finally, "[d]iscretionary conduct is not confined to the policy or planning level," but extends to the...