McCormick v. U.S.

• Decision Date: 18 May 1981
• Docket Number: No. 79-2144,79-2144
• Parties: James E. McCORMICK and Carol Ann McCormick, etc., et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 299

645 F.2d 299

James E. McCORMICK and Carol Ann McCormick, etc., et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 79-2144.

United States Court of Appeals, Fifth Circuit.

May 18, 1981.

Clayton J. M. Adkinson, DeFuniak Springs, Fla., for plaintiffs-appellants.

Nicholas P. Geeker, U. S. Atty., Pensacola, Fla., Stephen Leach, Trial Atty., Torts Branch, Civ. Div., U. S. Dept. of Justice, Washington, D. C., for defendant-appellee.

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

Before THORNBERRY, ANDERSON and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

This appeal presents a conflict in the applicability of two statutes providing for a waiver of the Federal Government's sovereign immunity under differing terms, the differences of which control the outcome of the case. The statutes differ in pertinent part in their respective limitations and administrative exhaustion provisions. The appellants brought their suit below under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. The Government won dismissal on the ground that suit had to be maintained, if at all, under the Suits in Admiralty Act (the "SAA"), 46 U.S.C. §§ 741-752. ¹ We conclude that suit was proper under the FTCA, and we reverse.

The problem in this case is one of limitations. The plaintiffs have brought a maritime tort action against the United States. Apparently unaware of the possible applicability of the SAA to their cause of action, plaintiffs carefully complied with the provisions of the FTCA in asserting their claim and in waiting for the right time to bring suit. If, however, as the Government convinced the lower court, the FTCA does not apply but instead the suit is governed by the SAA, then they waited too long to sue. Determining which Act applies raises complicated questions concerning the evolution of the SAA from its inception in 1920 through its amendment in 1960. Before 1960, a case such as this was proper under the FTCA. The ultimate question is whether Congress intended, by the 1960 amendments to the SAA, to bring all maritime torts against the United States within the scope of that Act. Our examination of the history of the SAA, both as originally enacted and as it was amended in 1960, indicates quite clearly that Congress had no such intent. Most courts that have considered the issue, however, including this court in a prior decision, have reached a contrary conclusion. We believe that recent intervening Supreme Court authority calls for a reexamination of our former position. We conclude that while the 1960 amendments to the SAA were intended to plug existing loopholes in the scope of the district court's jurisdiction in admiralty, under the SAA, they were not intended to modify the scope of the district court's existing jurisdiction over maritime torts at law, under the FTCA. ²

I. Background

The facts, so far as relevant to the issues presented, are undisputed. The complaint was filed on November 6, 1978. It alleges that at 4:30 a.m. on the morning of August 22, 1976, James E. McCormick and a friend were crossing the waters of the Choctawhatchee Bay near Fort Rucker, Florida, "when they collided with an object which was unlawfully placed and improperly constructed by the United States Army so as to impede and create a hazard for those navigating the waters of the Choctawhatchee Bay." Appellants submitted their claims for damages to the Department of the Army on January 25, 1978, and on July 21, 1978. ³ On September 22, 1978, the Department denied their claims on the ground that administrative authority to settle the claims had expired on the second anniversary of the accident, which fell on August 22, 1978, the date that the Government now contends was the last day for filing suit. As noted, the complaint was filed on November 6, 1978.

If this case is properly maintained under the FTCA, then plaintiffs did everything they were supposed to do. The FTCA requires the submission of a claim prior to bringing suit. ⁴ And while the statute of limitations for FTCA actions requires that claims be submitted within two years of their accrual, suit thereon may, under some circumstances, be brought up to a year later. ⁵ There is no question of the timeliness of this complaint under the FTCA. Plaintiffs filed their claims within two years of their accrual, the Government denied those claims within six months, and within six months thereafter suit was filed.

A suit under the SAA, on the other hand, entails none of these complexities, although, as will be seen, that Act has hidden complexities of its own. There is no requirement that claims first be submitted to the appropriate agency. ⁶ More significant for this case is the statute of limitations for actions under the SAA: "Suits as authorized by this (Act) may be brought only within two years after the cause of action arises ...." 46 U.S.C. § 745. The SAA makes no express provision for the tolling of the statute during the pendency of any ongoing settlement negotiations or administrative review. ⁷

The issue we must decide, therefore, is which Act applies? That both remedies are not available is made clear by the FTCA itself, which provides that "(t)he provisions of this (Act) shall not apply to ... (a)ny claim for which a remedy is provided by sections 741-752 ... of Title 46, (the SAA,) relating to claims or suits in admiralty against the United States." 28 U.S.C. § 2680(d). We therefore turn to the history of the SAA in an effort to gauge its scope.

II. The SAA As Enacted

Prior to 1916, the doctrine of sovereign immunity barred any suit by a private owner whose vessel was damaged by a vessel owned or operated by the United States. Recognizing the inequities of denying recovery to private owners and the difficulties inherent in attempting to grant relief to deserving private owners through private Acts of Congress, Congress provided in the Shipping Act, 1916, that Shipping Board vessels employed as merchant vessels were subject to "all laws, regulations, and liabilities governing merchant vessels." 39 Stat. 730, 46 U.S.C. § 808. In The Lake Monroe, 250 U.S. 246, 39 S.Ct. 460, 63 L.Ed. 962 (1919), (the Supreme) Court held that the Shipping Act had subjected all Shipping Board merchant vessels to proceedings in rem in admiralty, including arrest and seizure. Congress, concerned that the arrest and seizure of Shipping Board merchant vessels would occasion unnecessary delay and expense, promptly responded to the Lake Monroe decision by enacting the Suits in Admiralty Act. The Act prohibited the arrest or seizure of any vessel owned by, possessed by, or operated by or for the United States. 46 U.S.C. § 741. In the place of an in rem proceeding, the Act authorized a libel in personam in cases involving such vessels, if such a proceeding could have been maintained had the vessel been a private vessel, and "provided that such vessel is employed as a merchant vessel." 41 Stat. 525, 46 U.S.C. 742 (1958 ed.).

United States v. United Continental Tuna Corp., 425 U.S. 164, 170-71, 96 S.Ct. 1319, 1323-24, 47 L.Ed.2d 653 (1976) (footnote omitted). In short, Congress sought through the SAA to effect a waiver of sovereign immunity for claims against Government vessels or cargo. But the scope of the waiver was confined to the problem generated by the Lake Monroe decision, namely, the arrest of Government shipping activity. The solution was the substitution of an in personam action against the United States for the in rem proceedings the libelant would most often otherwise have had to rely on in admiralty in an action against a private person or property. Hence the restriction in the original Act of the waiver of immunity to claims against "such vessel" and "such cargo." Note 1, supra. ⁸

Conditioning the waiver of immunity in the SAA on the res that is the object of an admiralty claim rather than on the nature of the cause of action that is its subject, however, left a class of maritime claims outside the scope of the SAA. Claims of negligence that did not involve Government vessels or cargo were simply not covered. "(T)hese Acts (the SAA and the PVA, supra note 8,) were not generally interpreted to encompass all actionable maritime claims against the United States. Maritime tort claims deemed beyond the reach of both Acts could be brought only on the law side of the district courts under the Federal Tort Claims Act." United Continental Tuna, 425 U.S. at 172, 96 S.Ct. at 1324-25. ⁹

Were this the extent of the law on the subject, our job would be much easier. The negligence alleged in this complaint gave rise to no cause of action in rem against Government vessel or cargo, was not the concern of the drafters of the SAA, and consequently does not preempt the operation of the FTCA under § 2680(d).

In 1960, however, Congress amended the SAA, striking the proviso of the first sentence of § 742 and adding the phrase "or if a private person or property were involved." That section now provides that, "(i)n cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States ...." (Emphasis added.) The operative sentence of § 742, despite continued references to "such vessel," "such cargo," and "the vessel or cargo charged with liability," is now open to the inference that the Government argues, namely, that any maritime tort is comprehended by the Act, as amended, thus completely preempting the operation of the FTCA in maritime tort actions against the Government. Eleven years later, in De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971), this court accepted the Government's argument, but now, with some guidance from the Supreme...