Smith v. U.S.

• Citation: 251 F.Supp.2d 1255
• Decision Date: 05 March 2003
• Docket Number: No. CIV.A. DKC 2001-2131.,CIV.A. DKC 2001-2131.
• Parties: Carl L. SMITH, et al., v. UNITED STATES of America.
• Court: U.S. District Court — District of Maryland

251 F.Supp.2d 1255

Carl L. SMITH, et al., v. UNITED STATES of America.

No. CIV.A. DKC 2001-2131.

United States District Court, D. Maryland.

March 5, 2003.

Nadira Clarke, Office of the United States Attorney, Baltimore, MD, Peter F. Frost, United States Department of Justice, Aviation and Admiralty Litigation, Washington, DC, for defendant.

Allan A. Noble, Budow and Noble PC, Bethesda, MD, for plaintiff.

MEMORANDUM OPINION

CHASANOW, District Judge.

Presently pending and ready for resolution in this admiralty tort action brought under the Public Vessels Act, 46 U.S.C. § 781 et seq., and the Suits in Admiralty Act (SAA), 46 U.S.C. § 741 et seq., is Defendant United States of America's Motion for Summary Judgment. The issues have been fully briefed and no hearing is deemed necessary. Local Rule 105.6. For the reasons that follow, the court will dismiss the complaint.

I. Background

The following facts are alleged by Plaintiffs Carl L. Smith and Ace American Insurance Co. (Ace). On the morning of July 31, 1999, Plaintiff Smith was operating his 31 foot Mainship vessel, the "Lady Bridgette," in the waters of Herring Bay. Smith's young son was in the boat with him. Some time around 6:30 p.m. that day, the "Lady Bridgette" suddenly and without warning ran upon the submerged steel piling of Herring Bay Daybeacon 3 ¹ (Daybeacon 3). The striking of the submerged steel piling of Daybeacon 3 caused serious damage to the vessel and serious personal injuries to Smith.

At the time of the striking of the submerged steel piling, there was nothing visible to warn boaters like Plaintiff Smith that there was an underwater obstruction where the missing daybeacon should have been located. The United States Coast Guard (Coast Guard) was responsible for the maintenance of the daybeacon. Prior to the striking of the submerged steel piling by Smith, the Coast Guard had been advised that the daybeacon was not present in its location and that its structure was missing. The Coast Guard was aware of the missing daybeacon and failed to take proper action to locate, replace, or re-mark the daybeacon. While a Coast Guard vessel was sent from Annapolis to look for the missing daybeacon, the vessel failed to locate or re-mark it.

The Coast Guard is the governmental agency responsible for the maintenance and replacement of aids to navigation like the Herring Bay Daybeacon 3. Plaintiffs allege that the Coast Guard failed to use reasonable care in locating, replacing, and re-marking Daybeacon 3 after being advised that it was missing; the Coast Guard breached its duty owed to Plaintiffs when it negligently undertook to locate and negligently failed to mark, replace, and remove the submerged daybeacon; and the Coast Guard breached its duty to Plaintiffs promptly and properly to warn boaters like Smith of the missing daybeacon and to remove the remains of the Daybeacon 3, which constituted a dangerous submerged obstruction. Plaintiffs further allege that the striking of the submerged daybeacon by Smith's vessel and his personal injuries were proximately caused by the negligence of the Defendant, United States of America, acting through and by the U.S. Coast Guard. Once Defendant undertook to locate and replace the daybeacon, it was obligated to use reasonable care to locate and mark the missing daybeacon and to notify boaters of the missing aid to navigation. Defendant failed to use such reasonable care.

Plaintiffs filed their complaint in this court on July 20, 2001. Plaintiff Smith seeks damages in the sum of $200,000 for injuries sustained to his neck, back, knees, and right ankle and $47,478 for damages sustained to his vessel consisting of repair costs, salvage costs, and towage charges. Ace, as the subrogated underwriter for Smith, claims that it is entitled to recover those sums paid in accordance with the applicable policy of the insured. Defendant brought its motion for summary judgment pursuant to Fed.R.Civ.P. 56 on May 16, 2002.

II. Standard of Review

Although Defendant has brought its motion as one for summary judgment, it argues that the "discretionary function exception" applies to limit the SAA's waiver of sovereign immunity and bars Plaintiffs' suit. Federal courts have consistently held that they lack subject matter jurisdiction if the discretionary function exception bars suit. Williams v. United States, 50 F.3d 299, 305 (4th Cir. 1995). Defendant's motion is therefore more properly brought as one to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1).²

In a Rule 12(b)(1) motion where the existence of the court's subject matter jurisdiction is at issue, the court may "look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. FDIC, 999 F.2d 188,191 (7th Cir.1993) (citations omitted). See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). It is the plaintiffs burden to prove that jurisdiction in this court is proper. See DeBauche v. Virginia Commonwealth Univ., 7 F.Supp.2d 718, 721 (E.D.Va.1998). The court must presume that all factual allegations in the complaint are true and make all reasonable inferences in the plaintiffs favor. Id.

III. Analysis

Plaintiffs and Defendant agree that the central issue in this case is whether the Coast Guard "should have marked or replaced [Daybeacon 3] sooner than they did." See Paper 11, at 6; Paper 14, at 1. Plaintiffs also maintain that Defendant breached its duty promptly and properly to warn boaters like Plaintiff Smith of the missing daybeacon.

The following additional facts are uncontroverted in affidavits and deposition testimony. On the morning of July 31, 1999, the Coast Guard Activities Baltimore (Activities Baltimore) received a report that Herring Bay Daybeacon 3 was missing its dayboards. After learning of this discrepancy, Activities Baltimore: issued a Broadcast Notice to Mariners³ at approximately 9:50 a.m. reporting that Daybeacon 3 was missing its dayboards and notified Aids to Navigation Team (ANT) Sledge⁴ of the discrepancy. At roughly the same time, Boatswain's Mate Third Class Joseph S. Gary was sent in a small boat from Coast Guard Station Annapolis (Station Annapolis) to investigate the report of the missing dayboards. Petty Officer Gary was unable to locate Daybeacon 3 at all in Herring Bay and at approximately 10:30 a.m., he reported to Station Annapolis that the entire structure of the daybeacon was missing. Station Annapolis then immediately reported that the entire daybeacon was missing (both dayboards and structure) to the SAR Mission Coordinator (SMC) at Activities Baltimore. The SMC at Activities Baltimore claims, however, that it did not become aware that the entire structure of the daybeacon was missing until after Plaintiffs boat hit the daybeacon's steel piling. Slightly before Station Annapolis reported the missing daybeacon therefore, at approximately 10:10 a.m., Activities Baltimore notified ANT Sledge of the missing dayboards only; the SMC at Activities Baltimore never advised ANT Sledge or Chief Arthur B. Ford, Jr. (Chief Ford), the Coast Guard Officer in charge of ANT Baltimore on July 31, 1999, that the entire daybeacon structure was missing.

At approximately 6:30 p.m. of the same day, July 31, 1999, Plaintiff Smith's vessel struck the submerged remains of Daybeacon 3. Some time after this accident occurred, Activities Baltimore issued a second Broadcast Notice to Mariners revising the warning for Herring Bay and notifying that dayboards and support structure for Daybeacon 3 were destroyed and missing and that the remaining structure may pose an additional hazard. At approximately 12:45 a.m., August 1, 1999, ANT Sledge placed a temporary lighted buoy to mark the position of the submerged piling of Daybeacon 3. Activities Baltimore then issued a third Broadcast Notice to Mariners warning that Daybeacon 3's dayboards and supporting structures were destroyed and missing and noting the position of the temporary lighted buoy.

Defendant argues that marking and/or replacing a missing aid to navigation like Daybeacon 3 or warning about faults are "discretionary functions" for which the United States government and its administrative agencies cannot be liable. The Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), authorizes suits against the United States for damages caused by the negligent or wrongful acts or omissions of those acting within the scope of government office or employment. One important exception to this waiver of sovereign immunity, however, is the "discretionary function exception" contained at 28. U.S.C. § 2680(a), which provides that no liability shall lie for any claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the party of a federal agency or an employee of the Government, whether or not the discretion involved be abused." According to the Supreme Court, this exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988) (quoting United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 2761-62, 81 L.Ed.2d 660, (1984)).

Plaintiffs have brought their action against the United States pursuant to the Suits in Admiralty Act (SAA), 46 U.S.C. § 741 et. seq., however, and not the FTCA. The SAA does not contain the explicit discretionary function exception that the FTCA does. Nevertheless, in Tiffany v. United States, 931 F.2d 271 (4th Cir.1991), the Fourth Circuit confirmed an implied discretionary function exception in the SAA, observing that "[e]ach circuit that has considered the matter has concluded that actions brought...