Taghadomi v. U.S.

• Decision Date: 22 March 2005
• Docket Number: No. 03-16129.,03-16129.
• Citation: Taghadomi v. U.S., 401 F.3d 1080 (9th Cir. 2005)
• Parties: Manouchehr Monazzami TAGHADOMI, Individually and as Special Administrator of the Estate of Nahid Davoodabadi, deceased; the Estate of Nahid Davoodabadi; Ahmad Davoodabadi, Father of Nahid Davoodabadi; Kobra Ahangary, Mother of Nahid Davoodabadi, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

401 F.3d 1080

Manouchehr Monazzami TAGHADOMI, Individually and as Special Administrator of the Estate of Nahid Davoodabadi, deceased; the Estate of Nahid Davoodabadi; Ahmad Davoodabadi, Father of Nahid Davoodabadi; Kobra Ahangary, Mother of Nahid Davoodabadi, Plaintiffs-Appellants, v.UNITED STATES of America, Defendant-Appellee.

No. 03-16129.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2004.

Filed March 22, 2005.

Peter A. Schey, Los Angeles, CA, argued the cause for the appellant; Teresa Tico, Hanalei, HI, was on the briefs.

Philip Berns, U.S. Attorney's Office, San Francisco, CA, argued the cause for the appellee; Peter D. Keisler, Assistant Attorney General, Edward H. Kubo, and Michael Chun, U.S. Attorney's Office, San Francisco, CA, were on the brief.

Appeal from the United States District Court for the District of Hawaii; Alan C. Kay, District Judge, Presiding.D.C. No. CV-01-00171-ACK/KSC.

Before O'SCANNLAIN, COWEN,^* and BEA, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

In this tort claim against the federal government arising out of an accident at sea, we explore whether suit can be brought under the Suits in Admiralty Act, the Public Vessels Act, or the Federal Tort Claims Act.

I

This case arises from an accident at sea.¹Manouchehr Monazzami Taghadomi(a U.S. citizen) and his wife Nahid Davoodabadi(a citizen of Iran) rented a kayak during their honeymoon in Maui.Their boat was buffeted by harsh wind and waves, and Nahid was tossed overboard, attacked by a shark, and died.Monazzami washed up on an island and was stranded for three days before he was rescued.He was hospitalized for several days.

While the couple was still in the foundering kayak, a witness on land noticed it through his binoculars.Concerned, he telephoned the Coast Guard's Maui office and gave a description of the kayak and its location.About twenty minutes after receiving the call, the Maui office contacted the Coast Guard Operations Center in Honolulu.The Operations Center, in turn, contacted a Coast Guard cutter — the Kiska — and directed it toward the kayak.The Kiska conducted a brief search, but darkness soon fell, and at about seven o'clock that evening the search was called off.

This lawsuit followed.Monazzami originally filed a complaint, individually and as special administrator of the estate of Nahid, against Extreme Sports Maui, the company that rented the kayak to Taghadomi.In subsequent amended complaints the estate and Nahid's parents were each added as separate plaintiffs and the United States was added as a defendant.²The plaintiffs(collectively, the "survivors") seek damages from the United States for wrongful death and emotional distress.They allege that the Coast Guard was negligent both in carrying out its rescue operation and in failing to contact local authorities who had access to better rescue equipment that might have been able to save the couple.The United States moved to dismiss or, in the alternative, for summary judgment.The survivors opposed the motion and also moved to amend their Complaint once again to clarify their claims against the United States.The district court granted the United States' motion for summary judgment, holding that the survivors' claims are not cognizable, and denied as futile the survivors' motion to amend.The court entered judgment for the United States and this appeal timely followed.We review the grant of summary judgment de novo.SeeOliver v. Keller,289 F.3d 623, 626(9th Cir.2002).

II

The United States, of course, is liable in court only when it has waived its sovereign immunity.Three immunity-waiving statutes are relevant here.The first is the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674 et seq., which generally renders the United States liable for its torts to the same extent as a private actor.The FTCA includes an exception, however, for "[a]ny claim for which a remedy is provided" by either of the other two statutes relevant to this case.28 U.S.C. § 2680.These are the Public Vessels Act ("PVA"), 46 U.S.C.App. § 781 et seq., and the Suits in Admiralty Act ("SAA"), 46 U.S.C.App. § 741 et seq.

The PVA renders the United States liable in admiralty for "damages caused by a public vessel of the United States."³46 U.S.C.App. § 781.The PVA, however, contains a special reciprocity requirement that permits foreign nationals to sue the U.S. government only if their country of nationality would permit a similar suit by a U.S. citizen. 46 U.S.C.App. § 785.

The SAA is broader: it renders the United States liable in admiralty in any case in which, "if a private person or property were involved, a proceeding in admiralty could be maintained."46 U.S.C.App. § 742.It contains no reciprocity requirement.One might wonder why the PVA even exists, since the SAA appears to cover all admiralty claims, including those involving a public vessel.The answer lies in history.Until 1960 the SAA applied only to "merchant vessels," a category mutually exclusive of "public vessels."SeeUnited States v. United Cont'l Tuna Corp.,425 U.S. 164, 167 n. 1, 96 S.Ct. 1319, 47 L.Ed.2d 653(1976).For this and other reasons, admiralty lawyers preparing to file a claim were often uncertain which statute to file under — the PVA, the SAA, or in some cases the FTCA or the Tucker Act.⁴Congress solved the problem by amending the SAA; one of the changes removed the reference to merchant vessels.SeeUnited Cont'l Tuna,425 U.S. at 166-78, 96 S.Ct. 1319.

The survivors cannot bring their claims under the PVA or the SAA, both because of the PVA's reciprocity requirement and because they failed to file within the applicable limitations periods under those statutes.They therefore seek, instead, to bring their claims under the FTCA.

A

The first question we must answer is whether the survivors' claims are maritime in nature — that is, whether they fall within federal admiralty jurisdiction.For the PVA and the SAA are relevant only to maritime claims and thus pose no obstacle to asserting non-maritime claims under the FTCA.

The survivors seek to bring two different claims against the United States.First, they claim that the Coast Guard cutter Kiska's search for the kayakers was negligently carried out (either by its crew or by land-based Coast Guard officers).We refer to this as the "negligent-search claim."Second, they claim that the two Coast Guard offices (in Maui and Honolulu) which knew about the kayak in distress negligently failed to contact the Maui Fire Department or any other local agency with access to a helicopter or other rescue vessels.We refer to this as the "failure-to-communicate claim."

No one disputes that the negligent-search claim is maritime in nature.The survivors argue, however, that the failure-to-communicate claim is not maritime and therefore not within the scope of the SAA or the PVA.Thus, they conclude, it is the proper subject of an action under the FTCA.

A tort claim falls within the admiralty jurisdiction of the federal courts when two conditions are met.First, the tort must occur on or over navigable waters; this is the "locality" or "situs" test.SeeSolano v. Beilby,761 F.2d 1369, 1370-71(9th Cir.1985);Guidry v. Durkin,834 F.2d 1465, 1469(9th Cir.1987).Second, the actions giving rise to the tort claim must "bear a significant relationship to traditional maritime activity."Executive Jet Aviation, Inc. v. City of Cleveland,409 U.S. 249, 268, 93 S.Ct. 493, 34 L.Ed.2d 454(1972).This is the "nexus" or "relationship" test.SeeSolano,761 F.2d at 1371;Guidry,834 F.2d at 1469.Admiralty jurisdiction exists only when both these requirements are satisfied.⁵SeeWhitcombe v. Stevedoring Services of America,2 F.3d 312, 314 n. 2(9th Cir.1993).The survivors contend that neither test is met here.

With regard to the locality test, the survivors argue that because the Coast Guard's actions (or failure to act) took place entirely on land, the alleged negligence did not occur on navigable waters.This contention is unavailing, however, because it ignores the clear law of our circuit that the situs of a tort for the purpose of determining admiralty jurisdiction is the place where the injury occurs.⁶SeeSolano,761 F.2d at 1371(citing cases);Guidry,834 F.2d at 1469;Oppen v. Aetna Ins. Co.,485 F.2d 252, 256(9th Cir.1973)("The locus of a tort is the place where injury takes effect.").

Solano itself makes clear that this rule holds even when some of the negligent activity occurs on land.In Solano, two longshoremen were moving a Cadillac down a ramp onto a ship, when — because of the car's defective brakes — it began rolling out of control and caused a collision that injured both men.They brought an admiralty action against the marine cargo terminal which had stored the Cadillac, alleging that it negligently failed to inspect the car and warn the men of the defective brakes.Id. at 1370.We held that "[t]he injury ... occurred on the ramp of a ship, satisfying the requirement of maritime locality."Id. at 1371.Notably, in a subsequent case we held that a suit against a cargo terminal operator for damage that occurred to cargo while inside the terminal was not within admiralty jurisdiction.Whitcombe,2 F.3d at 314-15("[D]amage to cargo in the terminal operator's warehouse is jurisdictionally distinguishable from damage that occurs while loading the vessel.").It is clear, then, that the place of injury is the determinative factor.See alsoSmith v. Lampe,64 F.2d 201, 202(6th Cir.1933)("[W]here the negligent act orginates on land and the damage occurs on water, the cause of action is within the admiralty jurisdiction.");In re Motor Ship Pacific Carrier,489 F.2d 152, 157(5th Cir.1974);2 Am.Jur.2dAdmiralty§ 75("For the purpose of determining admiralty jurisdiction, the tort is deemed to occur, not where the wrongful act or omission has its inception, but where the impact of the...