Thames Shipyard & Repair Company v. United States: coast guard given broad authority to forcibly remove unwilling captains from their vessels.
Efforts to remove the water from the ship proved futile as the NORTHERN VOYAGER began to develop a port-side list. (4) Increased flooding worsened the tilt, causing the vessel to progressively settle further into the water. (5) Due to these concerns, the Coast Guard ordered the full evacuation of the NORTHERN VOYAGER. (6) Captain Haggarty opposed the Coast Guard's decision and instead wanted to pursue other options for pumping and salvage. (7) However, the Coast Guard made it clear that if he did not comply with the order, they would "subdue him physically" to remove him from the vessel. (8) Fifty-five minutes after the Coast Guard removed all personnel from the NORTHERN VOYAGER, the ship capsized and sank. (9)
The vessel owner and insurer brought suit in the United States District Court for Massachusetts against the United States under the Suits in Admiralty Act (10) (SAA). (11) The complaint alleged that the Coast Guard exceeded its authority by removing Captain Haggarty against his will and that the Coast Guard negligently interfered with salvage efforts. (12) The court held that the discretionary function exception precluded the United State's liability and granted summary judgment. (13) An appeal followed, and the United States Court of Appeals for the First Circuit affirmed the district court's ruling as to the application of the discretionary function exception, but remanded on the issue of negligent interference.
The doctrine of sovereign immunity prohibits suits against governmental entities unless they waive their sovereign immunity and consent to be sued. (14) The United States has waived its sovereign immunity from suit for maritime torts committed by its agents in both the SAA, (15) and the Public Vessels Act (16) (PVA). Although neither the SAA nor the PVA contain an express discretionary function exception, it has been implied in both. (17) The fundamental purpose of the discretionary function exception "is to insulate certain governmental actions and decisions based on considerations of public policy from tort liability by private individuals." (18) The exception is intended to preclude "judicial 'second-guessing' of legislative and administrative decision grounded in social, economic and political policy." (19) Thus, the discretionary function exception "insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment." (20)
In Berkowitz v. United States (21) the Supreme Court outlined a conjunctive, two-part test for the application of the discretionary function exception. (22) The Court ruled that a reviewing court must first determine whether the challenged conduct involves an element of judgment, meaning that it is a "matter of choice for the acting employee." (23) The conduct is, therefore, non-discretionary when a federal statute, regulation, or policy specifically prescribes a course of action to follow. (24) To assess the second part of the test, the reviewing court must determine whether the judgment in question "is of the kind that the discretionary function was designed to shield," such as "governmental actions and decisions based on considerations of public policy." (25)
Moreover, the discretionary function exception does not apply in cases where the official has conducted acts which are unconstitutional, prohibited by statute, or exceed the scope of the official's actual authority. (26) For example, in Hatahley v. United States, (27) Navajo Indians sued the United States under the Federal Torts Claim Act, (28) for the destruction of their horses by agents of the Federal Government. (29) The agents, purporting to act under the Utah abandoned horse statute, (30) appropriated and sold or destroyed the Indian's horses without giving the Indians any written notice, which was a condition precedent under the Act. (31) The Supreme Court held, in part, that these agents acted beyond their delegated authority and therefore, were not protected by the discretionary function exception. (32)
As a governmental entity, the Coast Guard may also be subject to suit under the PVA and the SAA unless the discretionary function exception applies to the case. The Coast Guard receives its search and rescue authority from 14 U.S.C. [section] 88, (33) which provides that the Coast Guard may perform "any and all acts necessary to rescue and aid persons and protect and save property." (34) The judiciary has interpreted 14 U.S.C. [section] 88 as not creating an affirmative duty for the Coast Guard to provide rescue services on demand. (35) However, once the Coast Guard makes a decision to accept a mission, it should abide by the standard of "acceptable seamanship". (36)
In the noted case, the First Circuit addressed the issue of whether the Coast Guard may compel an unwilling master to evacuate his vessel when it deems such action necessary to protect lives. (37) The court began its analysis by rejecting the proposition that the discretionary function exception applies to decisions of whether or not to undertake a rescue mission, but not to decisions made during the course of a rescue mission once undertaken. (38) In so doing, the court distinguished the two cases put forth by the owner and insurer; Indian Towing Co. v. United States (39) and United States v. Sandra & Dennis Fishing Corporation (40,41) The court held that both cases were "inapposite" because the discretionary function exception did not apply in either case, and neither case was "illustrative of the exercise of policy judgments," but instead "involved purely technical" considerations. (42)
The First Circuit then applied the Berkowitz two-prong test to determine whether the Coast Guard's decision to forcefully evacuate the NORTHERN VOYAGER was a policy decision and thus protected by the discretionary function exception. (43) The court concluded that both prongs were met. (44) In applying the first prong, the court determined that Congress, through 14 U.S.C [section] 88, (45) gave the Coast Guard discretion to exercise its judgment when conducting rescue operations. (46) The court also looked at the language in the National Search and Rescue Manual (47) and concluded that the publication allows the Coast Guard to exercise discretion when performing its rescue functions. (48)
In applying the second prong of the test, the First Circuit determined that the Coast Guard made a true policy choice when deciding to evacuate the vessel. (49) The court concluded that the choice involved the "balancing of incommensurable values-such as human safety, protection of property, autonomy, and the allocation of resources-typically associated with policy decisions" and not merely "technical and routine" factors. (50)
The First Circuit then considered the issue of whether the Coast Guard acted outside the scope of its statutorily granted authority. (51) The court framed the issue as whether 14 U.S.C. [section] 88, "permits the Coast Guard, when it deems such action necessary to protect lives, to compel an unwilling master to evacuate his vessel." (52)
The court lacked federal authority on point because this was a case of first impression. (53) Therefore, the First Circuit turned to state law for guidance and analogized the actions of the Coast Guard to the actions of state public officials during times of emergencies on land. (54) The court noted that every state in the nation has statutes providing for the exercise of police power during natural disasters. (55) Moreover, the court determined that the power to order mandatory evacuations is the most common form of this authority. (56) To further bolster their argument, the court noted that Coast Guard policy gives priority to the saving of human lives over the saving of property. (57) In addition, the court determined that the Coast Guard was not the equivalent of a commercial or private salvor and, thus, the owner of a vessel is not entitled to decline salvage assistance from the Coast Guard. (58) Therefore, the court determined that it is reasonable to assume that Congress intended to confer powers to the Coast Guard "analogous to those possessed by state safety officials, namely, the power to rescue a person even against his will in life-threatening situations." (59)
The First Circuit limited the Coast Guard's authority to engage in forcible evacuations, however, to situations involving life-threatening circumstances. (60) In addition, the court imposed an objective standard by which to judge whether a forcible evacuation is warranted. (61) The court noted that the decision to order a forcible evacuation "requires an objectively reasonable belief by safety officers that a true emergency exists and there is an immediate need for assistance or aid." (62) The First Circuit concluded that the Coast Guard possesses the authority to order forced evacuations in life threatening situations and because such a decision is protected under the discretionary function exception, the Coast Guard was not subject to liability for removing Captain Haggerty from his vessel. (63)
The dissent argued that the Coast Guard lacked actual authority to remove masters from their vessels and, therefore, the discretionary function exception was not applicable. (64) The dissent asserted that the language from 14 U.S.C. [section] 8865 grants the Coast Guard general implementary powers, not the authority to forcibly remove a master from his vessel. (66) Looking to identical language in analogous federal statutes, the dissent determined that Congress could not have meant such language to "constitute an independent grant of unbounded authority." (67) Relying on Hatahley, the dissent concluded that the Coast Guard was acting beyond the scope of their actual authority and, therefore, the discretionary function exception did not apply to the decision to remove Captain Haggerty. (68)
The dissent also refuted the majority's view that the Coast Guard was distinguishable from commercial salvors and private mariners and, therefore, Captain Haggarty was entitled to reject the salvage efforts of the Coast Guard. (69) The dissent argued that courts have uniformly held that the Coast Guard is "legally indistinguishable from private mariners regarding its duty to rescue" and that that the Coast Guard "becomes liable for an attempted rescue when its actions fail to comply with standards of ordinary care and acceptable seamanship." (70) The dissent concluded that in light of this precedent, the Coast Guard, acting as a private salvor, failed to comply with the standard of ordinary care and acceptable seamanship when they forcibly evacuated Captain Haggarty from his vessel. (71)
The First Circuit has taken a courageous, yet unsubstantiated step in determining that in life-threatening situations, the Coast Guard has the authority to order a forced evacuation of a vessel and that these decisions are protected by the discretionary function exception. The First Circuit acknowledges that its interpretation of 14 U.S.C. [section] 88, (72) allowing the forcible evacuation of vessels by the Coast Guard, is unsupported by federal judicial precedent on point nor legislative history. (73) The court admits that, "nothing in the legislative history specifically addresses the power to order a forcible evacuation." (74) The First Circuit's reliance on a Senate Report suggesting the U.S. Coast Guard should have the "broadest possible" authority, is weak legislative foundation for such a broad holding. (75)
Moreover, the First Circuit's determination that the language, "any and all acts necessary to rescue and aid persons and protect and save property" expands the scope of the Coast Guard's powers beyond those implied from the substantive provisions of 14 U.S.C. [section]8876 is also flawed. (77) Cases interpreting identical language in other federal statutes have held instead that "any and all acts necessary" provides for the implementation of the core purposes of the statute, not a grant of independent and unauthorized powers. (78)
Recognizing its flawed analysis, the First Circuit attempts to narrow the scope of the holding by limiting the Coast Guard's authority to engage in forcible evacuations in life-threatening situations only. (79) The court relies on the emergency aid exception to the Fourth Amendment warrant requirement limitation in holding that the Coast Guard must have an "objectively reasonable belief that "a true emergency exists and there is immediate need for assistance or aid" before it can order a forced evacuation of a vessel. (80)
None of the cases cited by the court in support of this limitation, however, were maritime in nature, nor did the cases apply this principle to the Coast Guard. (81) As the dissent states, "to avoid giving the Coast Guard the unlimited power it claims, yet still give it enough authority to meet the discretionary immunity test, the majority judicially creates a limitation to [section] 88 out of whole cloth." (82)
The court, therefore, faced with a lack of precedent and statutory history in support of its opinion, was forced to seek assistance through state law. (83) However, the state statutes the majority cites as authority for forcible removals in land-based emergencies "contain specific statutory language or have legislative histories granting such authority." (84) In contrast, 14 U.S.C. [section] 88 (85) has no specific language or legislative history granting the authority to forcibly remove a captain from his vessel. (86) Therefore, the court's analogy to state law is too tenuous and fails.
The First Circuit's ruling is also inconsistent with the well established maritime principle that shipowners have a right to refuse salvage assistance. (87) By concluding that the Coast Guard is not the equivalent of a commercial salvor, the court simply sidestepped this fundamental principle of maritime law. The First Circuit's trivial justification for its circumvention-that dicta in two district court cases (88) limit the right to decline salvage assistance to instances where only the owner's property interests are at stake-is not persuasive enough to overrule this established maritime principle. Furthermore, the court's failure to address the authority cited by the dissent, holding that the Coast Guard is legally indistinguishable from private mariners, further weakens their ruling.
In sum, it seems the First Circuit, in arriving at its ruling, was guided more by the Coast Guard's policy of saving lives over the saving of property than it was by judicial precedent. (89) It is true, as the majority notes "that the Coast Guard, once on the scene, would be hard pressed simply to abandon the imperiled seaman." (90) However, the First Circuit's well intentioned grant of authority to the Coast Guard is not supported by any authority in law, practice or maritime tradition. Reliance on faulty analogies, district court dicta, and doctrines not related to maritime activities are not sufficient to support the First Circuit's ruling. Furthermore, if the court concluded that such a fundamental shift in policy was necessary, it should have left the decision to Congress. A clear legislative mandate, with records of legislative intent, would leave courts with clear guidance when confronted with similar situations and avoid the divergence in the circuits that is sure to follow.
Alberto E. Struck is a 2005 graduate of Tulane University Law School and an associate attorney with the law firm of Fowler, Rodriguez, and Chalos.
(1.) See Thames Shipyard & Repair Co. v. United States, 350 F.3d 247, 249 (1st Cir. 2003)., cert, denied, 124 S. Court. 2848 (2004).
(2.) See id.
(3.) See id. at 249.
(4.) See id.
(5.) See id.
(6.) See Thames Shipyard, 350 F.3d at 249.
(7.) See id.
(8.) See id. at 250.
(9.) See id. at 250-51.
(10.) 46 U.S.C. App. [section][section] 741-52 (2000).
(11.) See Northern Voyager L.P. v. Thames Shipyard & Repair Co., 214 F.Supp.2d 47, 4950 (D. Mass. 2002).
(12.) See id. at 50. (this note will not address the issue of negligent interference nor the Good Samaritan Rule addressed by the court in this case).
(13.) See id. at 52.
(14.) Thomas Scheoenbaum, Admiralty and Maritime Law [section]18-1, at 960 (3d ed. 2001).
(15.) 46 U.S.C. App. [section][section] 741-52 (2000) (waiving sovereign immunity "in cases where if such vessel were privately owned or operated ... or if a private person or property were involved" a proceeding in admiralty could be maintained).
(16.) 46 U.S.C App. [section][section] 781-90 (2000) (allowing recovery against the United States for damages "caused by a public vessel of the United States").
(17.) See Thames Shipyard, 350 F.3d at 253. See also, Limar Shipping Ltd. v. United States, 324 F.3d 1, 6-7 & n.3 (1st Cir. 2003); United States Fire Ins. Co. v. United States, 806 F.2d 1529, 1534-35 (11th Cir. 1986), (reasoning that the "separation of powers" concerns that justify reading a discretionary function exception into the SAA warrant reading the same exception into the PVA, especially given the close relationship between the two statutes).
(18.) Berkowitz v. United States, 486 U.S. 531, 536-37 (1988).
(19.) Thames Shipyard, 350 F.3d at 254.
(21.) 486 U.S. 531 (1988).
(22.) See id.
(23.) See Thames Shipyard, 350 F.3d at 254. (quoting Berkowitz, 486 U.S. at 536).
(24.) See Berkowitz, 486 U.S. at 536.
(25.) Id. at 536-37.
(26.) See Thames Shipyard, 350 F.3d at 254.
(27.) 351 U.S. 173 (1956).
(28.) 28 U.S.C. [section][section]2671-2680(2000).
(29.) See Hatahley, 351 U.S. at 174.
(30.) U.C.A 1953 [section] 47-2-1 (2000).
(31.) See Hatchley, 351 U.S. at 178.
(32.) See Hatchley, 351 U.S. at 180-81.
(33.) 14 U.S.C. [section] 88 (2000).
(34.) 14 U.S.C. [section] 88 (2000).
(35.) See Sandra & Dennis Fishing, 372 F.2d , 189, 195 (1st Cir. 1967).
(36.) Id. at 197.
(37.) Thames Shipyard, 350 F.3d 247, 257 (1st Cir. 2004).
(38.) Id. at 255.
(39.) 350 U.S. 61 (1955).
(40.) 372 F.2d 189 (1st Cir. 1967).
(41.) Thames Shipyard, 350 F.3d at 255-57.
(43.) See id. at 256-57.
(44.) See id. at 256.
(45.) In pertinent part, 14 U.S.C. [section] 88 provides:
(a) In order to render aid to distressed persons, vessels, and aircraft on and under the high seas and on and under the waters over which the United States has jurisdiction and in order to render aid to persons and property imperiled by flood, the Coast Guard may: (1) perform any and all acts necessary to rescue and aid persons and protect and save property; (2) take charge of and protect all property saved from marine or aircraft disasters, or floods, at which the Coast Guard is present, until such property is claimed by persons legally authorized to receive it or until otherwise disposed of in accordance with law or applicable regulations, and care for bodies of those who may have perished in such catastrophes; (3) furnish clothing, food, lodging, medicines, and other necessary supplies and services to persons succored by the Coast Guard.
(46.) See Thames Shipyard, 350 F.3d at 256.
(47.) 1 Joint Chiefs of Staff & U.S. Coast Guard, National Search and Rescue Manual v, [section] 3.a (1991). (providing that because of the many variables encountered during search and rescue ("SAR") operations and the individuality of each SAR case, the guidance provided in this Manual must be tempered with sound judgment, having due regard for the individual situation). See also U.S. Coast Guard, Coast Guard Addendum to the National Search and Rescue Manual at 2. (providing that Coast Guard personnel are expected to exercise broad discretion in performing the functions discussed).
(48.) See Thames Shipyard, 350 F.3d at 256.
(49.) See id. at 256-57.
(51.) See id at 257.
(53.) See id.
(54.) See Thames Shipyard, 350 F.3d at 258.
(55.) See id.
(56.) See id.
(57.) Id. at 259.
(58.) See id. at 259.
(59.) Thames Shipyard, 350 F.3d at 259.
(60.) See id.
(61.) See id.
(63.) See id at 260.
(64.) Thames Shipyard, 350 F.3d at 260.
(65.) 14 U.S.C. [section] 88 (2000)
(66.) See Thames Shipyard, 350 F.3d at 269.
(67.) See Thames Shipyard, 350 F.3d at 257.
(68.) See id. at 267.
(69.) See id. at 272.
(70.) Id. See e.g., In re American Oil Co., 417 F.2d 164, 168 (5 Cir. 1969).
(71.) See W. at 273.
(72.) 14 U.S.C. [section] 88 (2000).
(73.) See Thames Shipyard, 350 F.3d at 257.
(75.) Id. at 258, n.8. (explaining that the Senate Report that accompanied the legislation of 14 U.S.C. [section] 88 stated that "section 88 authorizes the Coast Guard, in the broadest possible terms without limitation as to method or place, to save lives and property.").
(76.) 14 U.S.C. [section] 88 (2000).
(77.) See Thames Shipyard, 350 F.3d at 269. (quoting PSC of New York v. FERC, 866 F.2d 487, 492 (D.C. Cir. 1989)), see also Thames Shipyard v. United States, 2004 WL 933076, 6 (2004).
(78.) See Thames Shipyard, 350 F.3d at 269.
(79.) See id. at 259.
(80.) See id. (holding that the body of case law developed under the 'emergency aid' exception to the Fourth Amendment's warrant requirement lends support for evacuation authority).
(81.) See id. at 270.
(83.) See Thames Shipyard, 350 F.3d at 258.
(84.) See id.
(85.) 14 U.S.C. [section] 88 (2000).
(86.) See Thames Shipyard, 350 F.3d at 275.
(87.) See 2 Thomas J. Shoenbaum, Admiralty & Maritime Law [section] 14-2 at 838-39 (3d ed. 2001) (explaining that "salvage cannot be forced upon an owner or his agent in possession of the vessel." Furthermore, "a salvor who acts without the express or implied consent of the owner is a 'gratuitous intermeddler,' who is not entitled to any salvage award."). See also, Bonifay v. The Paraporti, 145 F.Supp. 879 (E.D. Va. 1956); Consolidated Towing Co. v. Hannah, 509 F. Supp. 1031 (W.D.Mo. 1981).
(88.) See Smit Americas, Inc. v. M/T MANTINIA, 259 F.Supp.2d 118 (D.P.R. 2003). (suggesting that an owner's right of refusal is limited in situations involving imminent danger of large losses of the property of third persons); Ramsey v. Pohatcong, 77 F. 996 (S.D.N. Y. 1896)(holding that tugboat was "bound to respect the master's decision to refuse salvage assistance" where case involved only ordinary property interests and "did not involve imminent danger to life, nor the danger of large losses of the property of third persons").
(89.) See Thames Shipyard, 350 F.3d at 256.
(90.) Id. at 257, fn. 6.
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|Author:||Struck, Alberto E.|
|Publication:||Loyola Maritime Law Journal|
|Date:||Jan 1, 2005|
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