Opinion
No. 99-2521, Section "K"(1)
October 13, 2000
ORDER AND REASONS
Before the Court are the United States' Motion to Dismiss and/or Summary Judgment (Doc. 25) and T.L. James Co. Inc.'s ("T.L. James") Motion for Summary Judgment (Doc. 20). The Court having reviewed the pleadings, memoranda and the relevant law, finds that these motions have merit for the reasons that follow.
Background
This case arises out of an alleged accident that occurred on October 14, 1997, when Michael Joseph Johnson ("Johnson") was a guest passenger on the crew vessel the M/V MISS PEARL which ran aground near Light 51 in the Atachafayala Bay Channel allegedly causing him injury. Johnson was on the back deck of the vessel with several other passengers including crew personnel. He had gone outside to smoke while the boat was not in open water but was in the instant channel. When the vessel ran aground, he was thrown and was injured. Johnson has undergone neck surgery. The channel had recently been dredged by TL James pursuant to a contract with the Government.
The Court will first address the Government's Motion for Summary Judgment.
Standard for Motion for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651, 656, (5th Cir. 1996), (citingSkotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Finally, the court notes that the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court now turns to the merits of the arguments with these standards in mind.
Government's Motion to Dismiss and/or for Summary Judgment
The Government moves for summary judgment based on its contention that it has not waived sovereign immunity for plaintiffs claims which challenge discretionary decisions regarding the dredging and marking of the Atachafayala Bay Channel made by the Government. The discretionary function exception is set forth in the Federal Tort Claims Act ("the Act") 28 U.S.C. § 2680. It limits the United States' waiver of sovereign immunity under the Act by providing that the waiver not apply to:
any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.28 U.S.C. § 2680 (a) (1994).
In United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267 (1991), the Supreme Court held that "when established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion."Id. at 324, 1274. The Supreme Court determined that as a result of this presumption, to survive a motion to dismiss based on the discretionary function exception a complaint "must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime. Id. at 324-25, 1274-75. In determining whether the discretionary function exception bars a suit against the government, the focus of the inquiry is on the nature of the action taken and on whether that action is subject to policy analysis. ALX El Dorado, Inc. v. Southwest Sav. Loan Ass'n/FSLIC, 36 F.3d 409, 411-12 (5th Cir. 1994).
The United States is under no statutory duty to establish an aid to navigation at a particular place. In Tringali Bros. v. United States, 630 F.2d 1089, 1090 (5th Cir. Unit A 1980), the court held that the Coast Guard has no statutory duty to place navigational aids in hazardous but is authorized to do so The Coast Guard has the specific authority to mark obstructions to navigation pursuant to 14 U.S.C. § 86 although it is not required to do so.
1. Nature of the Decision
The decision to place the markers in the Atchafalaya Bay Channel was clearly an exercise of the Coast Guard's discretion in its attempt to assist mariners to navigate safely in the area. Consequently, as the act of selecting where a specific marker would be placed involves an element of judgment or choice, that act, standing alone, satisfies the first prong of the discretionary function exception standard. Additionally, Chart 11351, Point Au Fer to Marsh Island published by the Government, states:
As a result of Hurricane Andrew, extensive debris is submerged in unknown locations. Wrecks and submerged obstructions may have been displaced from charted locations, and pipelines may have become uncovered or moved due to the force of storm surge. Aids to navigation might not be reliable. Mariners are urged to exercise extreme caution and are requested to report aids to navigation discrepancies and hazards to the nearest Coast Guard unit.
Government Exhibit 1. In a Local Notice to Mariners, attached to the subject motion as Exhibit 2, also states specifically in relation to the Atchafalaya Bay Channel:
Until approximately October 1, 1997, the dredge GEORGE D. WILLIAMS will be working in the Atchafalaya Bay Channel. The dredge will work 24 hours a day, 7 days a week, discharging on the ease side approximately 4 miles from the channel in East Pass using a combination of floating and submerged pipelines. Contact the dredge on VHF-FM channels 13 or 16 for sailing instructions, mariners are urged to exercise extreme caution when transiting this area.
Government Exhibit 2. The fact that the Government chose to warn mariners of dredging and obstructions through charts rather than markers is also clearly a discretionary function.
2. Policy Analysis
Having decided that the acts of the Coast Guard are discretionary acts, the next inquiry is based on considerations of public policy. It should be noted at this juncture that plaintiff has provided the Court with virtually no argument or authority to counter the Government's position. To that extent, the Court could consider the motion unopposed. Nonetheless, the Court will undertake the analysis.
In Baldassaro v. United States of America, 64 F.3d 206 (5th 1995), the appellate court stated:
The Supreme Court's seminal decision in United States v. Gaubert instructs that when established government policy allows a government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when he exercises that discretion. As the Supreme Court noted, the appropriate inquiry is whether the act in question is "susceptible to policy analysis."Id. at 211. In determining when and whether to mark a channel or to give a warning in a chart, the Coast Guard considers, among other things, the location of the object in relation to the navigable channel, the history of vessel accidents, the cost and feasibility of the potential warnings or signs, the topography of the area, maritime custom. These factors are in the nature of public policy considerations which require weighing a variety of interests to decide a course of action. It is clear that the Government's decision whether to place a warning sign or marker in a specific place as a result of the dredging was a discretionary decision which required judgment or choice and one that was grounded in public policy considerations. Wiggins v. United States, 799 F.2d 962, 966-67 (5th Cir. 1986) (Corps' decision not to remove submerged unmarked piling was within discretionary function exception); Drake Towing Co. v. United States, 765 F.2d 1060, 1064 (11th Cir. 1985) ("[t]he initial decision t place aids to navigation such as the temporary buoys in this case is within the Coast Guard's discretion"). check citations.
The Government's decision as to how it warned of the dredging and how it placed its markers is rooted in the same policy considerations that underlie the statutes and regulations authorizing the Coast Guard to use its discretion in determining how to warn mariners of navigational hazards. As such, the claim against the United States must fail. Accordingly,
IT IS ORDERED that the United States' Motion to Dismiss and/or Summary Judgment (Doc. 25) is GRANTED.
The Court will now turn to the second motion.
T.L. James' Motion for Summary Judgment (Doc. 20)
T.L. James moves this Court for summary judgment on the basis that plaintiff has failed to adduce any evidence that T.L. James negligently dredged the navigable channel. Furthermore, T.L. James produced evidence that Captain Hinton was operating the M/V MISS PEARL outside of the navigable channel and within 15 feet of Light 51. The Court agrees with its contentions and will grant the motion for the following reasons.
The following facts are uncontested:
1.) TL James completed the dredging project the subject channel pursuant to the Government's specifications.
2.) At the time of the grounding, the MN MISS PEARL was within 15 feet of Light 51.
3.) Channel Marker 51 is a fixed aid to navigation and was in its proper location at the time the grounding occurred.
4.) Chart 113571, Point au Fer to Marsh Island shows, generally, the location of the Atchafalaya Bay Channel and the channel markers and specifically instructs mariners to consult the Light List for supplemental information to aids to navigation.
5.) The 1997 updated edition of the Light List published in June, 1997, specifically states that Channel Marker 51 is "125 feet outside the channel limit."
6.) Prior editions of the Light List, as far back as 1993, also notified mariners that Channel Marker 51 is 125 feet outside the channel.
7.) Captain Hinton, the pnot of the M/V MISS PEARL admitted that vessel was within 15 feet of Marker 51 when the grounding occurred.
The scope of TL James' contract was to dredge the Atchafalaya Bay Channel. The basis of liability alleged against TL James is that it did so in a negligent fashion causing plaintiff's injuries. The grounding of the MN MISS PEARL took place 110 feet from the Channel, not even close to the area where TL James had dredged. By Captain Hinton's own admission, the M/V MISS PEARL was traveling within 15 feet of Light 51 at high speed in order to pass a boat. Not only did Captain Hinton operate his vessel in violation of the Notice to Mariners, he did so significantly outside the published limits of the navigation channel. There is no substantial fact produced or adduced by
Counsel for plaintiff stated unequivocally at a pretrial conference that there was no claim for any action with respect to the spoil area from the dredging.
plaintiff which demonstrates that TL James negligently caused the sandbar 110 feet away from the channel. Because there are no genuine issues of material fact and no evidence that TL James caused the accident, this motion must be granted. Accordingly,
IT IS ORDERED that the T.L. James' Motion for Summary Judgment (Doc. 20) is GRANTED.