One of the nice, if infrequently encountered, reminders of how good we Americans have it is our government’s waiver of immunity from civil liability. That waiver isn’t without its exceptions, to be sure, but its applicability beats the heck out of what you’ll find in many other countries, especially in legal matters of the sea (see April 1999 Legal Lookout article “Taking Uncle Sam to Task: Suing the Government for Maritime Claims”).
The U.S. Coast Guard (“USCG”) sticks its neck out as far as any other federal government agency when it comes to liability for maritime casualty claims. The Coasties are charged with enforcing a vastly complex array of regs and statutes. They’re out on every conceivable waterway looking for safety violations that could cause imminent disaster. USCG’s resources are limited, and its broad functions have been extended to play a greater role in homeland security. Leaving it subject to unlimited civil liability for the bad results of any safety situation it encounters just wouldn’t be feasible.
So where do we draw the line? The Suits in Admiralty Act, 46 USC §20901, et seq (“SAA”), which governs Uncle Sam’s liability in maritime claims, carves out an exception to the government’s waiver of immunity for discretionary government acts that give rise to private claims. Known as the “Discretionary Function Exception,” the carve out basically maintains a governmental liability shield, or “sovereign immunity,” for acts which regs, statutes and other law don’t specifically dictate the agency must perform. Courts apply a two-part test when a government agency asserts a Discretionary Function Exception in response to a private entity’s claim. The first prong asks whether the act or omission a plaintiff alleges was wrongful arose out of the agency’s failure to abide by a regulatory or statutory directive; the second prong basically asks whether the alleged wrongful act was of the sort the exception was designed to shield.
The U.S. District Court for the Northern District of Ohio recently had occasion to apply these concepts in the wake of a tragic collision between two recreational vessels in Sandusky Bay. A USCG patrol boat’s petty officers observed a yacht operating at night without a 225-degree forward-facing white masthead light, or a 135-degree rear-facing white stern light, in violation of certain Inland Navigation Rules (the “Rules”). The vessel’s captain advised the Coasties that he had a 360-degree lamp he could display long enough to get to a dock only 2.25 miles away. That kind of jerry-rigged illumination might be preferable to no lighting at all, but it still doesn’t comply with the applicable Rule. The officer in charge okayed the single lamp for the short ride, and the vessel collided with a much smaller boat, killing a passenger and injuring several others.
The claimants named USCG in an SAA claim, alleging the officer’s permitting a vessel to proceed with illegal lighting contributed to the accident. In response to the government’s Discretionary Function Exception defense, they pointed to the Rules’ mandatory nature, and USCG’s statutory obligation to enforce them. The court disagreed, and dismissed USCG from the action.
It’s not that the Rules are mandatory that matters. Rather, the level of discretion the law grants enforcement authorities in applying them controls the issue. True, the absence of compliant lighting may have played a role in the accident as an “unsafe condition” USCG allowed to continue in violation of Rules designed to avoid just this kind of mishap. However, 46 USC §4308, which empowers USCG to take action, provides that if “in the judgment of the official, the operation creates an especially hazardous condition, the official may [emphasis added]” step in by shutting down the offending vessel. This, the court ruled, demonstrated Congressional intention that USCG officers be given discretion to determine whether a Rules violation merits enforcement action and, if so, what kind of responsive action – if any – to take.
But what about the more nebulous concept of whether USCG’s actions were within the realm of the Discretionary Function Exception’s design? The court explained that this test prong is largely a public policy consideration. USCG argued, and the court bought, the fact that the Coasties’ job is only “to oversee and inspect for compliance.” And “[i]n doing so, a Boarding Officer must balance considerations of safety and economics given the Coast Guard’s limited resources and widely varied responsibilities.” There’s a limit to what we can and should expect from an agency bearing the responsibilities that USCG does. That’s just good, pragmatic public policy of the variety the Discretionary Function Exception is designed for. The plaintiffs will have to look to the allegedly offending vessel’s owner to recover.
Ref: In re Steinle, Jr., et al., 2011 WL 6153122 (N.D. Ohio 2011)
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