IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30982
Summary Calendar
_____________________
MICHAEL TODD THERIOT; MELISSA D. THERIOT;
JEFFREY L. DAVIS; KELLY F. DAVIS,
Plaintiffs-Appellees,
Cross-Appellants,
versus
UNITED STATES OF AMERICA, ET AL.,
Defendants,
HERBERT M. HAMILTON, JR.,
Defendant-Appellant,
Cross-Appellee,
STATE FARM FIRE AND CASUALTY COMPANY,
Defendant-Cross-Claimant,
Appellant-Cross-Appellee,
versus
UNITED STATES OF AMERICA, on behalf of
United States Army Corps of Engineers,
Defendant-Cross Defendant-
Appellee.
____________________
DAVID M. ESTES; HERBERT M. HAMILTON, JR.,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA, on behalf of
United States Army Corps Engineers,
Defendant-Appellee.
_______________________________________________________
Appeals from the United States District Court
for
the Western District of Louisiana
_______________________________________________________
December 1, 1998
Before REAVLEY, BENAVIDES and PARKER, Circuit
Judges.
PER CURIAM:
This consolidated admiralty case arises from
the allision of a recreational fishing craft and an underwater sill or
weir constructed by the United States Army Corps of Engineers, which occurred
on October 8, 1994. Passengers Michael Theriot, Jeffrey Davis and their
spouses brought negligence claims under the Suits in Admiralty Act against
the United States, Herbert Hamilton, Jr., the operator of the vessel, and
State Farm Fire and Casualty Company ("State Farm"), Hamilton's liability
insurer. David M. Estes, the vessel owner, and Hamilton sought recovery
for their injuries from the United States.(1)
State Farm filed a cross-claim against the United States to recover sums
paid to David Estes for the total loss of his Boston Whaler.
After a bench trial, the district court entered
judgment in favor of the United States holding that, although the United
States was negligent in failing to place a warning sign at the location
of the underwater sill, it was immune from liability because its decision
not to physically mark the location was within the discretionary function
exception to the Suits in Admiralty Act. The district court also entered
judgment against defendants Hamilton and State Farm finding that Hamilton
had negligently operated the boat. On appeal, Hamilton and State Farm claim
that the district court applied an incorrect standard of care in finding
that Hamilton was negligent. Appellants also assert that the district court
erred in concluding that the government was immune from liability because
the government's actions were not within the discretionary function exception.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The allision occurred on October 8, 1994,
while David Estes, Herbie Hamilton, Jr., Michael Theriot and Jeffrey Davis
were fishing in Estes's 24' Boston Whaler in the second cut north of Port
Eads Marina at approximately mile 10.1 Below Head of Passes on the West
Bank of the South Pass of the Mississippi River. Located approximately
75 feet inside the mouth of the cut is a water control structure or sill,
which was built by the Army Corps of Engineers ("Corps") in 1959. When
originally constructed, the sill was tied into the banks of the outlet
by earthen levees that were visible above the water. The middle portion
of the structure, the sill itself, has always been submerged at all but
the lowest water levels. Since approximately 1976, due to the erosion of
the earthen levees, the sill has been entirely submerged, but continues
to perform its function of preventing silt build-up by increasing the water
velocity in the South Pass channel. On the day of the accident, the usual
noticeable rolling or break in the water indicating the sill's position
was not present. The location of the sill is charted on the authorized
navigational chart for the area published by the National Oceanic and Atmospheric
Administration ("NOAA chart 11361"), but there has never been a warning
sign or physical marker at the site. The existence of sills in that area
is also noted in two of the Coast Guard's Notice to Mariners issued in
1994, which were available to the public.
After Estes successfully piloted the boat
through the cut, plaintiffs drifted the cut twice in search of redfish
then decided to fish somewhere else. Hamilton then took the helm and instead
of exiting through the same area of the cut as Estes had entered, he steered
the vessel closer to the northern bank. Preparing to enter the Gulf of
Mexico, Hamilton accelerated to approximately 15 miles per hour when he
struck the submerged sill. The vessel came to an abrupt stop throwing Theriot
and Estes out of the boat and causing Hamilton and Davis to strike objects
within the boat, each sustaining various injuries. Estes was able to stand
on the submerged sill and the water came up to about his knees. No one
in the group had ever operated a boat in the South Pass, nor was anyone
familiar with the area. No one had consulted an authorized navigational
chart of the area prior to or during their trip. The two charts the group
did consult, a chart of the Gulf of Mexico and a more particular chart
of the South Pass, did not depict the hazards or depths of this area of
the South Pass.
The Corps and the Coast Guard have an internal
Memorandum of Agreement ("MOA") concerning marking and removal of sunken
vessels and other obstructions to navigation. The district court found
that this agreement applies only to privately owned vessels or structures
and not to structures owned or constructed by the United States. According
to the district court, the MOA is not a mandatory rule or regulation that
prescribes a fixed course of conduct. The MOA lists specific factors that
are to be considered to determine if an obstruction is a hazard to navigation
and to determine the appropriate course of action to increase safety to
an acceptable level. Although the MOA does not apply specifically to government
owned structures, the same factors are considered in determining how to
notify the public of a government owned obstruction or hazard to navigation,
and whether or not a physical marker or warning sign is appropriate.
Prior to this incident, several accidents
involving the area of the sill in question had been reported to the Corps.
After one such incident, the Coast Guard made a preliminary recommendation
to place signs in the South Pass channel. After further investigation and
coordination with the Coast Guard, the Corps decided that charting the
location of the sill on NOAA chart 11361 and warning seafarers of the danger
through the Notice to Mariners was sufficient.
After a bench trial, the district court found
the actions of both the United States and Hamilton to be negligent, apportioning
80% of the fault to the United States and 20% to Hamilton. Specifically,
the district court found that the United States was negligent in failing
to place a warning sign at the location of the underwater sill, but that
the United States was immune from liability because the decision to warn
mariners by navigational charts and notices to mariners rather than by
physically marking the site was within the discretionary function exception
to the Suits in Admiralty Act. The district court also found that Hamilton
negligently operated the boat because despite his admitted unfamiliarity
with the area, he failed to consult the authorized navigational charts
to determine the depths and hazards of the surrounding waters and operated
the vessel at an unsafe speed under the circumstances. As a result of the
government's immunity, the district court found Hamilton and his insurer
State Farm 100% liable in solido for the allowed damages. The stipulated
damages of Estes and Hamilton were disallowed as they had sued only the
United States.
II. DISCUSSION
A. Standard of Review
In an admiralty action tried by the court
without a jury, the factual findings of the district court are binding
unless clearly erroneous. See Coumou v. United States, 107 F.3d
290, 295 (5th Cir.), modified, 114 F.3d 64 (1997). Questions of
law are reviewed de novo. See id. We review findings of mixed law
and fact by assessing the trial court's underlying factual findings and
factual inferences deduced therefrom under the clearly erroneous standard
and by evaluating any legal conclusion based on this factual data as an
issue of law. See Michel v. Total Transp., Inc., 957 F.2d 186, 189
(5th Cir. 1992). Contract interpretation is a question of law, subject
to de novo review. See Dow Chem. Co. v. M/V Roberta Tabor, 815 F.2d
1037, 1042 (5th Cir. 1987). "The district court's rulings on negligence,
cause, and proximate cause are findings of fact, while its determination
of the existence of a legal duty is a question of law." Coumou,
107 F.3d at 295 (internal quotation marks omitted). However, if the district
court's finding of negligence was based on an incorrect legal principle,
the clearly erroneous test does not apply and we will disregard such findings.
See Dow Chem. Co., 815 F.2d at 1042.
"A finding is 'clearly erroneous' when although
there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed."
United States v. United States Gypsum Co., 333 U.S. 364, 395, 68
S. Ct. 525, 542, 92 L. Ed. 746 (1948); see Johnson v. Gambrinus Co./Spoetzl
Brewery, 116 F.3d 1052, 1056 (5th Cir. 1997). "When, as here, the district
court is faced with testimony that may lead to more than one conclusion,
its factual determinations will stand so long as they are plausible--even
if we would have weighed the evidence otherwise." Schlesinger v. Herzog,
2 F.3d 135, 139 (5th Cir. 1993) (internal quotation marks omitted). "Where
the court's finding is based on its decision to credit the testimony of
one witness over that of another, 'that finding, if not internally inconsistent,
can virtually never be clear error.'" Id. (quoting Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 575, 105 S. Ct. 1504, 1512,
84 L. Ed. 2d 518 (1985)).
B. Discretionary Function Exception
Appellants challenge the district court's
conclusion that the United States negligent conduct fell within the discretionary
function exception to the Suits in Admiralty Act on two principal grounds.
First, appellants argue that the United States negligently failed to maintain
the sill in its original condition--so that the earthen levees tying the
structure into the bank are visible above the water--and that this conduct
is not a discretionary function. Second, appellants argue that the government's
failure to mark the sill's location with a warning sign was not within
the discretionary function exception because, contrary to the district
court's finding, the government acted in violation of the MOA, which constitutes
a non-discretionary, mandatory rule or regulation. We address each argument
in turn.
1. Failure to Maintain the Sill in its
Original Condition
We must point out that the district court's
finding of negligence on the part of the United States was not based on
its failure to maintain the sill in its original condition. Rather, the
district court's negligence finding was based on the failure to place a
physical marker or warning sign near the underwater sill. The district
court expressly rejected appellants' negligence theory based on failure
to maintain the sill in its original condition so that the edges remained
above the waterline. The district court found that the sill's design was
purely functional and was not intended to warn boaters of the sill's existence.
Further, the district court found that the sill continued to perform its
function in its current completely submerged condition. Because we conclude
that the district court's negligence finding based on the failure to place
a warning sign at the sill's location was not clearly erroneous, appellants'
argument that the failure to maintain the sill was not within the discretionary
function exception is irrelevant.
Throughout the proceeding appellants asserted
that the United States was negligent for failing to maintain the sill in
its original condition. Indeed, the district court found that as originally
designed the sill extended across the entire width of the cut and the edges
of the structure extended approximately four to five feet above the waterline,
but that the sill had been completely submerged at all but the lowest water
levels since approximately 1976. This is supported by the testimony of
Emile Shilling, the operations project manager for the Corps with authority
over this area of the Mississippi River. Shilling also testified that despite
the erosion of the levees and the fact that the sill no longer extends
across the entire cut, the structure still serves its purpose to reduce
silt build-up in the South Pass, thereby reducing the need for maintenance
dredging. Based on this evidence, the district court rejected the argument
that the United States was negligent for failing to maintain the sill in
its original condition as the sill's design was never intended to serve
as a warning for boaters.
On this record, we are not "left with the
definite and firm conviction that a mistake has been committed." United
States Gypsum Co., 333 U.S. at 395, 68 S. Ct. at 542. Moreover, the
cases cited by appellants to support their failure to maintain argument
are inapposite. These cases concern the government's failure to maintain
various navigational aids, such as buoys and lighthouses. The government's
decision to provide the service, i.e., to place a buoy or erect
a lighthouse, was held to be a discretionary decision, but the government's
failure to maintain the structure was not within the discretionary function
exception. See, e.g., Indian Towing Co. v. United States,
350 U.S. 61, 69-70, 76 S. Ct. 122, 126-27, 100 L. Ed. 48 (1955) (holding
that decision to operate lighthouse is discretionary decision, while failure
to maintain lighthouse is not within discretionary function exception);
Denham v. United States, 834 F.2d 518, 520-21 (5th Cir. 1987) (holding
that decision to establish recreational swimming area was discretionary,
but failure to replace buoy secured by an anchor that injured a swimmer
was not within discretionary function exception); Sheridan Transp. Co.
v. United States, 834 F.2d 467, 473 (5th Cir. 1987) (recognizing that
initial decision to place buoy 60' from wreck was a protected discretionary
function, but moving the buoy another 250' away from the wreck without
notifying the public was a negligent act not within the discretionary function
exception), appeal after remand, 897 F.2d 795 (5th Cir. 1990); Drake
Towing Co. v. United States, 765 F.2d 1060, 1064 (11th Cir. 1985) (stating
that "the initial decision to place aids to navigation such as the temporary
buoys in this case is within the Coast Guard's discretion"). The crucial
distinction in the present case is that the sill was not constructed to
be an aid to navigation. As the district court found, its design was not
intended to warn boaters. It was not necessary for the sill to remain above
water to serve its purpose of increasing the flow in the channel to reduce
the need for maintenance dredging. Had the United States made a decision
to physically mark the location of the sill, and then negligently executed
that decision causing appellants' injuries, then these authorities would
be relevant. However, those are not the facts here.
2. Failure to Place a Marker or Warning
Sign Near the Location of the Sill
We also reject any claim that the United States
failure to place a warning sign near the vicinity of the sill was not within
the discretionary function exception. Whether the government's conduct
falls within the discretionary function exception is a question of law,
which we review de novo, applying the undisputed facts of the case. See
Buchanan v. United States, 915 F.2d 969, 970 (5th Cir. 1990); Aragon
v. United States, 146 F.3d 819, 823 (10th Cir. 1998).
The Suits in Admiralty Act ("SAA"), 46 U.S.C.A.
§§ 741-752 (1975), serves as a waiver of sovereign immunity and
authorizes suits against the government in admiralty cases where such claims
could be brought against a private party. But, the SAA does not waive immunity
for discretionary acts of government agencies that fall within the discretionary
function exception set forth in the Federal Tort Claims Act. See
28 U.S.C.A. § 2680(a) (1994); Baldassaro v. United States,
64 F.3d 206, 208 (5th Cir. 1995) (holding that discretionary function exceptions
applies to the SAA), cert. denied, 517 U.S. 1207, 116 S. Ct. 1823,
134 L. Ed. 2d 48 (1996); Wiggins v. United States, 799 F.2d 962,
966 (5th Cir. 1986). Under this exception, the government is not liable
for "[a]ny claim 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).
The Supreme Court has articulated a two part
test to determine whether the challenged conduct falls within the discretionary
function exception. First, the conduct must be discretionary in nature,
that is it must "involv[e] an element of judgment or choice." United
States v. Gaubert, 499 U.S. 315, 322, 111 S. Ct. 1267, 1273, 113 L.
Ed. 2d 335 (1991) (citations omitted). "This requirement of judgment or
choice is not satisfied if a 'federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow,' because 'the
employee has no rightful option but to adhere to the directive.'" Id.
(quoting
Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct.
1954, 1958-59, 100 L. Ed. 2d 531 (1988)). Second, the judgment or decision
must be grounded on considerations of social, economic, or political public
policy. Id. at 323-24, 111 S. Ct. at 1273-74.
a. Discretionary Conduct
The United States is under no statutory duty
to establish an aid to navigation at a particular place. See Tringali
Bros. v. United States, 630 F.2d 1089, 1090 (5th Cir. Unit A 1980)
(holding that the Coast Guard has no statutory duty to place navigational
aids in hazardous waterways but is authorized to do so). Although, the
Coast Guard has the specific authority to mark obstructions to navigation
pursuant to 14 U.S.C. § 86, it is not required to do so. See
14 U.S.C.A. § 86 (West 1990). Appellants argue that section 5(b)(4)
of the Memorandum of Agreement ("MOA") mandates the placement of a marker
at the location of the sill at issue here and that failure to do so is
not protected by the discretionary function exception. The district court
found that the MOA did not apply to objects owned or constructed by the
United States, and even so, it did not constitute a mandatory rule requiring
on-site marking of the sill. We agree with the conclusion of the district
court.
According to its terms, the MOA "provides
procedures on coordination to determine whether an obstruction is a hazard
to navigation and procedures to determine the appropriate corrective actions
to be taken by" the Corps and the Coast Guard. An obstruction is defined
as
"[a]nything that restricts, endangers, or
interferes with navigation." A hazard to navigation is defined as "[a]n
obstruction, usually sunken, that presents sufficient danger to navigation
so as to require expeditious, affirmative action such as marking, removal,
or redefinition of a designated waterway to provide for navigational safety."
When the Corps or Coast Guard receives a report of a sunken vessel or other
obstruction, section 5 lists the required actions, including: (a) assessing
the obstruction's impact upon navigation; (b) deciding "if an obstruction
is a hazard to navigation [and] agree[ing] upon appropriate corrective
action(s) to reduce the danger to navigation to an acceptable level;" and
(c) disseminating navigational safety information pertaining to obstructions.
Section 7 of the MOA, entitled "Decision-making
Guidance" sets forth the corrective action options and the factors relevant
to deciding whether an obstruction is a hazard to navigation and if so,
the appropriate course of action. The alternative corrective actions include:
(1) "No action;" (2) "Charting;" (3) "Broadcasting and publication of navigational
safety information;" (4) "Marking;" (5) "Redefinition of navigational area;"
(6) "Removal;" and (7) "Combination of the above." Section 7(b) lists several
non-exclusive factors relevant to deciding if an obstruction is a hazard
to navigation and if so, the appropriate action that should be taken. These
factors include:
(1) The degree to which the obstruction restricts,
endangers, or interferes with the navigability of a body of water.
(a) Location with respect to navigational
traffic patterns.
(b) Navigational difficulty at the site of
the obstruction.
(c) Clearance or depth of water over obstruction.
(d) Fluctuation of water level and other hydraulic
characteristics.
(2) Physical characteristics of the obstruction,
including cargo (if any exists).
(3) Possible movement of the obstruction.
(4) Marine activity in the vicinity of the
obstruction.
(a) Type of commercial and recreational vessel
traffic.
(b) Density of commercial and recreational
vessel traffic.
(c) Trends of waterway use.
(5) Location of obstruction with respect to
existing aids to navigation.
(6) Prevailing and historical weather conditions.
(7) Length of time the obstruction has been
in existence.
(8) History of vessel accidents involving
the obstruction.
The thrust of appellants' claim of error is
that section 5(b)(4), which requires an owner to immediately mark a hazard
to navigation, applies to the United States and is a mandatory rule or
policy that prescribes a fixed course of conduct, requiring no element
of judgment or choice. Thus, the failure to adhere to this provision is
not protected by the discretionary function exception. See Berkovitz,
486 U.S. at 536, 108 S. Ct. at 1958. Section 5(b)(4) provides:
Marking Issues. In every case where
an obstruction is declared to be a hazard to navigation, the location will
be marked immediately by the owner. In the event that the owner cannot
be identified, refuses to mark the obstruction, inadequately marks the
obstruction, or is otherwise unable to properly mark it, the Coast Guard
has authority under 14 U.S.C. [§] 86 to take appropriate action.
Appellants focus on the phrase "in every case"
and the absence of any express language that the MOA does not apply to
government owned structures to support their assertion that this is a mandatory
non-discretionary requirement applicable to the United States. On the other
hand, we note that the MOA also does not expressly state that it does apply
to government owned structures. Shilling testified that the MOA only applied
to privately owned structures, but that the Corps and the Coast Guard considered
the same factors listed in the MOA to determine the appropriate course
of action with respect to government owned obstructions or hazards to navigation.
Appellants presented no contradictory evidence to support their position
other than the agreement itself.
We agree with the interpretation adopted by
the district court and supported by Shilling's testimony that the MOA and
specifically section 5(b)(4) applies only to privately owned structures.
This interpretation is consistent with an overall reading of the document.
Numerous references to the "owner" of an obstruction or sunken vessel are
made throughout the agreement. In each case, the logical reading is that
the referenced owner is a private third party other than the Corps, the
Coast Guard, or any other government agency. For example, section 5(b)(4)
refers to the Coast Guard's authority under 14 U.S.C. § 86 to mark
the obstruction if the owner cannot be identified or fails to adequately
mark the hazard. Section 86 not only gives the Coast Guard authority to
mark obstructions, but also makes the owner liable to the United States
for the costs of marking the hazard. See 14 U.S.C. § 86. When
both provisions are read in context, it does not make sense for the term
"owner" to also refer to the United States. The issues of identification
of the owner, refusal to mark, inability to mark, or inadequate marking
mentioned in section 5(b)(4) are only pertinent to private owners. Additionally,
Shilling's testimony that this provision is directed primarily at sunken
vessels or other privately owned obstructions that are not shown on the
authorized navigational charts supports the conclusion that this provision
applies only to private owners.
Moreover, even if the MOA is interpreted to
apply to government owned structures as well, notwithstanding section 5(b)(4),
marking the location of a hazard to navigation is not a mandatory corrective
action. As discussed above, section 7(a) lists the alternative options
once the Corps and Coast Guard decide that an object is a hazard to navigation.
Marking is only one of the options and is not mandated. Thus, we conclude
that MOA does not apply to government owned structures or hazards, nor
is physically marking the location of a hazard to navigation a mandatory
requirement. That being the case, the decision of whether or not to physically
mark the sill's location clearly involved an element of judgment or choice.
As Shilling testified, the Corps considers the same options and factors
outlined in the MOA to determine the appropriate course of action for notifying
the public of the existence of a hazard to navigation. Marking is only
one of the available options. Other options include charting, removal,
dissemination of navigational safety information, redefinition of the navigational
waterway, no action, or any combination. The Corps must clearly use its
judgment to choose among the available alternatives and determine the appropriate
course of action.
b. Public Policy Considerations
The next question is whether the government's
decision as to the appropriate action for notifying the public of the existence
of the sill was based on considerations of public policy. For essentially
the same reasons enunciated by the district court, we hold that the government's
decision was grounded in public policy considerations. The underlying facts
on this point are not disputed by appellants. As the district court stated:
In determining when and whether to mark a
public work such as the sill in question, the United States considers,
among other things: the degree of danger an object poses, the vessel traffic
type and density, the location of the object in relation to the navigable
channel, the history of vessel accidents, and the feasibility and economics,
including costs, of erecting and maintaining physical markers in light
of the available resources. . . . These are policy factors which require
weighing competing interests to decide a course of action. These guidelines,
leave room for and indeed require, the exercise of policy judgment based
upon the resources available and the relative risks to the public health
and safety from alternative actions.
Theriot v. United States, Nos. 96-1532,
96-1954, slip op. at 7 (W.D. La. Aug. 19, 1997). This finding is fully
supported by Shilling's testimony and is not disputed by appellants. Thus,
it is clear that the government's decision whether to place a warning sign
or marker at the sill's location was a discretionary decision that required
judgment or choice and one that was grounded in public policy considerations.
Accord Drake Towing Co. v. United States, 765 F.2d 1060,
1064 (11th Cir. 1985) (stating that "the initial decision to place aids
to navigation such as the temporary buoys in this case is within the Coast
Guard's discretion"); see also Indian Towing Co. v. United States,
350 U.S. 61, 69, 76 S. Ct. 122, 126-27 (1955) (holding that decision to
operate a lighthouse service as an aid to navigation is an exercise of
discretion); Wiggins v. United States, 799 F.2d 962, 966-67 (5th
Cir. 1986) (holding that Corps' decision not to remove submerged unmarked
piling was within discretionary function exception).
C. Negligence of Hamilton
The district court's finding that Hamilton
negligently operated the vessel is a finding of fact, which we will not
set aside unless clearly erroneous. See Coumou, 107 F.3d at 295.
The standard of care applied by the district court is a question of law,
which we review de novo. See id.; Weyerhaeuser Co. v. Atropos
Island, 777 F.2d 1344, 1347 (9th Cir. 1985). State Farm and Hamilton
(collectively "State Farm") assert that in finding Hamilton negligent,
the district court, relying on Gemp v. United States, 684 F.2d 404,
408 (6th Cir. 1982), applied an inappropriately high standard of care when
it concluded that "[p]leasure craft operators are charged as a matter of
law with knowledge of information shown on nautical charts." Theriot,
Nos. 96-1532, 96-1954, slip op. at 15. State Farm argues that Fifth Circuit
jurisprudence does not impute knowledge of nautical charts on recreational
mariners that are not required by law to equip their vessels with such
charts.(2) They assert that the appropriate
standard of care is that of a reasonably prudent person under the circumstances
and that finding Hamilton negligent based on his failure to consult the
NOAA chart is reversible error.
We agree that the appropriate standard of
care in an allision case is reasonable care under the circumstances. See
Nettles v. Ensco Marine Co., 980 F. Supp. 848, 853 (E.D. La. 1997)
(citing 2 Thomas J. Schoenbaum, Admiralty & Maritime Law § 14-2,
at 255 (2d ed. 1994));
see also Bunge Corp. v. M/V Furness Bridge,
558 F.2d 790, 795 (5th Cir. 1977) (stating that the moving vessel "must
exhaust every reasonable possibility which the circumstances admit and
show that in each they did all that reasonable care required"); Couch
v. Bowman, 263 F. Supp. 714, 716 (E.D. Tenn. 1966) (applying standard
of reasonable care to recreational boat operator). We conclude, however,
that notwithstanding the court's reference to the Gemp rule in its
conclusions of law, the district court applied the reasonable care standard
to reach its finding that Hamilton was negligent.
The district court's ultimate finding of negligence
on the part of Hamilton was premised in part on its initial finding that
"[a] reasonably prudent boater, unfamiliar with the area in which he was
navigating, would have consulted the applicable navigational chart of the
area." The wording of this finding is a strong indication that the standard
of care applied by the district court was reasonableness under the circumstances.
The district court focused on the fact that Hamilton was admittedly unfamiliar
with the particular area in which he was operating the boat. Additionally,
the district court's ultimate finding of negligence was based not only
on Hamilton's failure to consult the chart, but also upon his admitted
unfamiliarity with the hazards of the area, and his unsafe speed in light
of those circumstances. Specifically, the district court stated:
We also find that Herbert Hamilton was negligent
in the operation of the boat. Hamilton was at the helm of the craft at
the time of the accident. As such, he was charged with familiarizing himself
with the various depths and hazards of the surrounding waters. Hamilton
was admittedly unfamiliar with the area, and did not consult authorized
navigational charts. He proceeded at an excessive and unsafe speed in light
of his professed unfamiliarity with the area. Hamilton's actions and/or
inactions were a proximate cause of the accident.
Theriot, Nos. 96-1532, 96-1954, slip
op. at 10. Thus, the district court's finding of negligence rested upon
the reasonableness of Hamilton's conduct under the circumstances. Moreover,
this finding is not clearly erroneous based on the district court's underlying
factual findings.
The underlying facts pertaining to the district
court's finding of negligence are as follows. Hamilton was not familiar
with the area that he was operating the boat, although he had fished a
different cut in South Pass on one prior occasion. None of the other occupants
had operated a boat in this area, nor were they familiar with it. Neither
Hamilton nor any of the others had consulted NOAA chart 11361 or any other
navigational chart depicting the depths, obstructions, or hazards in South
Pass. The sill was marked on NOAA chart 11361 and had been charted since
1960. The usual noticeable rolling break in the water indicating the sill's
location was not present. The coast guard's Notice to Mariners warned of
the danger posed by the sill and was available to anyone upon request.
Hamilton did not consult the Notice to Mariners prior to operating the
boat. There was no physical marker or warning sign at the location of the
sill. Estes was looking in the water immediately before the accident and
could not see the sill below the surface, nor could anyone else. Hamilton
did not exit the cut at the same location that Estes had safely entered,
but instead exited closer to the northern bank of the cut. As Hamilton
prepared to enter the Gulf, he accelerated to approximately 15 miles per
hour, which was an unsafe speed under the circumstances.
The only fact susceptible to challenge is
the finding that Hamilton operated the vessel at an unsafe speed under
the circumstances. On this point, Davis, Theriot, and Estes all testified
that nothing in Hamilton's operation of the vessel caused them any concern
for their safety. Berg, the civil engineer for the Corps who conducts surveys
and investigates accidents in the South Pass area, testified that he safely
entered the cut in a vessel very similar to Estes' Boston Whaler by trimming
his engines up and letting the current take him through. Shilling testified
that a prudent mariner would familiarize himself with the area and in any
event, would be very careful going through an unfamiliar area. Hamilton
testified that he monitored the depth finder while at the helm and it was
fluctuating between ten and eleven feet, which normally would be sufficient
depth for this size boat. However, Hamilton also admitted that because
the depth finder was located on the rear of the boat, the front of the
boat would already have passed over the area before he would be able to
determine the depth. In light of Hamilton's admitted unfamiliarity with
the area or its hazards, his decision to exit the cut at different location
than they had safely entered, and the inability of the depth finder to
determine the depth at the front of the vessel, the district court's finding
that the Hamilton operated the vessel at an unsafe speed under the circumstances
was not clearly erroneous. Consequently, the ultimate finding that Hamilton
negligently operated the boat was not clearly erroneous. Moreover, this
finding is consistent with decisions in other circuits finding a boat operator
negligent when, along with other factors, he failed to familiarize himself
with the area by consulting charts, notices to mariners, or approved light
lists. See, e.g., Andrews v. United States, 801 F.2d 644,
649 (3rd Cir. 1986) (evidence that recreational boaters were "piloting
their boats in wholly unfamiliar waters without the benefit of personal
experience, navigational charts, or even the ability to recognize the standard
maritime road symbols" supported finding of negligence); Albinder v.
United States, 685 F. Supp. 45, 46 (S.D.N.Y. 1987) (holding that hired
boat pilot who was unfamiliar with the area "was negligent in not having
available up-to-date navigational guides made available to the public by
the U.S. Government and in selecting a route which departed from the plainly
indicated channels and resulted in the accident").
Our conclusion is not affected by the fact
that federal regulations do not require a vessel of this size to be equipped
with NOAA chart 11361. See 33 C.F.R. §§ 164.01, 164.33.
A finding of negligence need not be premised on the violation of a specific
statute or regulation. See 2 Schoenbaum, § 14-2, at 255 ("Liability
for collision may be imposed even in the absence of a statutory violation,
if there is negligence."). As stated above, the test is reasonable care
under the circumstances. Thus, the fact that Hamilton was not required
by statute or regulation to consult the chart does not undermine the district
court's finding that Hamilton was negligent under the prevailing conditions
at the time of the accident.
III. CONCLUSION
In sum, the decision of the United States
to rely on charting the sill and notifying the public through the Notices
to Mariners rather than by physically marking the location of the sill
at the site was within the discretionary function exception to the SAA.
Thus, the United States was immune from liability and the district court
was without jurisdiction and properly dismissed the claims against the
United States. As to the finding that Hamilton was negligent, the district
court applied the appropriate standard of care, that of a reasonable person
under the circumstances. The district court's finding of negligence was
not clearly erroneous as it is supported by the court's underlying factual
findings and is consistent with the evidence as a whole.
AFFIRMED.
1. The State of Louisiana
was also a named defendant in both cases, but all plaintiffs voluntarily
dismissed their claims against the state prior to trial.
2. As appellants point
out, federal regulations require certain vessels to carry Marine Charts
of the area published by the National Ocean Service, but these regulations
do not apply to vessels under 1600 gross tons. See Navigation Safety
Regulations, 33 C.F.R. §§ 164.01, .33 (1998). The parties stipulated
that the Boston Whaler weighs less than 1600 gross tons. |