McMellon v. United States

Rehearing en banc granted by
order filed 10/8/03; opinion
filed 8/1/03 is vacated
 Filed: August 18, 2003

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 02-1494
(CA-00-582-3)

Carrie A. McMellon, et al.,

Plaintiffs - Appellants,

versus

United States of America, et al.,

Defendants - Appellees.

O R D E R

The court amends its opinion filed August 1, 2003, as follows:

On page 42, line 2 of section III -- the word “it” is

corrected to read “its.”

For the Court - By Direction

/s/ Patricia S. Connor
Clerk
 PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
4444444444444444444444444444444444444444444444447
CARRIE A. MCMELLON; LORI DAWN
WHITE; KATHY D. TEMPLETON; CHERI
CALL,
Plaintiffs-Appellants, No. 02-1494

v.

UNITED STATES OF AMERICA; UNITED
STATES ARMY CORPS OF ENGINEERS,
Defendants-Appellees.
4444444444444444444444444444444444444444444444448

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CA-00-582-3)

Argued: December 5, 2002

Decided: August 1, 2003

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

____________________________________________________________

Reversed and remanded by published opinion. Judge Traxler wrote
the majority opinion, in which Judge Williams joined. Judge Nie-
meyer wrote a dissenting opinion.

____________________________________________________________
COUNSEL

ARGUED: Jay Douglas Patton, SCHROEDER, MAUNDRELL,
BARBIERE & POWERS, Cincinnati, Ohio, for Appellants. Stephen
Robert Campbell, Trial Attorney, Torts Branch, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. ON BRIEF: Todd M. Powers, SCHROEDER,
MAUNDRELL, BARBIERE & POWERS, Cincinnati, Ohio, for
Appellants. Robert D. McCallum, Jr., Assistant Attorney General,
Kasey Warner, United States Attorney, Michael L. Keller, Assistant
United States Attorney, Torts Branch, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees.

____________________________________________________________

OPINION

TRAXLER, Circuit Judge:

Carrie A. McMellon, Lori Dawn White, Kathy D. Templeton, and
Cheri Call (collectively, the "plaintiffs") filed an action against the
United States under the Suits in Admiralty Act, 46 U.S.C.A. App.
§§ 741-52 (West Supp. 2002), seeking recovery for injuries they suf-
fered when they rode jet skis over the gates of the Robert C. Byrd
Locks and Dam, a facility owned by the United States government
and operated by the Army Corps of Engineers. The district court
granted summary judgment in favor of the government, concluding
that the government had no duty to provide any warnings about the
dam. The plaintiffs appeal, and we reverse and remand for further
proceedings.

I.

In August 1999, the plaintiffs were staying at a campground on the
Ohio River near the Ohio-West Virginia border. Late one afternoon,
they took two jet skis for a ride, with two of the plaintiffs riding on
each of the jet skis. The plaintiffs rode upstream for a short period and
then turned around and headed downstream. The plaintiffs
approached what they all believed to be a bridge; when it was too late,
the plaintiffs realized they were going over the gates of a dam. They
dropped approximately twenty-five feet, hitting the water below and
suffering significant injuries. The plaintiffs stated in their depositions
that they did not see any warning signs as they approached the dam
and that they could not tell until they were perhaps five feet away
from the dam that there was a change in the water levels.

2
 At the time of the accident, there were several warning signs on the
upstream side of the dam. The plaintiffs' evidence, however, indi-
cated that the signs were difficult to see from the river. The plaintiffs
submitted affidavits from several people who regularly camp and boat
in the area around the dam. The affiants stated that a warning sign on
the right descending bank cannot be seen from the river because it is
obscured by trees and other vegetation and that a sign located in the
river on a concrete piling is not readable from a distance and is not
readable from the center or right side of the river.

Until 1995, there had been buoys in place marking the entrance of
the restricted area around the dam. The buoys were removed when
extensive repairs were made to the dam and locks, but they were not
replaced after the construction work was completed. In the summer
of 2000, after the plaintiffs' accident, the Corps of Engineers placed
two new warning buoys on the upstream side of the dam.

The plaintiffs' theory of the case was that the government had a
duty to warn those on the river of the presence of the dam and that
the signs in place were inadequate to carry out that duty. The govern-
ment moved to dismiss the case, arguing that the district court lacked
subject matter jurisdiction because the government's actions with
regard to the dam fell within an implied "discretionary function"
exception to the Suits in Admiralty Act's waiver of sovereign immu-
nity. In the alternative, the government moved for summary judg-
ment, arguing that it had no duty to warn about the dam, that the
warnings it did provide were adequate, and that the plaintiffs' negli-
gence was the sole cause of the accident.

The district court rejected the government's discretionary function
argument and denied the government's motion to dismiss. However,
the court granted summary judgment in favor of the government, con-
cluding that the government had no duty to warn of the dam. The
plaintiffs appeal.

II.

The discretionary function issue involves jurisdictional questions
of the government's waiver of sovereign immunity. Accordingly, we
address that issue first.

3
 The Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. §§ 2671-2680
(West 1994 & Supp. 2002), waives sovereign immunity for most tort
claims asserted against the government. The FTCA includes a "dis-
cretionary function" exception, which specifically provides that the
Act's waiver of sovereign immunity does not apply to claims "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.A. § 2680(a). The plaintiffs' claims against the
government, however, do not fall within the FTCA, but instead are
brought pursuant to the Suits in Admiralty Act (the "SIAA"), through
which the government has consented to being sued in admiralty1 and
under which the government is exposed to liability to the same extent
as a private person. See 46 U.S.C.A. App. § 742 ("In cases where if
. . . a private person or property were involved, a proceeding in admi-
ralty could be maintained, any appropriate nonjury proceeding in per-
sonam may be brought against the United States. . . ."); Lane v.
United States, 529 F.2d 175, 179 (4th Cir. 1975) (explaining that
under the SIAA, "the United States is to be held accountable in admi-
ralty whenever a private person, in similar circumstances, would be").
Unlike the FTCA, the SIAA does not include a discretionary function
exception to the waiver of sovereign immunity. The government
nonetheless contends that such an exception must be read into the
SIAA.
____________________________________________________________
1
Although an accident involving only jet skis would not seem to be the
typical admiralty case, this case falls within the admiralty jurisdiction of
the federal courts because the accident occurred on navigable waters and
bears a sufficient connection to traditional maritime activities. See, e.g.,
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 206 (1996) (concluding
that admiralty jurisdiction existed over case brought by parents of child
killed when the jet ski she was driving crashed into a vessel anchored in
navigable waters: "Because this case involves a watercraft collision on
navigable waters, it falls within admiralty's domain."); Ayers v. United
States, 277 F.3d 821, 825-28 (6th Cir.) (concluding that admiralty juris-
diction existed over claim brought by estate of swimmer who drowned
after the release of water during the process of locking vessels through
a dam located on the Kentucky River), cert. denied, 122 S. Ct. 2330
(2002).

4
 Every other circuit to consider the question has agreed with the
government. See Mid-South Holding Co. v. United States, 225 F.3d
1201, 1204 (11th Cir. 2000); Good v. Ohio Edison Co., 149 F.3d 413,
418-19 (6th Cir. 1998); Tew v. United States, 86 F.3d 1003, 1005
(10th Cir. 1996); Baldassaro v. United States, 64 F.3d 206, 208 (5th
Cir. 1995); Cassens v. St. Louis River Cruise Lines, Inc., 44 F.3d 508,
511 (7th Cir. 1995); Earles v. United States, 935 F.2d 1028, 1032 (9th
Cir. 1991); Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 891-
93 (3d Cir. 1990); Robinson v. United States (In re Joint E. & S.
Dists. Asbestos Litig.), 891 F.2d 31, 34-35 (2d Cir. 1989); Gercey v.
United States, 540 F.2d 536, 539 (1st Cir. 1976). These courts have
typically concluded that principles of separation of powers require
that the discretionary function be read into the SIAA:

Were we not to find a discretionary function exception to
the SAA, we would subject all administrative and legislative
decisions concerning the public interest in maritime matters
to independent judicial review in the not unlikely event that
the implementation of those policy judgments were to cause
private injuries. Because such an outcome is intolerable
under our constitutional system of separation of powers, we
hold that a discretionary function exception is implied in the
SAA.
Tew, 86 F.3d at 1005 (citation, internal quotation marks, and alter-
ations omitted).

This court, however, has refused to read a discretionary function
exception into the SIAA:

[The SIAA] contains no discretionary function exception,
and the Tort Claims Act contains a specific exception of
claims for which the Suits in Admiralty Act provides a rem-
edy. Thus it is clear that this action could not have been
brought under the Tort Claims Act, and it is properly main-
tainable under the Suits in Admiralty Act, which is an effec-
tive waiver of sovereign immunity.

There is no basis upon which we can import the many
exceptions in the Tort Claims Act into the Suits in Admi-

5
 ralty Act, where the United States is to be held accountable
in admiralty whenever a private person, in similar circum-
stances, would be.

Lane, 529 F.2d at 179 (footnotes omitted). The district court, there-
fore, properly rejected the government's discretionary function argu-
ment.

The government, however, points us to Faust v. South Carolina
State Highway Department, 721 F.2d 934 (4th Cir. 1983), which
appears to have applied a limited form of a discretionary function
exception to cases arising under the SIAA. Because Lane rejected,
without qualification, the argument that the SIAA includes an implied
discretionary function exception, we must follow Lane. See Mentav-
los v. Anderson, 249 F.3d 301, 312 n.4 (4th Cir.) ("[A] panel of this
court cannot overrule, explicitly or implicitly, the precedent set by a
prior panel of this court. Only the Supreme Court or this court sitting
en banc can do that."), cert. denied, 534 U.S. 952 (2001). Tiffany v.
United States, 931 F.2d 271 (4th Cir. 1991), to which the government
also points, implicated the operation of our nation's air defenses, a
context quite different from that presented here. As the Tiffany court
emphasized, the significance of the military setting required the result
quite independently of the discretionary function exception. See id. at
277 (explaining that "the discretionary function exception alone does
not capture all the important aspects of this case").

The dissent contends that by following Lane rather than Faust and
Tiffany, we are effectively overruling Faust and Tiffany, thus violat-
ing the rule that one panel cannot overrule the decision of another
panel. We disagree. As Judge Luttig has noted, the

necessary corollary of this rule is that in those instances in
which a later opinion impermissibly attempts to modify an
earlier opinion, the earlier opinion remains the controlling
law in the circuit with respect to matters as to which the two
opinions unquestionably conflict. Were it otherwise, willing
panels, unconstrained by any sense of obligation to the prin-
ciples of stare decisis, our own internal rules, or notions of
collegiality, could run roughshod over prior precedent,
effectively repealing a rule whose importance to both the

6
 rule of law and to the orderly operation of a court is beyond
dispute.

Harter v. Vernon, 101 F.3d 334, 343 (4th Cir. 1996) (Luttig, J., dis-
senting from denial of rehearing en banc).2 Other circuits have
reached similar conclusions. See, e.g., United States v. Wheeler, 322
F.3d 823, 828 n.1 (5th Cir. 2003) ("Where two previous holdings or
lines of precedent conflict, the earlier opinion controls and is the bind-
ing precedent in the circuit." (internal alteration and quotation marks
omitted)); Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001)
("Once a panel resolves an issue in a precedential opinion, the matter
is deemed resolved, unless overruled by the court itself sitting en
banc, or by the Supreme Court. . . . [A] later three-judge panel consid-
ering a case that is controlled by the rule announced in an earlier
panel's opinion has no choice but to apply the earlier-adopted rule; it
may not any more disregard the earlier panel's opinion than it may
disregard a ruling of the Supreme Court.").

III.

Because this case falls within our admiralty jurisdiction, it is gov-
erned by admiralty law. See, e.g., East River S.S. Corp. v. Transamer-
ica Delaval, Inc., 476 U.S. 858, 864 (1986) ("With admiralty
jurisdiction comes the application of substantive admiralty law.");
Wells v. Liddy, 186 F.3d 505, 524 (4th Cir. 1999) ("All cases involv-
ing a tort committed on navigable water, whether brought under fed-
eral admiralty jurisdiction, in state court under the saving-to-suitors
clause, or in federal court under diversity jurisdiction, are governed
by admiralty law." (internal quotation marks omitted)). The plaintiffs'
____________________________________________________________
2
Contrary to the dissent's suggestion, this court did not apply a differ-
ent standard to conflicting panel opinions in Under Seal v. Under Seal,
326 F.3d 479 (4th Cir. 2003). In that case, the court observed that while
the Supreme Court has articulated a three-factor test for determining
when an otherwise interlocutory decision is immediately appealable
under the collateral order doctrine and more than one thousand panel
opinions from this circuit have applied the three-factor test, fourteen
panel opinions have stated that the collateral order doctrine has four fac-
tors, not three. The Under Seal panel concluded that the three-factor test
articulated in an en banc opinion was controlling. See id. at 482-84.

7
claim is a straightforward negligence claim, the requirements of
which under the general maritime law parallel those of land-based
claims. Thus, the plaintiffs must establish that the government owed
them a duty of care; that the government breached that duty; and that
the government's breach of duty was a proximate cause of the plain-
tiffs' injuries. See Pearce v. United States, 261 F.3d 643, 647 (6th Cir.
2001); 1 Thomas J. Schoenbaum, Admiralty & Maritime Law § 5-2
(3d ed. 2001). The only element presently at issue in this case is that
of duty.3

The plaintiffs contend that the common law imposes a duty to warn
upon the government and that a regulation also imposes upon the gov-
ernment such a duty. The plaintiffs also contend that even if the gov-
ernment did not otherwise have a duty to warn, since the government
in fact undertook to warn about the dam, it was required to use rea-
sonable care when providing those warnings.

A. Duty upon Undertaking

The plaintiffs argue that even if the government did not otherwise
have a duty to warn about the dangers associated with the dam, a duty
exists under the "Good Samaritan Doctrine." That is, the plaintiffs
contend that once the government undertook to place some warnings,
it became obligated to use due care in the exercise of that undertak-
ing. See Good, 149 F.3d at 420 ("Ohio Edison argues that maritime
tort liability exists by virtue of the Good Samaritan Doctrine, which
makes one person liable to another for breach of a duty voluntarily
assumed by affirmative conduct, even when that assumption of duty
is gratuitous." (internal quotation marks omitted)). We agree with the
district court, however, that the plaintiffs have failed to present any
evidence of the kind of reliance necessary to support this theory.
____________________________________________________________
3
Because the district court concluded that the government had no such
duty, the court had no occasion to consider any factual issues, such as
whether the signs actually posted by the government were sufficient to
fulfill any obligation it might have, whether any failing on the part of the
government was a proximate cause of the plaintiffs' injuries, or whether
the plaintiffs themselves were negligent.

8
 The seminal "Good Samaritan" case in the admiralty context is
Indian Towing Co. v. United States, 350 U.S. 61 (1955). In Indian
Towing, the Coast Guard undertook to operate a lighthouse that it was
statutorily authorized, but not required, to operate. The existence of
the lighthouse was noted on various navigational charts. The Coast
Guard negligently maintained the lighthouse, the light was extin-
guished, and a ship ran aground. The Supreme Court concluded that
the Coast Guard's negligence in maintaining the lighthouse did not
fall within the discretionary function exception to the Federal Tort
Claims Act.4 When reaching this conclusion, the Court stated:

The Coast Guard need not undertake the lighthouse ser-
vice. But once it exercised its discretion to operate a light
on Chandeleur Island and engendered reliance on the guid-
ance afforded by the light, it was obligated to use due care
to make certain that the light was kept in good working
order; and, if the light did become extinguished, then the
Coast Guard was further obligated to use due care to dis-
cover this fact and to repair the light or give warning that
it was not functioning.

Id. at 69 (emphasis added).
____________________________________________________________
4
When Indian Towing was decided, the SIAA waived sovereign immu-
nity only in admiralty cases involving government vessels or government
cargo. See Miller v. United States, 725 F.2d 1311, 1314 (11th Cir. 1984);
De Bardeleben Marine Corp. v. United States, 451 F.2d 140, 143 (5th
Cir. 1971). Thus, the plaintiff's claim in Indian Towing was not then
cognizable under the SIAA. The SIAA was amended in 1960 to allow
claims that could be brought in admiralty "if a private person or property
were involved," 46 U.S.C.A. App. § 742, language that rendered the
Act's immunity waiver applicable "not just when a government owned
vessel or cargo was involved but in every situation in which, if a private
person were involved, a proceeding in admiralty could be maintained."
Lane v. United States, 529 F.2d 175, 179 (4th Cir. 1975). The FTCA was
also amended to exclude from its reach any claims that could be brought
under the SIAA. See 28 U.S.C.A. § 2680(d) (excluding from the Tort
Claims Act claims for which the SIAA and certain other admiralty stat-
utes provide a remedy). Thus, claims like that raised in Indian Towing
are now brought under the SIAA, not the FTCA.

9
 Focusing on the "engendered reliance" language, this circuit has
concluded that liability under Indian Towing for an undertaken duty
arises if the plaintiff relied to his detriment on the governmental
undertaking: "The principle laid down in Indian Towing requires no
more than that the government not injure sailors or boaters by induc-
ing reliance on misleading navigational aids. It imposes no general
duty upon the government to ensure navigable waters are safe or to
provide warning devices." Faust v. South Carolina State Highway
Dep't, 721 F.2d 934, 939 (4th Cir. 1983) (emphasis added). Citing
Faust, the district court here concluded that the plaintiffs had not
relied upon or been misled by the government's warning signs, and
that the government therefore had no duty under the Good Samaritan
doctrine.

The plaintiffs do not argue that there is evidence suggesting that
they relied upon warnings issued by the government that turned out
to be wrong. Instead, they simply contend that Indian Towing does
not require reliance on the action undertaken by the government. We
disagree. This court, as evidenced by the decision in Faust, and other
courts have consistently held that liability under Indian Towing is typ-
ically dependent on the plaintiff's reliance on the action undertaken
by the government.5 See, e.g., Limar Shipping, Ltd. v. United States,
324 F.3d 1, 10-11 (1st Cir. 2003) ("[T]he general principle gleaned
from Indian Towing is that the government must not mislead, and
must not induce reliance upon a belief that it is providing something
____________________________________________________________
5
There is, however, an exception to the reliance requirement in cases
where the person undertaking the duty increases the risk that would oth-
erwise have existed. See Myers v. United States, 17 F.3d 890, 904 (6th
Cir. 1994) ("These cases [including Indian Towing] illustrate that, except
for where a government employee intermeddles in a situation and makes
it worse, the good samaritan doctrine will only apply against the govern-
ment in the presence of reasonable, justifiable reliance."); Patentas v.
United States, 687 F.2d 707, 715 (3d Cir. 1982) (explaining that Indian
Towing "makes clear that some element in addition to the undertaking
itself must be proven, but consistent with Indian Towing that element
might be an increased risk of harm"); see also Restatement (Second) of
Torts §§ 323, 324A (1965). The plaintiffs do not contend, nor could they,
that the government, by posting signs that the plaintiffs did not see,
increased the risk to the plaintiffs over that which they would have faced
had no signs been posted.

10
which, in fact, it is not providing." (internal quotation marks omit-
ted)); B&F Trawlers, Inc. v. United States, 841 F.2d 626, 632 (5th
Cir. 1988); ("In Indian Towing . . . an innocent party who was the
intended beneficiary of the government action relied on the govern-
ment to his detriment."); Estate of Callas v. United States, 682 F.2d
613, 623 (7th Cir. 1982) ("The government argues that even if the
sign evidenced negligence, it did not engender justifiable reliance by
the Callases to their detriment and, thus, there can be no liability
under the rule of Indian Towing. It is true that some type of reliance
is necessary to establish that government negligence was a cause of
the injury, but we conclude that there was reliance in the instant case.
. . ." (citation omitted)). The only evidence in the record establishes
that the plaintiffs did not see any of the signs warning of the existence
of the dam. Thus, it cannot be said that the plaintiffs relied to their
detriment on or were mislead by any warnings issued by the govern-
ment. We therefore agree with the district court that no duty on the
part of the government arose under Indian Towing or the Good
Samaritan doctrine. The question, then, is whether a duty arises under
some other source.

B. Regulatory Duty

As with land-based torts, a maritime duty of care can arise from a
statute or regulation. See Southern Nat. Gas Co. v. Pontchartrain
Materials, Inc., 711 F.2d 1251, 1255-56 (5th Cir. 1983); Schoen-
baum, Admiralty & Maritime Law § 5-2 ("In admiralty the duty of
care may be derived from . . . duly enacted laws, regulations, and
rules . . . ."). The plaintiffs contend that 33 C.F.R. § 207.300(s) (2002)
imposes upon the government a mandatory duty to post warning
signs. For its part, the government contends that the regulation
imposes a duty on boaters, but not itself.

The regulation states:

(s) Restricted areas at locks and dams. All waters immedi-
ately above and below each dam, as posted by the respective
District Engineers, are hereby designated as restricted areas.
No vessel or other floating craft shall enter any such
restricted area at any time. The limits of the restricted areas
at each dam will be determined by the responsible District

11
 Engineer and marked by signs and/or flashing red lights
installed in conspicuous and appropriate places.

Id. (emphasis added). The plaintiffs contend that the underscored por-
tion of the regulation imposes upon the government a duty to conspic-
uously and appropriately mark the limits of the restricted area around
the dam. We agree.

There are two ways that section 207.300(s) may be read. First, the
regulation could be understood to declare as "restricted" some area
above and below each dam on the Ohio River, but to leave to the
Corps of Engineers' discretion the determination of the size of each
restricted area. Second, it is possible to read the regulation as giving
the Corps of Engineers discretion as to whether any area around a
dam should be restricted. Since the Corps of Engineers did in fact
restrict an area around the Robert C. Byrd Locks and Dam, it is
unnecessary here to decide which of the possible interpretations of the
regulation is the correct one. And under either reading of the regula-
tion, we conclude that there is a mandatory duty on the part of the
government to conspicuously mark the boundaries of any area sur-
rounding each dam it decides to restrict. See Callas, 682 F.2d at 623
("[T]he warning sign did not mark the limits of the restricted area as
required by the Army regulations."). While the regulation also
imposes a duty on boaters to stay out of the restricted areas, we sim-
ply cannot agree that the boater's duty is the only one created by the
regulation, as some courts have held. See Pearce, 261 F.3d at 648
(concluding that regulation 207.300(s) "creates a duty for boaters, not
for the Corps"); accord Gemp v. United States, 684 F.2d 404, 407-08
(6th Cir. 1982)

A violation of the regulation by the government, however, can sup-
port the plaintiffs' negligence claim only if the plaintiffs are within
the class of persons protected by the regulation and if the harm suf-
fered is the type of harm the regulation was intended to prevent. See
Southern Nat. Gas Co., 711 F.2d at 1256; Loehr v. Offshore Logistics,
Inc., 691 F.2d 758, 761 (5th Cir. 1982); see also Schoenbaum, Admi-
ralty & Maritime Law § 5-2 ("Negligence may be shown by evidence
of violation of a statute or regulation. The statute or regulation must
be determined to be applicable, however; the plaintiff must be
included in the class of persons protected and the harm suffered must

12
be the kind that the statute or rule was designed to prevent."). We
conclude that the plaintiffs satisfy these requirements.

Regulation 207.300(s) requires the government to conspicuously
mark the restricted areas around the dam; nothing in the regulation
specifically requires the government to post signs warning of danger.
That is, the government could perhaps satisfy its obligation under reg-
ulation 207.300(s) by conspicuously posting signs reading "RE-
STRICTED AREA, DO NOT ENTER," rather than signs reading
"DANGER, DAM AHEAD, DO NOT ENTER." Because the regula-
tion does not specifically require the government to give express
safety warnings, it could be argued that the regulation is directed at
the protection of government-owned dams and locks rather than the
safety of those plying the waters of the Ohio River. While the protec-
tion of government property may well be the primary purpose of reg-
ulation 207.300, we think it clear that another purpose of section
207.300(s) is to protect the safety of those nearing the dam and its
hazards.

Preliminarily, we note that there are other subsections of regulation
207.300 that are more specifically aimed at protecting the govern-
ment's property from damage. See, e.g., 33 C.F.R. §§ 207.300(b), (n),
(o), (q). Moreover, any person who damages a government lock or
dam is held strictly liable for those damages. See 33 U.S.C.A. § 408;
United States v. American Comm. Barge Line Co., 988 F.2d 860, 861-
62 (8th Cir. 1993). If section 207.300(s) were directed solely to the
protection of government property, it would add little to the govern-
ment's arsenal. Thus, it is logical to conclude that section 207.300(s)
is directed at something in addition to the protection of the govern-
ment's property.

As will be discussed in more detail below, the operation of a dam
across a navigable waterway is dangerous, and restricting entry into
the waters near the dam is perhaps the best way to ensure the safety
of the boating public. Boaters who approach a conspicuously marked
area they are prohibited from entering will pause and survey their sur-
roundings, giving them an opportunity to recognize the dangers of the
dam. In fact, the Corps of Engineers has in the past acknowledged
that restricting access to the waters around certain dams is critical to
protecting the safety of those on the rivers. See Navigation Regula-

13
tions; McClellan-Kerr Arkansas Navigation System, 49 Fed. Reg.
10680 (March 22, 1984) (adding various regulations, including one
largely identical to section 207.300(s), and noting that the added regu-
lations "pertain to safety items which are essential to protect the locks
and dams and the users" (emphasis added)).

Therefore, while section 207.300(s) may be intended to protect the
government's property, we conclude that it is, at least in part, also a
safety regulation intended to protect those navigating a waterway
from being injured by the perils that a dam built across a navigable
waterway creates. Because the plaintiffs fall within the group of per-
sons the regulation was intended to protect and the harm that befell
them was one that the regulation was intended to prevent, the govern-
ment could be held liable if it breached its duties under section
207.300(s) and that breach proximately caused the plaintiffs' injuries.6
The district court, therefore, erred by rejecting the plaintiffs' conten-
tion that regulation 207.300(s) imposed a duty on the government.

C. Duty under the General Maritime Law

In admiralty cases, unless there is "a relevant statute, the general
maritime law, as developed by the judiciary, applies." East River S.S.
Corp., 476 U.S. at 864. "Drawn from state and federal sources, the
general maritime law is an amalgam of traditional common-law rules,
modifications of those rules, and newly created rules." Id. (footnote
omitted).

Broadly speaking, the general maritime law imposes a duty to exer-
cise reasonable or ordinary care under the circumstances, a duty
which includes the duty to warn of foreseeable dangers. See Bubla v.
Bradshaw, 795 F.2d 349, 353 (4th Cir. 1986) ("The duty of ordinary
care includes, of course, a duty to warn of harm that is reasonably
foreseeable under the circumstances."); Daigle v. Point Landing, Inc.,
616 F.2d 825, 827 (5th Cir. 1980) ("In analyzing a maritime tort case,
we rely on general principles of negligence law. The plaintiff is owed
____________________________________________________________
6
Whether the signs in place around the dam were sufficient to satisfy
the government's duty, and whether any breach by the government
caused the plaintiffs' injuries, of course, are factual issues that must be
resolved through further proceedings before the district court.

14
a duty of ordinary care. A defendant's failure to warn the plaintiff
does not breach that duty, however, unless the resultant harm is rea-
sonably foreseeable. Liability for a failure to warn thus arises from
foreseeability, or the knowledge that particular conduct will create
danger." (citation omitted)); see also Schoenbaum, Admiralty & Mar-
itime Law § 5-2) ("A duty of care exists when injury is foreseeable.
. . .").

In our view, the duty the plaintiffs envision—a duty to warn about
the dangers of a dam the government constructs across navigable
waters—fits easily within this general duty rubric. To state the obvi-
ous: a dam across a navigable waterway is a dangerous thing, in much
the same way that a barricade put up by the government across an
interstate highway would be a dangerous thing. In fact, a dam across
navigable waters is arguably more dangerous than a barricade across
an interstate highway, because dams can be less visible and because
water currents can make it difficult to stop a boat or steer it away
from danger. In light of the nature and operation of a dam built across
a navigable waterway, it is clearly foreseeable that those who
approach too closely may be injured.7 Accordingly, we believe that
under the general maritime law, exercise of reasonable care in the cir-
cumstances requires the owner and operator of a dam at the very least
to give adequate warnings about the existence of the dam.

Other courts have reached the same conclusion, determining in
cases involving government-operated dams that the government has
at a minimum some obligation to warn of such danger. See Kohl v.
United States, 712 F.2d 286, 290 (7th Cir. 1983) (concluding that
government had duty to warn of dam); Dye v. United States, 210 F.2d
123, 128 (6th Cir. 1954) ("Although the dam was constructed under
lawful authority, a duty rested upon the operator of the dam to give
____________________________________________________________
7
The general dangers associated with the operation of dams across
navigable waters and the foreseeability of injuries seem to be sufficiently
apparent to the government as well, given the government's frequent use
of pamphlets, news releases, and the like to increase the public's aware-
ness of the dangers of dams. See Gemp v. United States, 684 F.2d 404,
409 (6th Cir. 1982) (Merritt, J., dissenting); Estate of Callas, 682 F.2d
at 621 n.9; Beeler v. United States, 256 F. Supp. 771, 774-75 (W.D. Pa.
1966).

15
adequate warning of a dangerous condition, when existing, and the
failure to do so would impose liability upon the operator."); Doty v.
United States, 531 F. Supp. 1024, 1034 (N.D. Ill. 1982) ("As owner
and operator of Lock and Dam 13 the Corps (and therefore the United
States) had a duty to warn users of the Mississippi River that it is dan-
gerous to approach too near to the dam."); see also Pearce v. United
States, 261 F.3d 643, 650 (6th Cir. 2001) ("The district court deter-
mined that there was no negligence on the part of the Corps because,
while it had a duty to warn boaters of the dangers around the dam,
it satisfied that duty . . . . The district court's factual findings were
sound and, based on those findings, its conclusion that the Corps was
not negligent because it satisfied its duty to warn of danger was not
in error." (emphasis added)); Graves v. United States, 872 F.2d 133,
136 (6th Cir. 1989) ("[T]he district court determined that there was
no negligence on the part of the Corps because it had met its duty to
warn of any hazards associated with the closing of the locks . . . . We
believe the district court's finding of [the boater's presumed knowl-
edge of information shown of navigational charts] coupled with the
remaining warning sign reasonably satisfies any duty to warn."
(emphasis added)).8
____________________________________________________________
8
Contrary to the dissent's suggestion, we do not believe that this rule
is inconsistent with the decision in Magno v. Corros, 630 F.2d 224 (4th
Cir. 1980). In Magno, the plaintiff's decedent died when his boat crashed
into a dike built and maintained by the government which was marked
by a single light at the end. The district court found the government lia-
ble, concluding that the lighting of the dike undertaken by the govern-
ment was inadequate. This court reversed, concluding that the
government could not be held liable because it had no duty to provide
additional lighting. The Magno court repeatedly framed the issue as
whether the government was under a duty to provide additional lighting.
See id. at 225 ("The government appeals from that judgment on the
ground that it was under no duty to provide additional lighting on the
dike. We agree with the government's contention . . . ." (emphasis
added)); id. at 227 ("[A] decisive issue in this case is whether the United
States was under a duty to provide additional lighting or some other type
of marking on the dike as a warning to boaters in the area." (emphasis
added)); id. at 228 ("Plaintiff here has presented us with no authority and
has introduced no evidence that would impose upon anyone a duty to
mark the dike any more clearly than the United States did in this case."
(emphasis added)). By concluding that the government did not have a
duty to provide additional lighting, the opinion clearly proceeds on the
assumption that the government in fact had a duty to provide some light-
ing of the dike.

16
 Such a duty is similar to the duties imposed by the general mari-
time law on private defendants responsible for obstructions in naviga-
ble waterways. See Smith v. Burnett, 173 U.S. 430, 433 (1899)
(noting that wharfingers must exercise reasonable diligence in deter-
mining the safety of their berths, a duty which requires them to
remove any dangerous obstruction in a berth "or to give due notice
of its existence to vessels about to use the berths"); Ranger Ins. Co.
v. Exxon Pipeline Co., 760 F. Supp. 97, 98-99 (W.D. La. 1990) ("A
prudent pipeline owner or operator should warn of the crossing of a
pipeline. . . . Moreover, if [the defendant] maintains a pipeline above
the mud line, it has a further duty to warn of this potential obstruction
to navigation."); Cumberland County Utilities Auth. v. The M/T Del-
bar, 604 F. Supp. 383, 389 (D.N.J. 1985) ("The plaintiff, as owner of
a structure which extends into a navigable waterway, has a duty to
adequately mark such structure. Failure to do so with an appropriate
warning is negligence."), aff'd, 930 F.2d 916 (5th Cir. 1991) (table);
see also Creppel v. Shell Oil Co., 738 F.2d 699, 701 (5th Cir. 1984)
("Our research . . . has revealed no precedent in which a private
party's liability for damages resulting from collision of a boat with an
obstruction in navigable waters was predicated on any basis other
than the defendant's ownership, custody, or placement of the obstruc-
tion in the navigable waters.").

And while it is not dispositive on the question of the existence of
a duty under the general maritime law, we also believe the same duty
would arise under common law principles. As noted above, land-
based common law principles are often incorporated into the general
maritime law. See, e.g., East River S.S. Corp., 476 U.S. at 864
(explaining that "the general maritime law is an amalgam of tradi-
tional common-law rules, modifications of those rules, and newly cre-
ated rules").

In tort actions, courts frequently look to the Restatement (Second)
of Torts as a source of general common law principles that should be
incorporated into the general maritime law. See Wells, 186 F.3d at
525 (noting that because "there is no well-developed body of general
maritime law of defamation . . ., the general maritime law may be
supplemented by either state law or more general common law princi-
ples," and determining that "the common law as compiled in the
Restatement (Second) of Torts should control our evaluation of

17
Wells's claim of shipboard defamation"); see also Wallis v. Princess
Cruises, Inc., 306 F.3d 827, 841 (9th Cir. 2002); Marastro Compania
Naviera, S.A. v. Canadian Maritime Carriers, Ltd., 959 F.2d 49, 53
(5th Cir. 1992). We agree with the plaintiffs that, under the principles
set forth in the Restatement, the government would have a duty to
warn about the existence of the dam.9

Section 343 of the Restatement provides that:

A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land if, but
only if, he

(a) knows or by the exercise of reasonable care would dis-
cover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them
against the danger.
Restatement (Second) of Torts § 343 (1965); see also Stone v. York
Haven Power Co., 749 A.2d 452, 457 (Pa. 2000) ("[A]ppellants have
____________________________________________________________
9
The government has fully responded to all of the plaintiffs' appellate
arguments, but the government notes in passing that the plaintiffs did not
argue below that a duty to warn arises under the common law and that
they should be precluded from making that argument on appeal. See
Brief of Appellee at 16, n.6. Nothing in the Joint Appendix reveals the
precise arguments raised below. However, even if the plaintiffs did not
mention the Restatement or other sources of land-based common law to
the district court, we would not be precluded from looking to those
sources for support for our determination that a duty to warn exists under
the general maritime law, a body of law that often looks to the common
law for guidance. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90,
99 (1991) ("When an issue or claim is properly before the court, the
court is not limited to the particular legal theories advanced by the par-
ties, but rather retains the independent power to identify and apply the
proper construction of governing law.").

18
a duty to maintain the dam in a safe condition and are subject to suit
for any harm caused by their negligent failure to do so or to warn of
dangers posed by that improvement."). This section sets forth essen-
tially the same duty that we have described above. Under section 343,
the government, as owner of the dam, has a duty to warn about its
existence because members of the public, absent some warnings, may
not discover that a dam is there until it is too late.

As the language of this section makes clear, section 343 reflects the
common-law duty owed to invitees; the Restatement sets forth differ-
ent standards to be applied when licensees or trespassers are involved.
The government notes that the plaintiffs entered into the restricted
area where boats are prohibited, and the government contends that to
the extent any common law duties are relevant to this case, the plain-
tiffs would be considered trespassers to whom it owed no duty.

In Kermarec v. Compagnie Generale Transatlantique, 358 U.S.
625 (1959), a case involving a claim against a shipowner by a plain-
tiff who had been onboard to pay a social call on a member of the
crew, the Supreme Court concluded that making such distinctions
based on the status of the plaintiff "would be foreign to [admiralty
law's] traditions of simplicity and practicality." Id. at 631. The Court
therefore concluded that, regardless of whether the plaintiff would be
treated as an invitee or licensee under land-based negligence princi-
ples, "the owner of a ship in navigable waters owes to all who are on
board for purposes not inimical to his legitimate interests the duty of
exercising reasonable care under the circumstances of each case." Id.
at 632. This court has read the Kermarec court's rejection of the
common-law invitee, licensee, and trespasser labels as a rejection of
the labels in all admiralty claims, not just claims against shipowners.
See Bubla, 795 F.2d at 353 n.2 ("Kermarec, though considering spe-
cifically the duty of a shipowner, broadly abolished such distinctions
for those properly within admiralty . . . ."). Thus, we find unavailing
the government's efforts to characterize the plaintiffs as trespassers so
as to reduce the duty of care owed to the plaintiffs by the government.

Without regard to the status that might be accorded the plaintiffs
under land-based common law principles, we believe that, of the vari-
ous statements of a landowner's duty set forth in the Restatement, the
standard set forth in section 343 is the most consistent with the gen-

19
eral maritime law's demand for the exercise of reasonable care under
the circumstances. Cf. Gemp v. United States, 684 F.2d 404, 407 (6th
Cir. 1982) (concluding that section 343A provides "useful guidance"
on the question of whether the government had a duty to warn about
the dangers associated with a dam); Harris v. Reederei, 657 F.2d 53,
54-55 (4th Cir. 1981) (per curiam) (finding section 343A to be rele-
vant when determining scope of shipowner's duty to employees of a
stevedore). We therefore conclude that land-based common-law prin-
ciples as reflected in the Restatement support our conclusion that the
government has a duty to warn about a dam it operates.

The government insists, however, that the dam was open and obvi-
ous and that it therefore had no duty to warn. We have no quarrel with
the broad proposition that there normally is no duty under the general
maritime law to warn of an open and obvious danger. See, e.g., Gemp,
684 F.2d at 406-08; Farrell v. United States, 167 F.2d 781, 783 (2d
Cir. 1948); Little v. United States, 290 F. Supp. 581, 584 (E.D. La.
1968). But we cannot assume that every dam is open and obvious. For
example, some dams and similar structures are constructed to be
below the water line, with little if any structure extending above the
water, see, e.g., Theriot v. United States, 245 F.3d 388, 393 (5th Cir.
1998) (underwater sill); Pagnotti v. Lancaster Township, 751 A.2d
1226, 1227-28 (Pa. Commw. Ct. 2000) (low-head dam), and a dam
located in a bend of a river may not be visible until it is too late. Thus,
whether a dam is sufficiently open and obvious so as to relieve the
government of any obligation to warn will normally be a question of
fact dependent upon the particular circumstances of each case. This
point is illustrated by Gemp v. United States, 684 F.2d 404 (6th Cir.
1982), a case upon which the government relies.

In Gemp, two men were fishing in a "stilling bay" (the area into
which water flowing over a dam through an open gate is collected)
of a navigational dam across the Ohio River. Because of the nature
of the dam's construction, the water in the stilling bay was typically
turbulent, with "spray, foam, white water, and a vortex near the face
of the dam." Id. at 406. The men, both of whom had previously fished
in the area below the dam, secured their boat to one of the piers sepa-
rating the stilling bays. The boat became unsecured, struck the pier,
and sank; one of the men drowned, the other was injured. After a
bench trial, the district court concluded as a matter of fact that the

20
"hazards created by the open gate were obvious to any person who
ventured near the . . . [d]am." Id. at 406-07 (internal quotation marks
omitted). Because the hazards were obvious, the district court con-
cluded that the government had no duty to warn. The Sixth Circuit
affirmed that factual determination on appeal, concluding that the
finding was "amply supported by the record." Id. at 407.
Thus, all the court did in Gemp was conclude, as a factual matter
in that particular case, that the hazards of the dam were open and
obvious, so that the government in that case had no duty to warn. But
no such factual finding has been made in this case, nor can it be said
that the only inference to be drawn from the evidence is that the dam
was open and obvious. For example, while the plaintiffs saw the
structure of the dam before the accident, none of them recognized it
for what it was—they all believed that they were about to pass under
a bridge. The reasonableness of this belief is a factual issue that, along
with others, must be addressed below in the first instance. Accord-
ingly, the question of whether there was an open and obvious danger
so as to relieve the government of its duty to warn is simply not
before this court at this time.

The government also contends that the duty urged by the plaintiffs
is inconsistent with the rule that it is not an insurer of the safety of
navigable waters and that it cannot be charged with the responsibility
of warning about all obstructions in navigable waters. We again have
no quarrel with the government's articulation of this general rule. See
Faust, 721 F.2d at 939 ("We are aware of no authority . . . which
holds that the United States may be held liable on a common law tort
theory of failure to maintain safe conditions on navigable waters
which it `owns.'"); see also Eklof Marine Corp. v. United States, 762
F.2d 200, 202 (2d Cir. 1985) ("It has long been established that the
Coast Guard has no statutory mandate to ensure the safety of all navi-
gable waterways in the United States and thus it has no duty to mark
all obstructions.").

Contrary to the government's contention, however, the duty at
issue in this case is completely consistent with the general rule that
the government is not an insurer of the safety of the navigable waters.
The duty in this case springs not from the government's capacity as
the "owner" of all navigable waterways, but from its capacity as the

21
owner and operator of an artificial obstruction across one particular
navigable waterway. Concluding that the government has a duty
under the general maritime law to warn about a dam that it built,
owns, and operates is a far cry from concluding that the general mari-
time law requires the government to warn about all obstructions in all
navigable waterways.

The Ninth Circuit reached a similar conclusion in Sutton v. Earles,
26 F.3d 903 (9th Cir. 1994). In that case, the court concluded that the
government had a duty to warn recreational boaters about a mooring
buoy placed by the government within the waters of a naval base that
was open to public use. The court rejected the government's argu-
ment, based on this court's decision in Faust, that it had no duty to
warn:

For the United States to be liable in Faust would have
required finding a general duty on the part of the United
States to ensure the safety of navigable waters. In contrast,
our decision imposes no general duty to ensure the safety of
navigable waters. We merely conclude that the Navy must
take reasonable precautions to warn of dangers it creates by
placing obstructions within the navigable waters of its
Weapons Station. Indeed, the government admits that it
owed the same duty imposed upon private parties whose
property abuts or includes navigable waters—a duty to exer-
cise reasonable care. We agree with the district court that
this duty includes a duty to warn those lawfully plying the
Weapons Station waters of the hazard placed there by the
Navy.
Id. at 912 (citations omitted).

We therefore conclude that the general maritime law's requirement
of the exercise of reasonable care under the circumstances imposes on
the government a requirement to warn about a dam that it operates
across navigable waters.10 While there may be individual cases
____________________________________________________________
10
We note that this duty is not a particularly burdensome one. Where
the government owns and operates a dam across navigable waters, the

22
involving an open and obvious dam about which the government has
no duty to warn, the open and obvious nature of the dam will gener-
ally be a factual question. Accordingly, we conclude that the district
court erred in its conclusion that the government had no duty to warn
of the Robert C. Byrd Locks and Dam.

D. Other Issues
Because we have concluded that the government's ownership and
operation of a dam across navigable waters can give rise to a duty to
warn, we must briefly address the government's alternative arguments
as to why the district court's decision should be affirmed.

(i)

As noted above, the SIAA provides that "the United States is to be
held accountable in admiralty whenever a private person, in similar
circumstances, would be." Lane, 529 F.2d at 179. The government
contends that a private person in this situation would be absolved of
liability by virtue of the "recreational use" statute in effect in West
Virginia (and most other states), and that it too should be protected
by the recreational use statute.11 We disagree.
____________________________________________________________

government already has employees in place who are familiar with the
dam and the unique dangers it presents. The government can without
much difficulty put to use the information it already possesses to fashion
an appropriate warning system. By contrast, a duty on the government
to warn of every obstruction in navigable waters would be so onerous as
to approach impossibility—to carry out such a duty would require vast
numbers of employees continuously searching for obstructions in the
many thousands of miles of navigable inland and coastal waters.
11
In general terms, recreational use statutes "provide incentives for
property owners to allow others to use their property gratuitously by
altering the duties providers owe recreational users. By redefining the
duty of care, the recreational use statutes make it less likely that a prop-
erty owner will be liable for damages to an injured recreational user."
Terence J. Centner, Revising State Recreational Use Statutes to Assist
Private Property Owners and Providers of Outdoor Recreational Activi-
ties, 9 Buffalo Envtl. L.J. 1, 2 (Fall 2001) (footnote omitted).

23
 As noted above, maritime law is federal law. While admiralty
courts may apply state law in some circumstances, state law will not
be applied if its application would "frustrate national interests in hav-
ing uniformity in admiralty law." Coastal Fuels Marketing, Inc. v.
Florida Express Shipping Co., 207 F.3d 1247, 1251 (11th Cir. 2000);
see Wells, 186 F.3d at 525 ("State law is said to conflict with general
maritime law when it negatively impacts upon admiralty's foremost
goal — uniformity."); Byrd v. Byrd, 657 F.2d 615, 617 (4th Cir. 1981)
("A state law, even though it does not contravene an established prin-
ciple of admiralty law will, nevertheless, not be applied where its
adoption would impair the uniformity and simplicity which is a basic
principle of the federal admiralty law, or where its application would
defeat an otherwise meritorious maritime cause of action." (citations
omitted)).

Although there are many similarities between the various state rec-
reational use statutes, there are significant differences as well. For
example, the West Virginia statute provides that liability may be
imposed only for deliberate, willful, or malicious actions, see W. Va.
Code Ann. §§ 19-25-2, 19-25-4 (Michie 2001), while the South Caro-
lina statute allows liability to be imposed for gross negligence, see
S.C. Code Ann. § 27-3-60(a) (1991). In Georgia, the statute does not
apply if the plaintiff is injured in an off-limits area within an other-
wise open recreational area, see Georgia Power Co. v. McGruder,
194 S.E.2d 440, 441 (Ga. 1972), while the statute would apply in
those circumstances in Indiana, see McCormick v. Indiana, 673
N.E.2d 829, 834-35 (Ind. Ct. App. 1996). Thus, application of the rec-
reational use statute of the state where a maritime accident happened
to occur would lead to disparate results based only on the fortuity of
geography and would frustrate the goal of developing a uniform body
of maritime law. Accordingly, we conclude that state recreational use
statutes cannot be applied in admiralty actions.12
____________________________________________________________
12
Although at least one district court has applied a state's recreational
use statute in an admiralty case, see Pearce, 261 F.3d at 650 (noting but
declining to consider district court's alternative conclusion that Tennes-
see's recreational use statute applied to shield government from claim of
negligent operation of a dam), we have found no circuit court opinion
applying a state recreational use statute in an admiralty case. State recre-
ational use statutes, however, have been applied in favor of the govern-

24
 (ii)

The government also contends that plaintiffs' actions were the sole
cause of the accident because they failed to consult navigational
charts that would have shown the existence of the dam and because
they violated various navigational "Rules of the Road"13—for exam-
ple, failing to keep a proper lookout. But again, the district court
decided only the question of duty; it did not consider the questions of
proximate cause and comparative negligence, which are clearly fac-
tual questions that cannot be resolved by this court in the first
instance. See Lane, 529 F.2d at 180 ("In some circumstances, particu-
larly when large vessels are involved, the failure to have and to use
current charts may be so obviously negligent as to require a finding
to that effect. Circumstances are important, however, and consider-
ation must be given to such things as the size of the vessel, its draft,
the navigator's experience, his general familiarity with the waters,
and his handling of the vessel." (footnote omitted)); see also Theriot,
245 F.3d at 400-01 (concluding that recreational boater's failure to
____________________________________________________________

ment in actions brought under the FTCA, including cases involving
injuries caused by the government's operation of a dam. See Henderson
v. United States, 965 F.2d 1488 (8th Cir. 1992); Maldonado v. United
States, 893 F.2d 267 (10th Cir. 1990); Morgan v. United States, 709 F.2d
580 (9th Cir. 1983); Cox v. United States, 827 F. Supp. 378 (N.D.W. Va.
1992); Chrisley v. United States, 620 F. Supp. 285 (D.S.C. 1985), aff'd
791 F.2d 165 (4th Cir. 1986) (table); Russell v. Tennessee Valley Auth.,
564 F. Supp. 1043 (N.D. Ala. 1983). Because these cases were brought
under the FTCA, admiralty jurisdiction did not exist. See 28 U.S.C.A.
§ 2680(d) (excluding from the Tort Claims Act claims for which the
SIAA and certain other admiralty statutes provide a remedy); Pearce,
261 F.3d at 647 ("Claims for which a remedy is available under [SIAA]
are not cognizable under [the Tort Claims Act]."). Because the FTCA
requires the application of the law of the state where the challenged act
or omission occurred, see 28 U.S.C.A. § 1346(b)(1), uniformity is obvi-
ously not a primary concern under the FTCA.
13
Commonly referred to as the "Rules of the Road," the Inland Naviga-
tion Rules, 33 U.S.C.A. §§ 2001-73, "encompass long-standing steering
and sailing rules and principles . . . [and] govern navigation on inland
waters." Turecamo Maritime, Inc. v. Weeks Dredge No. 516, 872 F.
Supp. 1215, 1229 (S.D.N.Y. 1994).

25
refer to navigational charts was simply a factor to be considered when
determining whether the boater used reasonable care under the cir-
cumstances). Moreover, any negligence on the part of the plaintiffs
would not bar their claims, but would only reduce the amount of any
recovery. See, e.g., Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424,
431 (1939) (explaining that under "the established admiralty doctrine
of comparative negligence . . ., contributory negligence, however
gross, is not a bar to recovery but only mitigates damages"). Accord-
ingly, the government's arguments as to any negligence on the part
of the plaintiffs raise only factual issues that must be resolved through
further proceedings after remand.

(iii)

Finally, the government suggests that even if it had a duty to warn,
it satisfied that duty by accurately noting on navigational charts the
existence of the dam and the extent of the restricted areas surrounding
it—charts the plaintiffs admittedly did not consult. See Gemp, 684
F.2d at 408 (explaining that "pleasure craft operators are charged as
a matter of law with knowledge of information shown on such
charts"); accord Graves v. United States, 872 F.2d 133, 136 (6th Cir.
1989). We disagree.

Unlike the Sixth Circuit, this circuit has refused to impute to
boaters knowledge of information contained in navigational charts.
See Lane, 529 F.2d at 180. The sufficiency of the warnings actually
provided by the government, including the information about the dam
shown on various charts, is therefore a factual question that must be
resolved on remand. Moreover, as we have already discussed, 33
C.F.R. § 207.300(s) imposed on the government a duty to conspicu-
ously mark the limits of the restricted area around the dam; this duty
to provide a physical marking cannot be satisfied through notations
on various navigational charts. See id. (The "duty as the Coast Guard
has to mark wrecks hazardous to navigation is not discharged by the
publication by the Department of Commerce of a chart.").

IV.

To summarize, we conclude that 33 C.F.R. § 207.300(s) imposed
on the government a mandatory duty to conspicuously mark the

26
restricted area around the Robert C. Byrd Locks and Dam. We also
conclude that the requirement under the general maritime law for the
exercise of ordinary care under the circumstances generally obligates
the government, as the owner and operator of a dam across navigable
waters, to warn about the dam.14 While the duty may not arise in a
case where the dam is open and obvious, whether the dam is suffi-
ciently open and obvious will normally be a factual question. The dis-
trict court therefore erred by concluding as a matter of law that the
government owed no duty to the plaintiffs. Accordingly, we reverse
the district court's order and remand for further proceedings not
inconsistent with this opinion.

REVERSED AND REMANDED

NIEMEYER, Circuit Judge, dissenting:

The four plaintiffs, riding on two jet-skis at speeds between 35 and
50 miles per hour down the center of the Ohio River, went over the
Robert C. Byrd dam, plunging 20-25 feet into the water below. They
sustained multiple bruises and other soft-tissue injuries. They
acknowledge that they were driving down the river for recreational
purposes, "goofing off waving at each other" and viewing the scenery.
They explain that they went over the dam because they mistook the
dam's superstructure for a bridge. They also assert that they did not
see several signs warning of the dam. There were two signs — one
on each side of the river approximately 4,000 feet from the dam —
one stating "Restricted, No Boats Here to Dam" and the other stating
"Restricted, No Boats Beyond This Sign." There was another sign on
a piling in the river approximately 2,000 feet from the dam stating
"Restricted, No Boats Beyond This Sign." Finally, there was a sign
on the dam superstructure which simply said "DAM." Apparently,
one of the signs 4,000 feet from the dam was obscured by foliage, but
the other signs were visible. The four jet-skiers commenced this
action against the United States under the Suits in Admiralty Act,
____________________________________________________________
14
We again emphasize that the question before this court is the exis-
tence vel non of a duty to warn on the part of the government. Thus, we
do not consider whether actions that might satisfy the government's duty
under regulation 207.300(s) will necessarily satisfy the duty that arises
under the general maritime law.

27
alleging that the United States was negligent in failing adequately to
warn them of the dam.

The district court, although rejecting the government's assertion of
sovereign immunity, concluded nonetheless that the government had
no duty "to ensure navigable waters are safe or to provide warning
devices." Accordingly, it entered summary judgment in favor of the
United States.

In addition to reversing the district court's decision as to the exis-
tence of a duty, the majority holds that the United States does not
enjoy sovereign immunity for claims within our admiralty jurisdiction
arising out of the federal government's performance of discretionary
functions because the Suits in Admiralty Act does not explicitly pro-
vide for such an exception. In rejecting governmental immunity in
admiralty for discretionary functions, the majority revives a conflict
between this circuit and the ten other circuits that have considered this
issue. With regard to the government's duties, the majority holds that
the United States has a duty to the plaintiff jet-skiers, arising out of
33 C.F.R. § 207.300(s), "to conspicuously mark" the restricted area
around the dam and a new general maritime law duty "to warn about
the dam." In imposing these new duties on the United States, the
majority transforms a regulation designed to protect government
property into a safety regulation and overlooks our own circuit's pre-
cedent controlling the general maritime law issue.

Because I would reconcile our inconsistent precedents on the
immunity issue in favor of the constitutionally mandated separation-
of-powers principles that accord immunity to discretionary actions of
the United States, I would order dismissal of the case on that ground.
In any event, because I would find no basis to create new maritime
duties, I would affirm the district court's judgment.

I

Based on the confusing and ambivalent state of our circuit's juris-
prudence created by three conflicting decisions,1 the district court
____________________________________________________________
1
Tiffany v. United States, 931 F.2d 271 (4th Cir. 1991); Faust v. South
Carolina State Highway Dep't, 721 F.2d 934 (4th Cir. 1983); Lane v.
United States, 529 F.2d 175 (4th Cir. 1975).

28
denied the United States sovereign immunity for claims within its
admiralty jurisdiction based on the government's discretionary con-
duct. Bypassing an opportunity to correct this problem, the majority
now perpetuates it, thereby placing the Fourth Circuit in conflict with
the ten other circuits to have considered the issue, a fact that the
majority readily acknowledges.

The fundamental presumption relating to governmental liability is
that the United States enjoys sovereign immunity unless it expressly
waives that immunity by clear and unambiguous language. See, e.g.,
Lane v. Pena, 518 U.S. 187, 192 (1996) ("A waiver of the Federal
Government's sovereign immunity must be unequivocally expressed
in statutory text and will not be implied. Moreover, a waiver of the
Government's sovereign immunity will be strictly construed, in terms
of its scope, in favor of the sovereign" (internal citations omitted)).
The waiver invoked by the plaintiffs in this case is the Suits in Admi-
ralty Act, 46 U.S.C. app. §§ 741-52, the maritime counterpart to the
Federal Tort Claims Act. Under the Suits in Admiralty Act, "[i]n
cases where if . . . a private person or property were involved, a pro-
ceeding in admiralty could be maintained, any appropriate nonjury
proceeding in personam may be brought against the United States."
46 U.S.C. app. § 742. Because this Act does not expressly exclude
cases involving discretionary governmental functions, as does the
Federal Tort Claims Act, the majority concludes that the United
States has waived its immunity even for its discretionary actions. The
majority never addresses, however, how this interpretation can be
advanced in the face of constitutionally based separation-of-powers
principles, even though it recognizes the uniformity of decisions in
other circuits that apply separation-of-powers principles to recognize
the government's immunity. See ante at 5 (citing cases from the First,
Second, Third, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Cir-
cuits holding that the discretionary function exception applies to suits
brought against the United States under the Suits in Admiralty Act);
see also Canadian Transp. Co. v. United States, 663 F.2d 1081, 1085
(D.C. Cir. 1980) (same holding). I can find no valid reason why this
circuit continues with an aberrant approach that does not even
acknowledge the potential applicability of these constitutional princi-
ples.

The Suits in Admiralty Act, which grants a limited waiver of the
federal government's sovereign immunity, has a somewhat compli-

29
cated history, only a portion of which needs to be related here.
Although originally passed in 1920, the Act in its present form is the
product of a 1960 amendment enacted to address "severe jurisdic-
tional problems facing the plaintiff with a maritime claim against the
United States." United States v. United Continental Tuna Corp., 425
U.S. 164, 172 (1976). Prior to the 1960 amendment, a plaintiff with
a maritime-related claim against the United States could bring suit
under any one of four different statutes, depending on the nature of
the claim: The Suits in Admiralty Act, the Public Vessels Act, the
Tucker Act, or the Federal Tort Claims Act. Id. at 172-75. "It was the
difficulty in determining the appropriate forum for a maritime claim
against the United States that moved Congress to amend the Suits in
Admiralty Act in 1960." Id. at 175. The Supreme Court explained:

Two amendments were designed to clarify the jurisdictional
language of the Suits in Admiralty Act. First, the committee
added language authorizing suits against the United States
where a suit would be maintainable "if a private person or
property were involved." The prior version of the Act had
authorized suits against the United States only when suits
would be maintainable if the "vessel" or "cargo" were pri-
vately owned, operated, or possessed, and that language had
generated considerable confusion.

Second, the committee . . . deleted the language in the juris-
dictional section of the Suits in Admiralty Act requiring that
a vessel be "employed as a merchant vessel."
Id. at 176-77. The Court went on to explain that the function of the
first of these amendments was "to require that those maritime tort
claims that were previously cognizable only on the law side of the
district courts under the Federal Tort Claims Act now be brought on
the admiralty side of the district courts under the Suits in Admiralty
Act." Id. at 176 n.14.

This transfer of the statutory basis for the waiver of sovereign
immunity for some maritime tort claims from the Federal Tort Claims
Act to the Suits in Admiralty Act created the problem at the heart of
the present appeal. As the Seventh Circuit explained:

30
 One of the results of the 1960 amendments was to remove
maritime claims such as the one at bar [alleging Coast
Guard negligence for failure to place a light at the end of a
breakwater] from the coverage of the Federal Tort Claims
Act (FTCA). However, when the [Suits in Admiralty Act]
was amended, the exceptions to the FTCA's waiver of sov-
ereign immunity set out in 28 U.S.C. § 2680 were not
restated in the [Suits in Admiralty Act]. Thus, if the excep-
tions expressed in 28 U.S.C. § 2680 are not implied in suits
under the [Suits in Admiralty Act], the 1960 amendments to
the [Suits in Admiralty Act] will have served not only to
eliminate jurisdictional difficulties but also to extend the
waiver of sovereign immunity in the area of maritime law.
This court must determine whether the 1960 amendments to
the [Suits in Admiralty Act] were intended to eliminate the
discretionary function exception to the waiver of sovereign
immunity expressed in the FTCA or whether this exception
should be implied into the [Suits in Admiralty Act].

Bearce v. United States, 614 F.2d 556, 558-59 (7th Cir. 1980).

The government argues in this case that despite the inartful transfer
of the governmental waiver from the Federal Tort Claims Act to the
Suits in Admiralty Act, we should apply the discretionary function
exception because holding otherwise and "imposing liability upon the
basis urged here would involve the court in second-guessing the basic
policy decisions of the Corps [of Engineers], in violation of the doc-
trine of separation of powers — a doctrine that this and other circuits
recognize courts must observe `even in the absence of an explicit stat-
utory command.'" Brief for United States at 29 (quoting Tiffany v.
United States, 931 F.2d 271, 276-77 (4th Cir. 1991) (internal quota-
tion marks and citation omitted)). I agree with the government's
observations. Moreover, our decision in Tiffany directly supports the
government, applying in this circuit the typical formulation that has
been used in each of the ten other circuits to have addressed this issue.
For example, the court in Wiggins v. United States, 799 F.2d 962, 966
(5th Cir. 1986), stated:

Without the implication of a discretionary functions excep-
tion in the [Suits in Admiralty Act], every decision of a gov-

31
 ernment official cognizable under that Act would be subject
to a second-guessing by a court on the claim that the deci-
sion was negligent. All the Courts of Appeals which have
faced this disruptive and overbearing prospect, with the
exception of Lane v. United States [decided by the Fourth
Circuit], have recognized the danger and have recognized an
implied discretionary function limitation in the [Suits in
Admiralty Act]. And the Lane case has been severely lim-
ited by a later decision of the Fourth Circuit.

See also In re Joint Eastern & Southern Dists. Asbestos Litigation,
891 F.2d 31, 35 (2d Cir. 1989) ("Only the Fourth Circuit has failed
to limit the [Suits in Admiralty Act] by the discretionary function
exception. Subsequently, however, the Fourth Circuit appeared to
depart from its stance, so that the Fourth Circuit is no longer on
record as having held unassailably that no discretionary function
exception is implied in the [Suits in Admiralty Act]" (internal quota-
tion marks and citations omitted)).

The uniformity of the decisions in the other circuits is due in large
part to the Supreme Court authority articulating the constitutional
foundations of the statutory discretionary function exception in the
Federal Tort Claims Act. In particular, the other circuit courts have
relied on dictum from United States v. S.A. Empresa de Viacao Aerea
Rio Grandense (Varig Airlines), 467 U.S. 797 (1984). In Varig Air-
lines, the Supreme Court stated, in reviewing the legislative history
of the Federal Tort Claims Act:

It was believed that claims of the kind embraced by the dis-
cretionary function exception would have been exempted
from the waiver of sovereign immunity by judicial construc-
tion; nevertheless, the specific exception was added to make
clear that the Act was not to be extended into the realm of
the validity of legislation or discretionary administrative
action.

Id. at 810.

And our decisions in Tiffany and Faust v. South Carolina State
Highway Department, 721 F.2d 934 (4th Cir. 1983), both acknowl-

32
edge the separation-of-powers underpinnings of the discretionary
function exception. Although Faust was decided before Varig Air-
lines, Tiffany was decided later, and in Tiffany, we explicitly adopted
the dictum from Varig Airlines. We stated:

The Supreme Court has further recognized Congress' belief
that "claims of the kind embraced by the discretionary func-
tion exception would have been exempted from the waiver
of sovereign immunity by judicial construction." United
States v. S.A. Empresa de Viacao Aerea Rio Grandense
(Varig Airlines), 467 U.S. 797, 810 (1984). It is plain that
the discretionary function exception to tort liability serves
separation of powers principles by "prevent[ing] judicial
`second-guessing' of legislative and administrative deci-
sions grounded in social, economic, and political policy
through the medium of an action in tort." Id. at 814.

Tiffany, 931 F.2d at 276.

I would conclude now, based on the circuit precedents of Faust and
Tiffany, that we should follow the lead of the Supreme Court and join
every other court of appeals to have considered the issue in explicitly
recognizing that "[t]he respect for separation of powers principles
addressed through the discretionary function exception of the FTCA
[Federal Tort Claims Act] has been carried over into suits brought
under DOHSA [the Death on the High Seas Act] and SAA [the Suits
in Admiralty Act]." Tiffany, 931 F.2d at 276.
Accordingly, I would accord the United States in this case sover-
eign immunity and dismiss this suit on that jurisdictional ground.2
____________________________________________________________
2
Because the majority concludes categorically that the discretionary
function exception is inapplicable, it does not address whether the place-
ment of signs marking the restricted area falls within that exception. In
view of the fact that I would recognize the exception, I would address
the issue and conclude that the plaintiffs' claims arise out of the govern-
ment's performance of a discretionary function. See Graves v. United
States, 872 F.2d 133, 137 (6th Cir. 1989) (concluding that choices
regarding whether to post signs near a dam and what type of signs to
post, including assessments of the "cost, feasibility of maintenance and
effectiveness of various types of warnings" brought negligence action
within discretionary function exception).

33
 Despite our decisions in Faust and Tiffany decided in 1983 and
1991, respectively, the majority relies on our decision in Lane v.
United States, 529 F.2d 175, 179 (4th Cir. 1975), which concludes
that "[t]here is no basis upon which we can import the many excep-
tions in the Tort Claims Act into the Suits in Admiralty Act, where
the United States is to be accountable in admiralty whenever a private
person, in similar circumstances, would be." Ante at 3-5. The rule in
Lane, articulated without exception and without any analysis under
separation-of-powers principles, stated that there simply was "no
basis" to recognize a discretionary function exception that bars adju-
dication of claims brought under the Suits in Admiralty Act.

The approach adopted in Lane cannot be reconciled with our
approach taken in our two later cases, Faust and Tiffany. Lane pro-
vided no discretionary function exception, whereas both Faust and
Tiffany recognized the existence of such an exception. It must be
noted that Faust muddied the doctrinal waters by first citing Lane
with approval, 721 F.2d at 937, and then holding — with no explana-
tion of how its holding could be reconciled with Lane — that the
United States would not be subject to liability under the Suits in
Admiralty Act for performance of a discretionary function, id. at 939.
But Tiffany clarified matters even though it stopped short of stating
that Lane had been overruled. The Tiffany ruling recognizes a discre-
tionary function exception applicable to suits brought under the Suits
in Admiralty Act.

The plaintiff in Tiffany was the estate of a civilian pilot who was
killed when an Air Force jet unintentionally collided with the tip of
his plane's wing after the Air Force jet scrambled to intercept his
plane as it entered an air defense identification zone without a flight
plan. The estate brought its action under the Death on the High Seas
Act, 46 U.S.C. app. §§ 761-68, which provides a cause of action in
admiralty for wrongful death occurring on the high seas. The plaintiff
alleged that the Air Force was negligent, relying in part on alleged
violations of regulations promulgated by the Air Force and the North
American Air Defense Command. Id. at 279-82. We rejected the
plaintiff's suit as nonjusticiable, stating that"[i]f we were to hold that
the United States acted negligently in conducting the defense of its
eastern border, we would be interjecting tort law into the realm of
national security and second-guessing judgments with respect to

34
potentially hostile aircraft that are properly left to the other constitu-
ent branches of government." Id. at 275. Underlying this holding was
our determination that "[t]he respect for separation of powers princi-
ples addressed through the discretionary function exception of the
[Federal Tort Claims Act] has been carried over into suits brought
under DOHSA [the Death on the High Seas Act] and SAA [the Suits
in Admiralty Act]." Id. at 276. We explained further that "[o]ur recog-
nition of the constitutional constraints on actions brought under those
acts is not a novel phenomenon." Id. In support of this statement, we
relied on Faust, where "this court refused to review a negligence
claim in admiralty that challenged the Corps of Engineers' discretion-
ary issuance of a permit." Id. at 276-77 (internal citation omitted).
Directly addressing the tension that Faust and Tiffany created with
Lane, we stated in Tiffany that "Faust necessarily narrowed Lane v.
United States and recognized the existence of a discretionary function
exception to the Suits in Admiralty Act in some circumstances." Id.
at 277 n.* (internal citation omitted).

The only conclusion, I respectfully submit, that can be drawn from
a review of Lane, Faust, and Tiffany taken together is that our prece-
dents are inconsistent. Whereas Lane categorically rejected any dis-
cretionary function exception to the Suits in Admiralty Act, Faust
appeared to apply such an exception, and Tiffany explicitly did so.
Faust and Tiffany apparently deviated from the exceptionless rule of
Lane by recognizing "the existence of a discretionary function excep-
tion to the Suits in Admiralty Act in some circumstances."3
____________________________________________________________
3
The majority seeks to distinguish Tiffany on its facts even though Tif-
fany involved a claim asserted against the United States on the basis of
the waiver of sovereign immunity in the Suits in Admiralty Act. But in
its attempt, the majority inaccurately observes that "the significance of
the military setting required the result quite independently of the discre-
tionary function exception." Ante 6 (emphasis added). Yet, in Tiffany we
in fact relied on the discretionary function exception to conclude that the
case was nonjusticiable. See Tiffany, 931 F.2d at 275 ("We first proceed
to address the relationship between separation of powers principles and
the relevant federal statutes"); id. at 276 ("The respect for separation of
powers principles addressed through the discretionary function exception
of the [Federal Tort Claims Act] has been carried over into suits brought
under [the Death on the High Seas Act] and [the Suits in Admiralty Act].
Our recognition of the constitutional constraints on actions brought under
those acts is not a novel phenomenon").

35
 Notwithstanding this history, the majority asserts that we are bound
by Lane, citing authority in support of the proposition that one panel
cannot overrule another panel. See ante at 6-7. That rule, however, is
of no help to the majority in the present case because its application
of the rule to ignore later panel decisions that deviate from an earlier
one amounts to a violation of the very rule it seeks to apply. In other
words, the majority's application of the early exceptionless approach
adopted by this court in Lane requires rejection of the later "some cir-
cumstances" approach adopted by this court in Faust and Tiffany, and
the majority thereby violates the rule that one panel cannot overrule
prior decisions of the court. By ignoring the later approach and apply-
ing instead an earlier approach that is inconsistent with the later
approach, the majority, in effect, overrules two cases adopting the
later approach, treating these later cases as ultra vires or otherwise
illegitimate. But the majority cannot in this case derive from the rule
against one panel overruling another the authority to treat Faust and
Tiffany as ultra vires. The most that the majority can say is that the
latter two opinions violated a prudential decisionmaking rule adopted
by this court. But it does not follow that they were therefore decided
beyond the power of the court. They remain court precedents.4

When a panel of this court decides a case, that panel decision
decides the case for the circuit because the panel is given authority
to make decisions for the circuit. See 28 U.S.C. § 46(c) (providing
that "[c]ases and controversies shall be heard and determined by a
court or panel of not more than three judges . . . unless a hearing or
____________________________________________________________
4
Observing that Lane "rejected, without qualification, the argument
that the [Suits in Admiralty Act] includes an implied discretionary func-
tion exception," ante at 6 (emphasis added), the majority determines to
reject application of both Faust and Tiffany, which recognize such an
exception "in some circumstances." To respond to my dissent, the major-
ity relies on an earlier dissenting opinion of our court to justify its role
of determining whether panels of our court in earlier cases followed our
law and then rejects those cases that it concludes did not, finding them
somehow illegitimate. But this is not a role that the majority can play
without violating the very rule that it employs to police other cases.
Devaluation of two circuit precedents — Faust and Tiffany — that were
surely decided under Article III power conferred on the panel in those
cases by Congress, see 28 U.S.C. § 46(b), rides "roughshod" over those
precedents. See ante at 6.

36
rehearing before the court in banc is ordered by a majority of the cir-
cuit judges of the circuit who are in regular active service"). It must
follow that a panel has the power to speak for the circuit in modifying
or even overruling another panel's decision. Because a panel has that
power, its decision modifying or overruling another panel decision is
not ultra vires. Such an exercise of power means simply that the sec-
ond panel, expressing the law for the circuit, changed the circuit's
mind on the point. Only our prudential decisionmaking rule suggests
otherwise, but that rule does not go to judicial power.

While I do not suggest any retreat from our prudential decision-
making rule that one panel cannot overrule another, because that is
important to orderly decisionmaking by the circuit as a whole, I only
note that the rule is not a descriptive observation about the extent of
the panel's power to decide cases and make law for the circuit. A
more precise formulation of our prudential decisionmaking rule
would be that one panel ought not to overrule another panel, not that
one panel lacks judicial power to overrule the decision of another
panel. Accordingly, the majority cannot ignore that Faust and Tiffany
made law that applies in this circuit.

When we conclude, as we must here, that several precedents of the
circuit are inconsistent with each other, we must resolve the inconsis-
tency by applying the most appropriate legal principles then before
the court. See Under Seal v. Under Seal, 326 F.3d 479, 484 (4th Cir.
2003) ("[H]ere, where we confront two different rules governing the
same question, we are left no option but to choose from between our
differing precedents"). But see Booth v. Maryland, 327 F.3d 377, 382-
83 (4th Cir. 2003) (declining to follow the rule applied in a later case
and instead following the rule articulated in earlier cases on the
ground that a panel of this circuit cannot overrule a prior panel). In
resolving inconsistent precedents, the rule against one panel overrul-
ing another simply does not itself resolve what ought to be done. Fur-
ther, it would make scant sense to derive from that rule a formula for
deciding which of inconsistent precedents to follow based only on the
respective dates of decision. Always following the earlier case would
entail always overruling the later case, in violation of the rule, and
would bind the court to a decision without even the opportunity to
consider factors either noted for the first time in later cases or relevant
currently. And always following the later case would trample on

37
whatever vitality of the earlier case may have survived. When we are
confronted with ambiguities and inconsistencies in our precedents, we
must, I submit, put aside chronology and instead decide substantively
how to resolve the ambiguity in a manner that best comports with all
of the relevant legal principles.

In our system of applying precedents, the general rule is, of course,
that later opinions modify and control earlier opinions. Yet this gen-
eral rule is precisely opposite of that advanced by the majority, that
"the earlier opinion remains the controlling law in the circuit with
respect to matters as to which the two opinions unquestionably con-
flict." Ante at 6 (quoting Harter v. Vernon, 101 F.3d 334, 343 (4th
Cir. 1996) (Luttig, J., dissenting from denial of rehearing en banc)).

The majority adduces no binding authority in contravention of the
argument from first principles which concludes that Faust and Tiffany
remain court precedents that must be dealt with by application, dis-
tinction, or overruling. The majority neither purports to overrule
Faust and Tiffany (for that would violate the rule that it trumpets) nor
asserts that Faust and Tiffany were ultra vires. The majority's deter-
mination to ignore Faust and Tiffany appears to be an enforcement
mechanism for the rule against one panel overruling another. Unless
the majority adopts the position that later inconsistent opinions are
ultra vires, however, it must concede that the enforcement mechanism
itself requires violation of the very rule of decision making that it is
designed to enforce. Labeling the enforcement mechanism as a "nec-
essary corollary" does not change the reality of what application of
the "corollary" accomplishes, which is the overruling of later opin-
ions.

When we review the relevant legal principles in this case, there can
be little dispute that the better approach to adopt in this case would
be to recognize a discretionary function exception applicable to
claims brought under the Suits in Admiralty Act. This appears to be
directed by the intervening Supreme Court dictum in Varig Airlines
and is the approach adopted by the ten other circuits to have
addressed the issue, as well as two decisions in our circuit, Faust and
Tiffany.

I regret that the majority has failed to take the opportunity pre-
sented in the circumstances of this case to squarely and substantively

38
address the inconsistency produced by Lane, Faust, and Tiffany and
to bring our jurisprudence in line with the ten other circuits to have
addressed the issue, as well as the dictum given by the Supreme Court
in Varig Airlines. But it has failed to do so based on a misunderstand-
ing, I respectfully submit, as to the nature of our prudential rule of
decisionmaking that directs that one panel should not overrule
another.

II

On the issue of whether the United States has duties (1) "to con-
spicuously mark the restricted area" (drawn from regulation 33 C.F.R.
§ 207.300(s)) and (2) "to warn about the dam" (drawn by analogy
from the common law relating to duties of land owners), I also dis-
sent. Neither duty up until now has been recognized by the Supreme
Court or in this circuit.

First, the majority reads more into 33 C.F.R. § 207.300(s) than the
language of the regulation states or implies. That regulation provides:

Restricted areas at locks and dams. All waters immediately
above and below each dam, as posted by the respective Dis-
trict Engineers, are hereby designated as restricted areas. No
vessel or other floating craft shall enter any such restricted
area at any time. The limits of the restricted areas at each
dam will be determined by the responsible District Engineer
and marke[d] by signs and/or flashing red lights installed in
conspicuous and appropriate places.

33 C.F.R. § 207.300(s). The majority holds that this is a safety regula-
tion; that the jet-skiers in this case are within the class of persons pro-
tected by the regulation; and that the harm suffered by the jet-skiers
is the type of harm the regulation was intended to prevent. Ante at 10-
11.

With due respect, the language of the regulation does not support
these conclusions. "Safety" is nowhere to be found in the regulation,
either expressed or implied. The regulation authorizes District Engi-
neers to designate areas around locks and dams as "restricted" and to

39
prohibit boats from entering the area. It states nothing more than how
the restricted area shall be designated and made manifest by the Dis-
trict Engineer. While the regulation does not state the purpose of des-
ignating the areas around locks and dams as restricted, it cannot be
inferred that the purpose is to give warning of dangers. It is indeed
more likely a regulation to protect the government by designating
areas to keep people from government property in order to prohibit
interference with government operations, or to protect government
property from damage or vandalism, or to protect the government
from increased risks of liability that exist in the restricted area. What-
ever the purpose, however, the regulation's language does not support
the conclusion that restricted areas are intended to protect the safety
of the public. To read the regulation to impose a duty running from
the government to the public requires reading much more into this
provision than appears. Indeed, a straightforward reading would sug-
gest that if any duty is created by the regulation at all, it would run
from the public to the government, imposing on the public a duty (1)
not to enter government-restricted areas, (2) not to interfere with gov-
ernment operations, or (3) not to damage or vandalize government
property.

With respect to the new maritime duty that the majority imposes
on the government to warn the public of danger from a government-
owned dam in navigable waters, the majority's holding is irreconcil-
able with the holdings of our decisions in Faust v. South Carolina
State Highway Department, 721 F.2d 934 (4th Cir. 1983), and Magno
v. Corros, 630 F.2d 224 (4th Cir. 1980).

In Faust, we decided that the issuance of a permit to operate a ferry
was an unreviewable discretionary function and therefore dismissed
the case against the United States. But we also rejected any general
tort theory of government liability in that case, stating that "[w]e are
aware of no authority and counsel has cited none which holds that the
United States may be held liable on a common law tort theory of fail-
ure to maintain safe conditions on navigable waters which it `owns'."
Faust, 721 F.2d at 939.

The majority acknowledges this statement from Faust, but asserts
that the duty that it imposes is consistent with Faust because "[t]he
duty in this case springs not from the government's capacity as the

40
`owner' of all navigable waterways, but from its capacity as the
owner and operator of an artificial obstruction across one particular
navigable waterway." Ante at 21-22. This distinction is not entirely
persuasive because Faust involved — like here — an obstruction
across a navigable waterway, albeit one that was authorized by the
federal government rather than erected by the federal government.

But even if this distinction of Faust had substance, the majority's
imposition of a duty on the government as "owner and operator of an
artificial obstruction across one particular navigable waterway"
directly conflicts with Magno, an authority that the majority acknowl-
edges only in passing and for the purpose of trying to distinguish it,
even though it is the primary basis for our dismissal of the general tort
theory of liability in the very section of Faust that the majority
quotes.

In Magno, we held that the United States was not liable for failing
adequately to warn about an obstruction built and maintained by the
United States. 630 F.2d at 228. In that case, the plaintiff died of inju-
ries received when the motorboat that he was operating "collided with
a sheet steel dike built and maintained by the United States." Id. at
225. The dike was a sheet steel pile structure extending 1,100 feet in
length and protruding approximately two feet above the water, which
the district court found was not visible to an approaching boater. Id.
at 226. The only marking on the dike was a blinking white light at one
end. Id. The district court concluded that this single marking at only
one end was gross negligence and held the United States responsible.
Id. We reversed, holding that the "[p]laintiff here has presented us
with no authority and has introduced no evidence that would impose
upon anyone a duty to mark the dike any more clearly than the United
States did in this case." Id. at 228.

The duty imposed by the majority in the present case is indistin-
guishable from the duty that we determined to be nonexistent in
Magno. If the government had no duty to place anything more than
a single blinking light at the end of an 1,100 foot steel structure that
was not visible to an approaching boater, as we held in Magno, it
would seem that the majority in this case would not be entitled to con-
clude that the government has a duty to supplement the multiple signs
that marked the restricted area about the locks and dam on the Ohio

41
River. It is no answer to assert that "[w]hether the signs in place
around the dam were sufficient to satisfy the government's duty . . .
[is a] factual issue[ ] that must be resolved through further proceed-
ings before the district court." Ante at 14 n.6. For as the majority rec-
ognizes, "the question before this court is the existence vel non of a
duty to warn on the part of the government," ante at 27 n.14, and the
holding of Magno in the negative was rendered as a matter of law, see
630 F.2d at 228 ("To find liability there must first be found a duty
violated. . . . Plaintiff here has presented us with no authority and has
introduced no evidence that would impose upon anyone a duty to
mark the dike any more clearly than the United States did in this case.
We decline to impose this even higher duty on the government. Thus,
Lane is inapposite for it requires that a duty be found in the first
instance").

III

In sum, based on our decisions in Faust and Tiffany, I would
accord the United States sovereign immunity from claims based on its
discretionary actions brought under the Suits in Admiralty Act, as has
been done by every other circuit to have considered the issue. And in
any event, I would not find the existence of the two new duties cre-
ated by the majority because 33 C.F.R. § 207.300(s) does not support
the first and our decisions in Faust and Magno reject the second.
Accordingly, I would affirm the judgment of the district court even
in the absence of sovereign immunity.

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