PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 22-3132 & 22-3228
_______________
In re Complaint of ADRIAN AVENA, as Owner, and AA
COMMERCIAL, LLC, as Owner Pro Hac Vice, of the
Fishing Vessel CONCH’RD, for Exoneration from or
Limitation of Liability
KIMBERLY WOLFE, as Personal Representative of the
Estate of Aaron Greenberg, and on behalf of K.G., over
whom Kimberly Wolfe is the Appointed Co-Guardian, and
who is the Surviving Minor Child of the Decedent, Aaron
Greenberg
v.
DANIEL J. AVENA; UNITED STATES OF AMERICA;
CM HAMMAR AB; and REVERE SURVIVAL, INC.
Kimberly Wolfe,
Appellant in No. 22-3132
Adrian Avena, and AA Commercial,
Appellants in No. 22-3228
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:21-cv-00515)
District Judge: Honorable Karen M. Williams
_______________
Submitted Under Third Circuit L.A.R. 34.1(a):
December 12, 2023
_______________
Before: BIBAS, PORTER, and FREEMAN
Circuit Judges.
(Filed: February 6, 2024)
______________
Mary E. Reeves
Reeves McEwing LLP
1004 S. Front Street
Philadelphia, PA 19147
Counsel for Plaintiff-Appellants in No. 22-3228.
Paul T. Hofmann
Hofmann & Schweitzer LLP
1130 Route 202 South
Suite A7
Raritan, NJ 08869
Counsel for Third-Party Appellant in No. 22-3132.
Matthew R. Hyde
United States Department of Justice
Civil Division
2
Torts Branch Aviation, Space & Admiralty Litigation
175 N. Street NE
Suite 8.103
Washington, DC 20002
Bradley J. Preamble
United States Department of Justice Torts Branch,
Civil Division
P.O. Box 14271
Washington, DC 20044
Counsel for the United States of America.
Jamele A. Hamad
Marshall Dennehey Warner Coleman & Goggin
Casualty Department
21st Floor
88 Pine Street
Wall Street Plaza, 21st Floor
New York, NY 10005
Counsel for Third-Party Appellee.
Michael L. Testa
Testa Heck Testa & White
424 W Landis Avenue
Vineland, NJ 08360
Counsel for Third-Party Appellee.
______________
OPINION OF THE COURT
______________
3
PORTER, Circuit Judge.
Adrian Avena and Aaron Greenberg were fishing off
the coast of New Jersey when their boat partially capsized.
Tragically, Greenberg drowned before the U.S. Coast Guard or
others arrived to their rescue. Greenberg’s estate (Estate),
Avena, and AA Commercial, LLC, assert maritime tort claims
against the United States. They allege that the Coast Guard
acted negligently in carrying out a search-and-rescue mission,
and they assert that the government has waived its sovereign
immunity under the Suits in Admiralty Act (SAA). The District
Court found that it lacked subject-matter jurisdiction because
the United States was immune from suit, and it dismissed the
case with prejudice. We will affirm.
I
Avena owned a commercial fishing vessel named the
Conch’rd. Through his company AA Commercial, Avena used
the Conch’rd to fish for conch. In December 2020, Avena and
his hired deckhand, Greenberg, were fishing 12 miles off the
coast of Cape May, New Jersey, when the Conch’rd partially
capsized at about 1:30 p.m. Avena and Greenberg were thrown
into the freezing waters.
Aboard the Conch’rd was an Emergency Position
Indicating Radio Beacon (EPIRB)—a device that transmits
messages to satellites connected to a search-and-rescue
tracking network. Per federal mandate, fishing operators must
register their EPIRB with the National Oceanic and
Atmospheric Administration and state on their registration the
owner and name of the vessel. 47 C.F.R. § 80.1061(e)–(f).
4
Avena’s EPIRB registration expired in 2017. And critically,
the EPIRB information aboard the Conch’rd was registered to
a different vessel that his father, Daniel, owned named the Gold
Rush II.
At 2:07 p.m., the Coast Guard received a distress signal
from the EPIRB on the Conch’rd. But because Avena’s
EPIRB-registered information was inaccurate, the signal
informed the Coast Guard that the Gold Rush II was in distress.
At 2:09 p.m., the Coast Guard broadcasted an Urgent Marine
Information Broadcast (UMIB) to boats in the area stating that
the Gold Rush II was in distress.
Also around 2:09 p.m., the Coast Guard called Daniel
to ask about the signal. The parties agree that, during this call,
Daniel informed the Coast Guard that the signal was not a false
alarm and that the EPIRB was on Avena’s vessel. But the
parties dispute whether Daniel also corrected the Coast
Guard’s misunderstanding about the name of the vessel in
distress. Following the phone call with Daniel, the Coast Guard
kept broadcasting a UMIB stating that the Gold Rush II was in
distress.
At 2:36 p.m., the Coast Guard called Daniel a second
time. There is no dispute that this time Daniel told the Coast
Guard that the name of Avena’s vessel was the Conch’rd. The
Coast Guard then promptly corrected its UMIB. At 2:48 p.m.,
the Coast Guard learned of the exact location of the EPIRB
signal. It then called Daniel a final time to convey this
information.
At 2:53 p.m., one of the Coast Guard’s boats set off for
the location of the signal. Soon after, the Coast Guard also sent
5
a “ready waiting” helicopter stationed in Atlantic City, New
Jersey to the location of the signal. J.A. 95 ¶ 51. But it did not
divert another helicopter that was in the air and not far from the
location of the signal conducting unrelated law enforcement
activities. Daniel also sent some of his acquaintances in a sport
fishing boat to the location. That boat and the Coast Guard’s
helicopter arrived on the scene at 3:35 p.m. and 3:36 p.m.,
respectively. Daniel’s acquaintances pulled Avena from the
water, but Greenberg had drowned nearly 20 minutes earlier.
The Coast Guard’s vessel did not arrive until 4:00 p.m.
The Estate, Avena, and AA Commercial filed maritime
tort claims against the United States,1 alleging that it
negligently undertook a search-and-rescue mission. First, they
claim that “if th[e] Coast Guard . . . was told” during its first
call with Daniel that the EPIRB “was emergency signaling . . .
1
Avena and AA Commercial first filed a complaint
under the Limitation of Liability Act seeking exoneration from
or limitation of their liability for the death of Greenberg. The
Estate then filed a claim against Avena and AA Commercial,
alleging wrongful death under the Jones Act and general
maritime law. Subsequently, the Estate filed a third-party
complaint against Daniel and the United States. And Avena
and AA Commercial filed a crossclaim against the United
States, incorporating by reference the Estate’s allegations
against the United States. The Estate’s, Avena’s, and AA
Commercial’s allegations against the United States are the only
ones at issue on appeal. So for simplicity, we will refer to the
Estate, Avena, and AA Commercial as “Plaintiffs,” and their
complaints as a singular “third-party complaint.”
6
[from] the Conch’rd and not the Gold Rush II,” then the Coast
Guard’s failure to change the UMIB with updated information
was negligent. J.A. 100–01 ¶ 75. Second, they allege that the
Coast Guard was negligent in deploying its helicopter in
Atlantic City instead of “direct[ing]” another helicopter
already in the air carrying out unrelated “law enforcement
activities.” J.A. 101 ¶ 77; J.A. 93–94 ¶ 43.
The District Court granted the United States’ Rule
12(b)(1) motion, finding that the District Court lacked subject-
matter jurisdiction because the United States was immune from
suit. The District Court determined that the Plaintiffs’ claims
fell outside the government’s waiver of sovereign immunity in
the SAA because they could not maintain a negligence action
against a similarly situated private person. 46 U.S.C.
§ 30903(a).2 The District Court then denied the Estate’s motion
for leave to amend its third-party complaint. Plaintiffs
appealed.
II
Plaintiffs contend that the District Court had subject-
matter jurisdiction over their third-party complaint against the
United States under the SAA. Federal courts do not have
2
The District Court also addressed the Estate’s and
Avena’s invocation of the United States’ waiver of its
sovereign immunity in the Public Vessels Act (PVA). 46
U.S.C. § 31102(a) (waiving sovereign immunity for, inter alia,
“damages caused by a public vessel of the United States”). But
no party relies on the PVA on appeal, so we limit our
discussion to the SAA.
7
subject-matter jurisdiction over suits against the United States
unless Congress waived sovereign immunity. United States v.
Craig, 694 F.3d 509, 511 (3d Cir. 2012). The District Court
had the obligation and power to determine its subject-matter
jurisdiction. Nuveen Mun. Tr. ex rel. Nuveen High Yield Mun.
Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 293
(3d Cir. 2012).
We have jurisdiction under 28 U.S.C. § 1292(a)(3)
because the appeal is interlocutory and the District Court’s
order determined the rights and liabilities of parties to an
admiralty case. See Bankers Tr. Co. v. Bethlehem Steel Corp.,
761 F.2d 943, 945 n.1 (3d Cir. 1985) (explaining that, under
§ 1292(a)(3), an appeal is interlocutory when “the rights and
liabilities of all of the parties to th[e] [admiralty] litigation have
not been determined”). “[Our] standard of review is plenary
where the District Court dismisses for lack of subject matter
jurisdiction.” Gould Elecs. Inc. v. United States, 220 F.3d 169,
176 (3d Cir. 2000). Like the District Court, we construe the
United States’ Rule 12(b)(1) motion as a facial challenge to the
District Court’s subject-matter jurisdiction. See id. (explaining
the differences between a facial and factual challenge). Thus,
“we treat the allegations of the complaint as true and afford the
plaintiff the favorable inferences to be drawn from the
complaint.” NE Hub Partners, L.P. v. CNG Transmission
Corp., 239 F.3d 333, 341 (3d Cir. 2001).
III
A
8
Through the SAA,3 Congress waived the government’s
sovereign immunity for “civil action[s] in admiralty” so long
as the action “could be maintained” against a “private person”
in like circumstances. 46 U.S.C. § 30903(a). The SAA itself
does not “create [a] cause[] of action against the United
States.” O’Connell v. Interocean Mgmt. Corp., 90 F.3d 82, 85
(3d Cir. 1996) (internal quotation marks and quoted source
omitted). Instead, “a plaintiff must show that the United States
would be liable under maritime tort law.” Sagan v. United
States, 342 F.3d 493, 497–98 (6th Cir. 2003). “In the arena of
tort law, general maritime law mirrors many principles of
traditional negligence law.” Turner v. United States, 736 F.3d
274, 280 (4th Cir. 2013). So when plaintiffs allege, as here, that
the Coast Guard acted negligently, they must plead that it had
an identifiable duty to act, breached that duty, and that the
breach proximately harmed them. See id.; see also Patentas v.
United States, 687 F.2d 707, 714 (3d Cir. 1982).
The Coast Guard does not have an affirmative duty to
undertake any rescue operations. See 14 U.S.C. § 521
(authorizing the Coast Guard to conduct rescue operations, but
not imposing any affirmative duty to do so). But “once the
Coast Guard undertakes a rescue operation, it must act with
reasonable care.” Sagan, 342 F.3d at 498 (citing Patentas). “Its
actions are judged according to the so-called ‘Good Samaritan’
doctrine.” Id. Under that doctrine, the Coast Guard will be
liable for any failure to exercise reasonable care if it
“increase[d] the risk of [physical] harm” or “[physical] harm
[was] suffered because of [the person in need of rescue’s]
3
46 U.S.C. § 30901 et seq.
9
reliance upon the undertaking.” Patentas, 687 F.2d at 714
(quoting Restatement (Second) of Torts § 323 (Am. L. Inst.
1965)). Plaintiffs rely solely on the “increased the risk of
physical harm” theory of liability.
1
The District Court held that the Plaintiffs could not
sustain a negligence action because the Coast Guard’s two
purported acts of negligence occurred before the Coast Guard
began a search-and-rescue mission. So the Coast Guard could
not have breached because it did not yet have a duty to act
reasonably. We disagree.
We have not previously addressed when a search-and-
rescue mission begins. But the Fourth Circuit has held that
whether there was a search-and-rescue mission is a question of
fact specific to each case. Furka v. Great Lakes Dredge &
Dock Co., 755 F.2d 1085, 1088 (4th Cir. 1985) (“Whether or
not there was a rescue attempt is, of course, a question for the
jury.”). We agree with the Fourth Circuit. Whether and when
the Coast Guard has initiated a search-and-rescue mission is
fact laden and evades a rule as a matter of law. For example,
the question may turn on facts such as the Coast Guard’s
representations to interested parties while the emergency
unfolds, or the content of the Coast Guard’s broadcasts sent out
to nearby ships.
Therefore, on a motion to dismiss, the District Court
erred in ruling that the Coast Guard did not have a duty to act
reasonably before its alleged breach. On the United States’
Rule 12(b)(1) facial challenge, we must construe the Plaintiffs’
allegations as true and ask whether it was plausible that the
10
Coast Guard had a duty to act reasonably before it breached.
See NE Hub Partners, 239 F.3d at 341 (stating that we must
accept a complaint’s allegations as true); Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“[A] complaint must contain sufficient
factual matter . . . to state a claim to relief that is plausible on
its face.”) (internal quotation marks and quoted source
omitted). And Plaintiffs’ third-party complaint satisfies this
standard. The Coast Guard’s first alleged breach occurred
between 2:09 p.m. and 2:36 p.m. when it broadcasted a UMIB
containing the wrong information about the capsized vessel. It
is plausible that the Coast Guard launched a search-and-rescue
mission before that moment when it spoke to Daniel about the
emergency around 2:09 p.m.
2
Although the Plaintiffs plausibly plead that the Coast
Guard had a duty to act reasonably before its alleged breaches,
Plaintiffs fail to properly plead how the Coast Guard’s failure
to exercise reasonable care “increase[d] the risk of [physical]
harm” to Greenberg. Patentas, 687 F.2d at 714 (quoting
Restatement (Second) of Torts § 323 (Am. L. Inst. 1965)). To
meet this standard, Plaintiffs must show how “[t]he risk [wa]s
increased over what it would have been had the defendant not
engaged in the undertaking at all”—not “over what it would
have been if the defendant had not been negligent.” Thames
Shipyard & Repair Co. v. United States, 350 F.3d 247, 261 (1st
Cir. 2003) (internal quotation marks and quoted source
omitted).
Patentas supports this understanding of the Good
Samaritan doctrine. There, plaintiffs alleged that the Coast
Guard acted negligently in inspecting a ship that exploded
11
hours later. Patentas, 687 F.2d at 709–10. We held the
plaintiffs failed to show how the Coast Guard’s conduct
increased the risk of harm because its purported breach did not
cause any “physical change to the environment or some other
material alteration of circumstances.” Id. at 717 (citation
omitted). That is, had the Coast Guard done nothing, the ship
still would have exploded. See id. at 716–17. So the Coast
Guard could not have increased the risk of an explosion.
Accepting Plaintiffs’ allegations as true, Plaintiffs fail
to meet this standard. For the first breach, they allege that the
Coast Guard negligently failed to update the UMIB with the
correct name of the vessel after speaking with Daniel for the
first time. They contend that, had the Coast Guard not erred,
“[f]isherman working on the water near [the] Conch’rd’s
location . . . would have gone to the aid of the vessel[.]” J.A.
94 ¶ 49. This allegation fails as a matter of law because it
compares the Coast Guard’s breach to what would have
happened if the Coast Guard had broadcasted the correct name
of the vessel. Under the Good Samaritan doctrine, we are
required to compare the Coast Guard’s alleged breach to what
would have happened if the Coast Guard did nothing. And had
the Coast Guard done nothing, fisherman still would not have
been looking for the Conch’rd.
Plaintiffs’ second alleged breach also fails. They assert
that there was “a Coast Guard helicopter . . . working over the
Atlantic Ocean not far from the site of the capsized vessel
performing law enforcement activities.” J.A. 93 ¶ 43. They
contend that the Coast Guard should have directed it to the
scene because it would have arrived more quickly than the
grounded helicopter. They also contend that the Coast Guard
should have been ready to deploy unspecified “other assets”
12
promptly when it received the precise coordinates from the
EPIRB. J.A. 101–02 ¶¶ 77–78. These allegations fail because
had the Coast Guard not engaged in the undertaking at all, no
helicopter or other assets would have arrived on the scene.
Thus, for either breach, the Coast Guard did not
“increase the risk of physical harm” under the Good Samaritan
doctrine. Accordingly, Plaintiffs could not sustain an action
against a private person in like circumstances. So Plaintiffs’
claims fall outside the government’s waiver of sovereign
immunity under the SAA, and the United States is immune
from suit.4
B
The Estate moved for leave to amend its third-party
complaint to cure any jurisdictional defects and attached a
proposed Second Amended Complaint. But the proposed
Second Amended Complaint demonstrates that amendment
would be futile. See Shane v. Fauver, 213 F.3d 113, 115 (3d
Cir. 2000) (stating that, once a party no longer has a right to
amend as a matter of course, the court should freely give leave
to amend unless it would be futile). That is because the Estate
has not identified any set of facts that could demonstrate how
the Coast Guard’s purported breaches “increased the risk of
4
The District Court determined that the United States
was also immune from suit under the discretionary-function
exception to the waiver of sovereign immunity. Because we
agree with the District Court that Plaintiffs’ claims fall outside
the government’s waiver of sovereign immunity in the SAA,
we decline to address the discretionary-function exception.
13
physical harm” to Greenberg. The District Court thus properly
denied the Estate’s motion for leave to amend.
* * *
The District Court lacked subject-matter jurisdiction
because the United States is immune from suit. We will
therefore affirm the District Court’s order dismissing the case
against the United States with prejudice.
14