United States Court of Appeals
For the First Circuit
No. 02-1454
LIMAR SHIPPING LTD. AND OMI CORP.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Thomas E. Clinton, with whom Robert E. Collins and Clinton &
Muzyka, P.C., were on brief, for appellants.
Michelle T. Delemarre, Admiralty Trial Attorney, with whom
Robert D. McCallum, Jr., Assistant Attorney General, and Michael J.
Sullivan, United States Attorney, were on brief, for appellee.
March 25, 2003
TORRUELLA, Circuit Judge. Limar Shipping Ltd. ("Limar")
and OMI Corporation ("OMI"), plaintiffs-appellants, appeal a grant
of summary judgment in favor of the defendant-appellee the United
States, in a case alleging, inter alia, that the United States was
negligent and/or breached warranties in the surveying of the Boston
Harbor and the dissemination of nautical charts that failed to
accurately depict the depth of the harbor. Plaintiffs claim that
the erroneous chart resulted in the grounding of and subsequent
damage to their vessel, the M/T Limar. Plaintiffs raise two main
issues on appeal, namely, that the district court erred in: (1)
finding that there is an implied discretionary function exemption
in the Suits in Admiralty Act; and (2) applying the discretionary
function exemption as it did to the facts of this case. After
careful review, we affirm the district court’s ruling for the
reasons stated below.
I. Facts
On the morning of March 11, 1996, the steel hulled
tanker vessel M/T Limar, owned by Limar and operated by OMI,
approached Boston, Massachusetts. Under Massachusetts law, foreign
vessels the size of the M/T Limar must employ a harbor pilot when
entering Boston Harbor.1 See Mass. Gen. Laws ch. 103, §§ 21, 28.
Accordingly, the M/T Limar took aboard a harbor pilot, Lawrence
1
The M/T Limar measured over 545 feet in length and had a beam of
approximately ninety feet. The M/T Limar’s draft was thirty-three
feet, nine inches.
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Cannon, who undertook navigation of the ship through the Boston
Harbor shipping channel.
The main shipping route in the Boston Harbor includes
side-by-side inbound and outbound channels, which are maintained by
the Army Corps of Engineers ("Army Corps"). Congress allocates
funds to maintain federal shipping channels at certain authorized
depths and widths. In 1996, the Army Corps was authorized to
dredge the Boston Harbor inbound channel to a depth of thirty-five
feet below Mean Low Water, and was also authorized to maintain the
outbound channel at a depth of not more than forty feet. Both of
these channels could be maintained up to 600 feet wide.
The Army Corps conducts periodic surveys of the shipping
channels to determine their actual depths, as opposed to the
authorized depths, and to discover any unexpected debris or
shoaling. The results of these surveys are made known to the
public through Results of Survey Reports and the Coast Guard's
Local Notice to Mariners publications. Relevant to this matter,
the last periodic survey of the disputed area of the inbound
channel was completed in 1990. The results of the 1990 Boston
Harbor survey appeared in a Results of Survey Report dated July 23,
1990, and they were published in the First Coast Guard District’s
Local Notice to Mariners, Number 31, on August 1, 1990. They also
appeared in a book entitled The Port of Boston, Massachusetts, Port
Series No. 3, issued in 1994. In each of these sources, the 1990
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survey reported the controlling depth of the channel, which is the
shallowest point at any place as compared to Mean Low Water.
Cannon, a harbor pilot with twenty-four years of
experience at the time of the grounding, knew these survey results,
and did not bring a nautical chart with him. Although he had never
been aboard the M/T Limar, he familiarized himself with the ship,
and asked the M/T Limar’s crew for the draft of the ship before
directing the ship through Boston Harbor.
While Cannon piloted the vessel, the M/T Limar’s crew
observed the movement of the ship. Third Mate Rodolfo Arcilla took
periodic position fixes of the vessel’s location and plotted them
on the M/T Limar’s copy of Nautical Chart 13272, 43d Edition, dated
June 28, 1995. The National Oceanic and Atmospheric Administration
("NOAA") created this chart using information from several sources,
including the 1990 Army Corps survey mentioned above.2
At 8:50 a.m., the M/T Limar scraped the Boston Harbor
floor near Red Nunn Buoy No. 8, at approximately 42 20.494' N and
71 00.505' W. According to the nautical chart produced by NOAA,
the water depths nearest to the position of the groundings are
thirty-five and thirty-six feet, which allegedly should have
accommodated the M/T Limar's thirty-three feet, nine inch draft.
2
The nautical chart contains a warning that states "[t]he prudent
mariner will not rely solely on any single aid to navigation." In
addition, the chart includes several cautions, including one that
the "[t]emporary changes or defects in aids to navigation are not
indicated on this chart. See Notice to Mariners."
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The vessel grounded on the starboard (right) side forebody, but was
still able to reach its berth. However, the damage to the hull and
the ensuing steps taken to prevent oil pollution are alleged to
have cost Limar and OMI in excess of $800,000.
Limar and OMI sued the government under the Suits in
Admiralty Act ("SAA"), 46 U.S.C. Appx. §§ 741-52 (1976), alleging
that the misrepresentation of the water depth on the chart caused
the damage to the M/T Limar. The district court granted summary
judgment in favor of the United States, finding that the
discretionary function exception applied and that the United States
was entitled to dismissal of the complaint on grounds of sovereign
immunity.
II. Standard of Review
This Court reviews the grant of a summary judgment motion
de novo, considering all facts in the light most favorable to the
non-moving party, in this case the plaintiffs. Gu v. Boston Police
Dept., et al., 312 F.3d 6, 10 (1st Cir. 2002).
III. Discussion
This case involves allegations of negligence on the part
of the United States in the production and dissemination of a
nautical chart. In order to avoid confusion, we highlight several
key facts. The Army Corps conducted a survey of the Boston Harbor,
which was later used by NOAA to create a nautical chart of the
harbor. The plaintiffs argue that the chart failed to accurately
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depict the depth of the harbor, and the M/T Limar's grounding was
a result of this inaccuracy. Instead of following what the
plaintiffs allege are mandatory standards, the Army Corps followed
its own guidelines in conducting the survey. The plaintiffs contend
that the chart's inaccuracy could have been prevented if NOAA had
based the chart on a survey that was conducted in accordance with
NOAA's standards for hydrographic surveys. Specifically, the
plaintiffs argue that if the nautical chart had been based on a
survey conducted in compliance with NOAA guidelines, it would have
been more accurate because those guidelines require measurements on
tighter sounding intervals and line spacing than those called for
by the Army Corps guidelines. According to the plaintiffs, the
Army Corps should have followed the NOAA requirements in conducting
its initial survey because it knew that NOAA would rely on the
survey in creating nautical charts. NOAA did in fact use the Army
Corps survey, in conjunction with other sources, to create the
chart. Thus, plaintiffs allege two grounds of liability: (1) the
Army Corps decision to follow its own guidelines rather than the
NOAA guidelines in conducting the survey; and (2) NOAA's decision
to create a chart based on that survey.
Plaintiffs urge us to hold that the United States has
completely waived sovereign immunity in the SAA, and consequently
that no discretionary function exception exists in this context.
In the event we find that there is such an exception, plaintiffs
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argue that the exception should not apply to the decisions made by
the Army Corps and NOAA, and that the United States should be
subject to suit, because the decisions were non-discretionary. The
final argument offered by plaintiffs is that even if NOAA's
decision to rely on the Army Corps survey was a discretionary
decision, once that decision was made, the government entity had a
duty of care to create the chart accurately. Plaintiffs argue that
since mariners regularly rely on such charts for navigation,
misrepresentation as to the depth of the harbor is grounds for
liability.
In response, defendants argue that the actions by both
the Army Corps and NOAA are discretionary decisions that fall
within the implied discretionary function exception to the SAA.
Thus, defendants argue the United States is protected from suit by
sovereign immunity.
A. Existence of the Implied Discretionary Function Exception
We begin with the threshold issue of whether a
discretionary function exception should be implied in the context
of the SAA. Unless such an exception can be implied, waiver of
sovereign immunity by the United States would allow the plaintiffs'
suit to proceed.
The United States, as sovereign, is immune from suit
unless it waives its sovereign immunity and consents to be sued.
See, e.g., United States v. Thompson, 98 U.S. 486, 489 (1878).
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Absent express waiver of sovereign immunity, federal courts lack
subject matter jurisdiction over suits against the United States.
United States v. Sherwood, 312 U.S. 584, 586 (1941). In the SAA,
the United States waives its sovereign immunity from suit for
maritime torts committed by its agents. See 46 U.S.C. Appx. § 742;
Gercey v. United States, 540 F.2d 536, 539 (1st Cir. 1976).
The SAA contains no express exceptions to the waiver of
sovereign immunity. In contrast, the Federal Torts Claims Act
("FTCA"), 28 U.S.C. § 1346(b), which waives sovereign immunity for
tort claims against the United States, contains an express
exception to shield the "discretion of the executive or
administrator to act according to one's judgment of the best
course." Dalehite v. United States, 346 U.S. 15, 34 (1953). This
discretionary function exception serves to prevent "judicial
'second-guessing' of legislative and administrative decisions
grounded in social, economic, and political policy." United States
v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467
U.S. 797, 814 (1984). This Court has held that a similar
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discretionary function exception is to be implied into the SAA.3
See Gercey, 540 F.2d at 539.
We decline plaintiffs' invitation to reconsider our
decision in Gercey, and reaffirm the principles set forth therein.
Congress did not intend, by passing the SAA, to create a system
wherein all administrative decisions concerning maritime matters
are second-guessed and subject to judicial review. Gercey, 540
F.2d at 539. Absence of an "express Congressional directive to the
contrary" will not be read as a green light for federal courts to
3
In Gercey, this court held that
the [SAA] does not contain an express exemption for harm
caused by the exercise of "discretionary functions", a
category which includes, and probably should be limited
to, basic "policy judgments as to the public interest."
Although the [SAA] contains no express exception, we
think that sound principles demand that the act be
construed as subject to such discretionary function
exception. Were there no such immunity for basic policy
making decisions, all administrative and legislative
decisions concerning the public interest in maritime
matters would be subject to independent judicial review
in the not unlikely event that the implementation of
those policy judgments were to cause private injuries.
Id. at 539 (emphasis added) (citations and footnote omitted). The
other circuit courts that have considered this issue have also
concluded that the "SAA’s waiver of immunity is subject to the
discretionary function exception." Mid-South Holding Co., Inc. v.
United States, 225 F.3d 1201, 1204 (11th Cir. 2000) (citing Tew v.
United States, 86 F.3d 1003, 1005 (10th Cir. 1996) (providing case
law from ten different circuits, including this one, supporting the
existence of an implied discretionary function in the SAA)).
Plaintiffs point to Lane v. United States, 529 F.2d 175 (4th Cir.
1975), in support of their argument that the discretionary function
exception does not apply in the SAA context. The Fourth Circuit,
however, now agrees that the exception should be read into the SAA.
Tiffany v. United States, 931 F.2d 271, 277 (4th Cir. 1991).
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assume power to review "all administrative and legislative
decisions concerning the public interest in maritime matters." Id.
The district court did not err in applying well-established law
implying a discretionary function exception to the SAA.
B. Applicability of the Implied Discretionary Function Exception
Given that there is an implied discretionary function
exception to the SAA, we turn to the argument that the district
court misapplied the exception to the facts of the case at bar. As
in the FTCA context, the implied discretionary function exception
to the SAA "insulates the Government from liability if the action
challenged in the case involves the permissible exercise of policy
judgment." Berkovitz v. United States, 486 U.S. 531, 537 (1988).
Plaintiffs suggest that the actions of the Army Corps and NOAA fail
to meet the discretionary function exception's applicability test
and that the United States is therefore subject to suit.
In Berkovitz, the Supreme Court set forth a two-part test
to determine whether the discretionary function exception bars a
suit against the United States.4 486 U.S. at 535-37. First, a
4
In Berkovitz, the Supreme Court was specifically addressing the
discretionary function exception to the FTCA. 486 U.S. at 533. We
hold that the Berkovitz test applies in cases involving the implied
discretionary function exception to the SAA. Other courts have
applied the Berkovitz test when analyzing the issue of the
applicability of the discretionary function exception in a suit
brought under the SAA. See, e.g., Theriot v. U.S., 245 F.3d 388,
397 (5th Cir. 1998); Cassens v. St. Louis River Cruise Lines, Inc.,
44 F.3d 508, 511-14 (7th Cir. 1995). Furthermore, there is
evidence on the record that both parties agreed that if the
discretionary function exception applies, it is subject to the
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court must determine if the challenged conduct involves an element
of judgment, meaning that "the action is a matter of choice for the
acting employee." Id. at 536. Second, "a court must determine
whether that judgment is of the kind that the discretionary
function exception was designed to shield," meaning it involved
"governmental actions and decisions based on considerations of
public policy." Id.
1. Applicability of the Discretionary Function Exception to the
Army Corps' Survey
It is well established that "the discretionary function
exception will not apply when a federal statute, regulation, or
policy specifically prescribes a course of action for an employee
to follow." See Berkovitz, 486 U.S. at 536. However, if there is
no mandatory regulation that requires a particular course of
action, then the discretionary function exception can apply. Id.
Here, plaintiffs argue that the Army Corps failed to follow
mandatory internal procedures requiring its survey of the Boston
Harbor to be conducted in accordance with NOAA guidelines. Because
they contend that compliance with the NOAA guidelines was
mandatory, plaintiffs claim that the discretionary function
exception cannot protect the United States from suit. We disagree.
No mandatory internal procedures or directives required
the Army Corps to adhere to the NOAA guidelines in conducting its
analysis of the Berkovitz test.
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survey of the Boston Harbor, thus the "element of judgment" prong
of the Berkovitz test is met. The Army Corps generally follows its
own manual when it performs oceanic surveys, and there is no
dispute that the Army Corps' Hydrographic Surveying: Engineer
Manual (1994) ("Army Corps Manual") applies to hydrographic surveys
planned and performed by the Army Corps and sets forth the
applicable procedures. Army Corps Manual at 1-4 (stating that
"manual establishes standard procedures, minimum accuracy
requirements, instrumentation and equipment requirements, and
quality control criteria for hydrographic surveys"). The Army
Corps Manual states:
This manual is intended to cover only those
engineering and construction survey activities
which support typical river, harbor, harbor
approach channel, or inland waterway projects.
. . . [it] does not cover classical
hydrographic surveying functions which are
more traditionally associated with the
preparation of nautical charts. These
procedures are detailed in the [NOAA
Hydrographic Manual].
Army Corps Manual at 1-4(b). Here, the parties agreed and the
district court found that the Army Corps conducted the Boston
Harbor survey as a "condition survey," which is a periodic survey
carried out "to determine the present condition of navigation
channels [and] underwater features, but is not a survey in
conjunction with the preparation of a nautical chart." Army Corps
Manual at 2-10. There is no mandatory language in the Army Corps
Manual indicating that the Army Corps must follow the NOAA
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guidelines when carrying out a condition survey, even if it is
aware that such a survey may be used by other agencies to prepare
nautical charts -- what matters is the purpose of the survey at the
time it is conducted by the Army Corps.5 Since the purpose of the
survey at the time it was conducted was to determine the condition
of the harbor rather than to chart its depth, the Army Corps was
under no obligation to comply with NOAA guidelines.
Having found that the choice to conduct the condition
survey according to the Army Corps guidelines constituted a
discretionary choice, we now turn to the second part of the
Berkovitz test and consider whether that decision is of the type
the discretionary function exception was designed to protect.
Berkovitz, 486 U.S. at 537.
Where "a regulation allows the employee discretion, the
very existence of the regulation creates a strong presumption that
a discretionary act authorized by the regulation involves
consideration of the same policies which led to the promulgation of
the regulations."6 United States v. Gaubert, 499 U.S. 315, 347
5
Plaintiffs argue that the purpose of the 1990 survey is a
disputed issue of material fact. As we stated above, however, both
parties conceded the survey was indeed a condition survey and thus
not a survey conducted for the purpose of creating a nautical
chart.
6
The fact that we are concerned here with internal procedures and
guidelines, as embodied in the Army Corps Manual, rather than with
federal statutes or regulations does not change our analysis. The
Gaubert presumption applies to internal procedures:
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(1991). Plaintiff bears the burden of rebutting this presumption
and demonstrating that the conduct at issue is not policy-based.
See Wood v. United States, 290 F.3d 29, 37 (1st Cir. 2002). Here,
the plaintiffs fail to meet this burden. Indeed the Corps'
decision to follow its own less stringent guidelines is most likely
a choice aimed to maximize efficient use of resources, and is thus
policy-based. See, e.g., Varig Airlines, 467 U.S. at 820
(recognizing the efficient allocation of agency resources as a
policy choice).
2. Applicability of the Discretionary Function Exception to NOAA's
use of the Army Corps Survey in Creating the Chart
This leaves only the argument that once NOAA made the
decision to create a chart, it had a duty to produce it
accurately.7 In Indian Towing Co. v. United States, 350 U.S. 61
Not all agencies issue comprehensive regulations,
however. Some establish policy on a case-by-case basis,
whether through adjudicatory proceedings or through
administration of agency programs. Others promulgate
regulations on some topics, but not on others. In
addition, an agency may rely on internal guidelines
rather than on published regulations. . . . When
established governmental policy, as expressed or implied
by statute, regulation, or agency guidelines, allows a
Government agent to exercise discretion, it must be
presumed that the agent's acts are grounded in policy
when exercising that discretion.
Gaubert, 499 U.S. at 324.
7
The argument depends on the assumption that the chart would have
been accurate had it been based on a survey conducted under the
more stringent NOAA standards. It is unclear to us that this
argument was presented by appellants on appeal, but we will assume
arguendo that it remains a viable argument.
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(1955), the Supreme Court held the United States liable for
negligently maintaining a lighthouse built by the Coast Guard. Id.
at 69. Mariners relied on the lighthouse for navigation and
plaintiff's ship was damaged when it ran aground because the light
went out. Id. at 62. The Indian Towing Court indicated that once
the Coast Guard exercised its discretion to operate the lighthouse,
it was under an obligation to do so with reasonable care. Id. at
68. We find that Indian Towing can be distinguished from the
instant case because there the government conceded that the
discretionary function exception did not apply. Id. at 64. In
this case, however, the government vigorously argues, and we agree,
that the decision by NOAA to use the Corps' data to create the
chart was discretionary and was thus the type of decision the
discretionary function exception was meant to protect.8
The "element of judgment" prong of the Berkovitz test is
satisfied because NOAA's decision to use the Army Corps survey in
fact contains an element of judgment. As stated above, the
discretionary function applies unless a "federal statute,
regulation or policy specifically prescribes a course of action for
an employee to follow." Berkovitz, 486 U.S. at 537; accord Wood,
8
Appellants have not challenged NOAA's actual use of the Corps'
data as negligent, but rather have chosen to challenge NOAA's
decision to use the Corps' data to create the nautical chart.
Indian Towing would only apply in the former case, where once NOAA
exercised its discretion to use the Corps' data it had to do so in
a non-negligent manner.
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290 F.3d at 36. Nowhere in NOAA’s Hydrographic Manual are employees
directed to use as the basis for charts only surveys conducted by
NOAA or by other entities following NOAA’s guidelines. In fact,
the manual only stipulates that if NOAA itself conducts a survey,
it must conform with the manual's specific directives. Here, NOAA
did not conduct the 1990 survey of the Boston Harbor which formed
the basis for the chart. Since there is no specific regulation,
and thus no mandatory language either (1) directing the
cartographer as to the surveys that ought to be used when making a
chart, or (2) prohibiting use of non-NOAA conforming surveys in
creation of a chart, it was within the cartographer’s discretion to
use the survey made by the Army Corps. See Baird v. United States,
653 F.2d 437, 441 (10th Cir. 1981).
Plaintiffs cite In re Glacier Bay, 71 F.3d 1447 (9th Cir.
1995) in support of their argument that the discretionary function
does not apply here because NOAA did not follow mandatory
procedures regarding hydrographic surveys. Glacier Bay involved
the grounding of a vessel on a rock that was omitted from the
nautical chart. Id. at 1449-50. In that case, the Ninth Circuit
allowed a negligence suit against the government to proceed because
NOAA did not comply with its internal guidelines in conducting the
survey for the chart. See id. at 1453 (holding that the "general
grant of discretion was superseded by mandatory requirements" and
thus "the discretionary exception function [sic] does not apply").
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The Glacier Bay case dealt with surveys conducted by NOAA
hydrographers for the purpose of preparing nautical charts. Id. at
1450. Glacier Bay is inapposite, however, because this case deals
with NOAA's decision to use an Army Corps condition survey for the
preparation of a chart rather than with NOAA's failure to follow
its own procedures in conducting an independent hydrographic
survey.
The second requirement of the Berkovitz test, that the
judgment is the type the discretionary function was designed to
protect, is also satisfied with respect to NOAA's decision. The
allocation of resources for the production and dissemination of
ocean charts by a budget-constrained entity like NOAA is a policy
decision that falls within the ambit of the discretionary function
exception. Allocation of resources and budget management involve
prioritizing and are quintessentially policy-based choices. See
Varig Airlines, 467 U.S. at 820; Weissich v. United States, 4 F.3d
810, 813 (9th Cir. 1993) (finding budget and personnel allocation
decisions fall within discretionary function exception); Chute v.
United States, 610 F.2d 7, 12 (1st Cir. 1979) (indicating the
allocation of resources among competing priorities is a policy
function). If this Court were to agree with plaintiffs, we would
be second-guessing NOAA's policy decision and would be going
against the clear intent of the implied discretionary function
exception, which is "to prevent judicial second-guessing of
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legislative and administrative decisions grounded in social,
economic, and political policy." Berkovitz, 486 U.S. at 536-37
(quoting Varig Airlines, 467 U.S. at 814).
Because NOAA’s decision to rely on the Army Corps' survey
for the creation of its chart was a policy-based discretionary
decision, the discretionary function exception applies. Given the
applicability of the discretionary function exception to both the
Army Corps and NOAA decisions, we find that the United States has
not waived sovereign immunity and cannot be subjected to suit in
this matter. See Wood, 290 F.3d at 33-34.
Even if the decision to use the Corps' survey is not
protected by the discretionary function exception, we find that no
liability attaches here. Indian Towing does not stand for the
proposition that once the United States undertakes a function, such
as production of a nautical chart, "the most effective and best
means must always be selected." Chute, 610 F.2d at 17. Instead,
the 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 which, in fact, it is not
providing." United States v. Sandra & Dennis Fishing Corp., 372
F.2d 189, 195 (1st Cir. 1967).
Here, the government cannot be held liable under the
principles established by Indian Towing, because (1) it is
unreasonable for mariners to rely solely on the chart; and (2) in
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the alternative, the government did not create the danger in the
Boston Harbor. In order for Indian Towing to apply, the chart
would need to induce reasonable reliance on the part of mariners.
See Whitney Steamship Co. v. United States, 747 F.2d 69, 78 (2d
Cir. 1984) (Tenney, J., dissenting) (arguing that Indian Towing
applies only where reliance is reasonable). Given the constant
possibility that silting or other events may alter the depth of the
harbor at any given point, reliance on a year-old chart was
unreasonable. Further, the state law requirement that foreign
vessels employ a special harbor pilot in the Boston Harbor suggests
that at least the Massachusetts legislature believed that reliance
on the accuracy of a chart is unreasonable. Were such reliance
reasonable, then nautical charts alone would be sufficient for
navigation, and presumably a mariner inexperienced with the Boston
Harbor would be able to maneuver a vessel safely through its waters
by simply using a chart.
Even if there were no statutory requirement for an
experienced harbor pilot, the prudent mariner does not rely on
charts alone when navigating a body of water. See, e.g., Sheridan
Transp. Co. v. United States, 897 F.2d 795, 798 (5th Cir. 1990)
("aids to navigation do not exist in a vacuum and there are various
documents which a mariner must use to determine whether he is
justified in relying on an aid"); Tidewater Marine, Inc. v. Sanco
Int'l, Inc., 113 F. Supp. 2d 987, 997 (E.D. La. 2000) ("Buoys,
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radar, Loran, charts, Notices to Mariners, and lookouts are all
aids to navigation. None of these alone can be considered absolute
indicators of sea conditions."). Here, the chart itself contained
prominent warnings that mariners should look to other sources for
up-to-date information about the harbor. Because a mariner cannot
reasonably rely solely on a chart, nautical charts do not induce
reliance such that the government has a duty to ensure their
accuracy, especially where the government specifically directs
mariners to other publications through warnings or cautions on the
chart itself.9
9
The Fifth Circuit takes a different position:
[Nautical charts] are not just casual publications which
may be of interest to or fall into the hands of an
indeterminate number of users. These charts are published
by the Government with the certain knowledge that they
(i) will be disseminated through reliable channels to
ships and crews and (ii) will be relied on as accurate
portrayals of the waters covered. Indeed, this
expectation is mandated as a rule of prudent conduct on
the part of shipowners. Sailing without a chart or with
an obsolete one ranks as more than a mere indiscretion.
Many Courts have found such ships to be unseaworthy.
Others have found mariners who follow such practice
guilty of "glaring" or "gross" fault.
What the maritime law exacts of shipowner through
decisions of admiralty courts may hardly be ignored by
the Executive Agency responsible for such charts. The
Government must therefore bear the burden of using due
care in the preparation and dissemination of such charts
and notices.
De Bardeleben Marine Corp. v. United States, 451 F.2d 140, 148-49
(5th Cir. 1971) (footnotes omitted). While the Fifth Circuit
believes the government has a duty to produce charts with due care,
it goes on to say that "the Government's obligation ceases at that
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Where the government does not create a danger but rather
only fails to "render adequate performance," liability does not
attach. Brown v. United States, 790 F.2d 199 (1st Cir. 1986)
(distinguishing Indian Towing, where "the government created a
danger by representing that an operating lighthouse was present"
from cases where the government does not itself create the danger,
as in the case where the government issues weather advisories but
does not control the weather). Here, the government did not create
the dangers of the Boston Harbor, but merely undertook to produce
a chart depicting the depths of the harbor.
IV. Conclusion
For the above-stated reasons, this Court affirms the
judgment of the lower court.
Affirmed.
time in which a prudent shipowner-navigator would have reasonably
received the Notice to Mariner." Id. at 149. We believe an
adequate warning, such as a Notice to Mariners, regarding possible
inaccuracies in a chart "may absolve the [government] of liability"
because "the navigator would no longer be entitled to rely on the
[navigational] aid." Whitney Steamship, 747 F.2d, at 78 (Tenney,
J., dissenting). Thus, where, as here, mariners are warned to look
to recent Notices to Mariners for the latest information regarding
a waterway, the due care obligation is met.
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