Garcia v. USA

Case: 19-40718 Document: 00515711385 Page: 1 Date Filed: 01/19/2021

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

January 19, 2021

No. 19-40718 Lyle W. Cayce

Clerk

Francisco Ortega Garcia, individually and as surviving spouse of

Patricia Guadalupe Garcia Cervantes, and as successor-in-interest to the estate;

and as next friend of V.S.O.G., a minor child,

Plaintiff—Appellant,

versus

United States of America; Mercury Marine, a division of

Brunswick Corporation; Safe Boats International, L.L.C.,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:17-CV-28

Before Jolly, Jones, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

While patrolling the Brownsville Ship Channel around midnight, a

United States Coast Guard vessel struck and killed Patricia Guadalupe

Garcia Cervantes, a Mexican citizen who was attempting to enter the United

States illegally by swimming across the Channel. Litigation ensued.

Francisco Ortega Garcia, individually and on behalf of his and Cervantes’

daughter, V.S.O.G., brought (1) negligence and wrongful death claims

Case: 19-40718 Document: 00515711385 Page: 2 Date Filed: 01/19/2021

No. 19-40718

against the United States and (2) products liability, gross negligence, and

wrongful death claims against the manufacturers of the vessel and its engines,

Safe Boats and Mercury Marine.

The district court dismissed everything. It dismissed the negligence

claim against the United States, concluding that the United States owed no

duty to Cervantes. It dismissed the products liability claims against Safe

Boats and Mercury Marine, concluding that Cervantes, as a bystander,

lacked standing to bring those claims. And, because it dismissed all the

underlying tort claims, the district court dismissed the wrongful death claims.

For the reasons below, we affirm the dismissal of all Garcia’s claims against

the United States, Safe Boats, and Mercury Marine.

I

A

The Brownsville Ship Channel (BSC) lies just three miles north of

the mouth of the Rio Grande and connects the Port of Brownsville with the

Gulf of Mexico. 1 The BSC is a “high-traffic waterway, travelled day and

night by various vessels from small fishing boats to large tankers.” 2 In

1

See United States v. Ruiz-Hernandez, 890 F.3d 202, 206 (5th Cir. 2018) (describing

the BSC).

2

Id.

2

Case: 19-40718 Document: 00515711385 Page: 3 Date Filed: 01/19/2021

No. 19-40718

general, “there is no posted speed limit” on the BSC, 3 and “[t]here are no

lights along the [BSC], making it very dark at night.” 4

The United States Coast Guard maintains a station on South Padre

Island, near the BSC. The station’s “primary missions” include “search

and rescue and maritime law enforcement.” Coast Guard law enforcement

patrols roughly 30 miles of the Texas coast and several nearby waterways,

including the BSC. The purpose of the patrols is “to deter and interdict

immigrants and narcotic smugglers, ensure safety and security of the

maritime facilities within the Port of Brownsville, and to conduct commercial

and recreational vessel boardings to enforce various safety and security laws

and regulations.”

The Coast Guard’s patrol route follows a southwestern course,

departing from the South Padre Island station, traveling along the BSC,

passing the Shrimp Basin, and reaching the Port of Brownsville Turning

Basin, at which point the patrol crew turns around and heads back to the

station. Coast Guard crews conduct BSC patrols aboard a Special Purpose

Craft-Law Enforcement (SPC-LE) vessel. The Coast Guard developed

specifications for the SPC-LE, including that it be a “planing” vessel, a type

of vessel in which the bow rises while it is accelerating, only to fall again when

3

The one exception is the no-wake zone in the Shrimp Basin, a docking area on the

BSC’s north side where vessels must travel slowly. Id.

4

Id. Although the Port of Brownsville commercial complex, located along the

shores of the BSC between the Shrimp Basin and the Port of Brownsville Turning Basin,

has “numerous commercial maritime facilities” that “have significant lighting that

illuminates the general vicinity within the BSC,” “[t]he remainder of the BSC, northeast

from the Shrimp Basin”— where the incident occurred—“is mostly undeveloped with

minimal shore side lighting.”

3

Case: 19-40718 Document: 00515711385 Page: 4 Date Filed: 01/19/2021

No. 19-40718

it reaches “planing speed” of approximately 19.2 knots. 5 The Coast Guard

awarded the SPC-LE manufacturing contract to Safe Boats. Safe Boats

complied with the Coast Guard’s “planing” vessel specifications when it

supplied its SPC-LEs, and these vessels included engines with propeller

drives manufactured by Mercury Marine.

* * *

At 9:53 p.m. on April 23, 2015, four United States Coast Guard

members commenced a patrol of the BSC aboard an SPC-LE vessel. 6 At all

relevant times, the vessel’s navigation lights were on. Around 11:00 p.m., one

of the crewmembers requested and received permission to accelerate the

vessel to come up on plane. Two crewmembers assert that they looked

forward before the vessel came up on plane and did not see anything in the

water. In approximately 30 seconds, the vessel came up on plane. The vessel

then transited for approximately 30 seconds at an average speed of 30.86

knots until the crew heard a “thud” or “thump” sound under the vessel’s

hull. The crew stopped the vessel, turned it around, and searched the area to

identify the source of the sound. They spotted and recovered a pink plastic

innertube. After this search, the crew continued the patrol and returned to

the Coast Guard station around 12:40 a.m.; they reported to Coast Guard

officials and showed their superiors the recovered pink innertube.

Unbeknownst to the crew, Patricia Guadalupe Garcia Cervantes, a

Mexican citizen, and Galdino Jose Ruiz-Hernandez, a human smuggler, had

5

See Mark Corke, Getting an Outboard Boat on Plane, Boat U.S.,

https://www.boatus.com/magazine/2018/february/getting-on-plane.asp (describing how

to get a boat “on plane”).

6

The four United States Coast Guard members will be referred to as the crew. The

crew consisted of a certified coxswain, a break-in-coxswain, a boarding officer, and a

crewmember.

4

Case: 19-40718 Document: 00515711385 Page: 5 Date Filed: 01/19/2021

No. 19-40718

been attempting to illegally enter the United States by swimming across the

BSC. 7 Cervantes was using a pink innertube as a flotation device. Cervantes

was struck by the Coast Guard crew’s vessel approximately 30 seconds after

the vessel had fully come up onto plane. An autopsy, conducted three days

after this incident, revealed that the injuries on Cervantes’ body were

consistent with the shape of the vessel’s propeller blades, and the coroner

determined that Cervantes “died nearly instantly” after the collision

“because of the initial blunt force trauma and blood loss.” The Coast Guard

conducted an investigation of the incident, which was summarized in a Major

Incident Report, completed on July 14, 2015.

B

Francisco Ortega Garcia brought this suit in his individual capacity,

as Cervantes’ spouse and administrator of her estate, and on behalf of his and

Cervantes’ minor daughter, V.S.O.G. Garcia asserted several claims

against three defendants: (1) negligence and wrongful death claims against

the United States for the Coast Guard’s operation of the vessel; (2) strict

products liability, gross negligence, and wrongful death claims against Safe

Boats regarding the vessel; and (3) strict products liability, gross negligence,

and wrongful death claims against Mercury Marine regarding the vessel’s

engines.

The United States moved to dismiss parts of Garcia’s negligence

claim for lack of subject-matter jurisdiction. 8 Safe Boats moved for partial

7

Ruiz-Hernandez was convicted of one count of conspiring to bring in, transport,

and harbor an alien resulting in death and one count of transporting an alien within the

United States for private financial gain and resulting in death. We upheld his conviction

and sentence on appeal. Ruiz-Hernandez, 890 F.3d at 208, 213.

8

The United States moved to dismiss the portions of Garcia’s negligence claim

alleging improper design of the vessel and lack of proper training and supervision of Coast

5

Case: 19-40718 Document: 00515711385 Page: 6 Date Filed: 01/19/2021

No. 19-40718

summary judgment on four different issues. 9 While all these motions were

pending, the magistrate judge issued a Report and Recommendation (R&R),

recommending that all of Garcia’s claims be dismissed. Garcia timely filed

objections to the R&R. The district court overruled Garcia’s objections,

adopted the magistrate judge’s R&R in its entirety, and dismissed all of

Garcia’s claims with prejudice. Specifically, the district court determined

that: (1) Garcia failed to identify what duty the United States owed to

Cervantes; (2) he failed to show that Safe Boats and Mercury Marine had a

duty to warn Cervantes; (3) he could not maintain the maritime products

liability claims because Cervantes, as a “casual bystander,” lacked standing

to bring those claims; and (4) he could not maintain wrongful death claims

because all the underlying tort claims were dismissed. Garcia appealed.

II

Before reaching the issues that Garcia raises on appeal, there are three

threshold matters: (1) whether the district court had subject-matter

jurisdiction; (2) whether Garcia has standing to sue in his individual capacity;

and (3) the proper standard of review. We address each in turn.

A

First, we address the parties’ confusion about the basis for the district

court’s subject-matter jurisdiction. 10 Because Garcia brings claims against

Guard personnel, arguing those claims were barred by sovereign immunity and outside the

discretionary function exception to the waiver of sovereign immunity.

9

Safe Boats filed motions for partial summary judgment on the issues of

(1) punitive damages, (2) Garcia’s lack of standing, (3) proximate cause, and (4) the

government contractor defense.

10

The magistrate judge noted the “disagreement between the parties over the

jurisdictional bases of [Garcia’s] claims.” “[S]ubject-matter jurisdiction is not waivable,”

6

Case: 19-40718 Document: 00515711385 Page: 7 Date Filed: 01/19/2021

No. 19-40718

the United States, our subject-matter jurisdiction analysis involves two

inquiries: (1) Did the United States waive its sovereign immunity? And if so,

(2) does diversity or admiralty subject-matter jurisdiction apply?

Turning to the first inquiry: To maintain a suit in district court against

the United States, a plaintiff must bring claims under a statute in which

Congress expressly waives the United States’ sovereign immunity. 11 Garcia

brings his claims under the Federal Tort Claims Act (FTCA) 12 or, in the

alternative, the Suits in Admiralty Act (SIAA) 13 and the Public Vessels Act

(PVA). 14 Determining which waiver statute applies matters because the

FTCA excludes claims in admiralty, while the SIAA and PVA do not. 15 So,

we must first decide whether Garcia’s claims are admiralty claims.

A party seeking to invoke federal admiralty jurisdiction over a tort

claim must demonstrate that the tortious activity (1) “occurred on navigable

water” or that an “injury suffered on land was caused by a vessel on navigable

water,” and (2) bears a “connection with the maritime activity.” 16 Garcia

has done both. First, he alleges that Cervantes’ death occurred on the BSC.

and we are “under a continuing duty to inquire into the basis of jurisdiction in the district

court.” Warren v. United States, 874 F.2d 280, 281–82 (5th Cir. 1989).

11

See Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d

1283, 1287 (5th Cir. 1997) (“[T]he United States is immune from suit unless it consents,

and the terms of its consent circumscribe our jurisdiction.”).

12

28 U.S.C. § 1346(b)(1).

13

46 U.S.C. §§ 30901 et seq.

14

46 U.S.C. §§ 31101 et seq.

15

28 U.S.C. § 2680(d). See also McCormick v. United States, 680 F.2d 345, 348 (5th

Cir. 1982); Williams v. Central Gulf Lines, 874 F.2d 1958, 1062 (5th Cir. 1989).

16

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534

(1995). See 28 U.S.C. § 1331.

7

Case: 19-40718 Document: 00515711385 Page: 8 Date Filed: 01/19/2021

No. 19-40718

Second, he alleges that her death was caused by a Coast Guard vessel, which

clearly bears a connection with maritime activity. 17

Federal Rule of Civil Procedure 9(h) specifies how a pleading may

designate claims as admiralty claims. 18 A party need not make a specific

reference to Rule 9(h) in his complaint, as long as the complaint contains “a

simple statement asserting admiralty or maritime claims,” which we have

held sufficient to invoke a district court’s admiralty jurisdiction. 19

In his complaint, Garcia asserts that the district court has diversity

subject-matter jurisdiction under 28 U.S.C. § 1332. Although Garcia’s

complaint does not refer to Rule 9(h) or to the district court’s admiralty

subject-matter jurisdiction under 28 U.S.C. § 1333, Garcia’s complaint does

contain a simple statement asserting maritime claims, which is sufficient for

admiralty jurisdiction purposes. 20 These are admiralty claims because they

involve a vessel collision. Because Garcia’s case is one in admiralty, the

relevant sovereign immunity statutory waivers are the SIAA and PVA, not

the FTCA. And these statutory waivers apply because this case—a collision

between a Coast Guard vessel and an individual—falls within their statutory

scope. Because the SIAA and PVA waive the United States’ sovereign

17

See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996) (citations

omitted) (applying admiralty law in a case involving “a watercraft collision on navigable

waters”).

18

Fed. R. Civ. P. 9(h).

19

Teal v. Eagle Fleet, Inc., 933 F.2d 341, 345 (5th Cir. 1991).

20

In addition, Garcia affirmatively stated that he did not object to the magistrate

judge’s R&R conclusion that Garcia had properly invoked admiralty jurisdiction as to all

defendants, and the district court noted that Garcia elected to proceed under its admiralty

jurisdiction.

8

Case: 19-40718 Document: 00515711385 Page: 9 Date Filed: 01/19/2021

No. 19-40718

immunity, the district court had subject-matter jurisdiction based in

admiralty.

B

As a second threshold matter, we must address whether Garcia has

standing to sue as Cervantes’ surviving spouse. 21 To determine standing in

maritime accident cases, we apply state wrongful death and survival

statutes. 22 Texas law—the relevant state law here—provides that only the

surviving spouse, children, and parents of a deceased individual may be the

beneficiaries of wrongful death and survival suits. 23 Garcia admits that he and

Cervantes were never formally married; he says that they had a common-law

marriage. To prove a common-law marriage under Texas law, Garcia must

provide evidence that that he and Cervantes (1) agreed to be married and

after that agreement (2) lived together in Texas where (3) they represented

to others that they were married. 24 Garcia and Cervantes never lived together

in Texas, let alone represented to others in Texas that they were married.

Because Garcia is unable to show that he is Cervantes’ common-law spouse

under Texas law, he does not qualify as Cervantes’ surviving spouse and

21

“The standing doctrine defines and limits the role of the judiciary and is a

threshold inquiry to adjudication.” McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003).

Safe Boats raised the standing issue in its Motion for Partial Summary Judgment. Safe Boats

and Mercury Marine again raise the standing issue in their brief. The United States does

not raise this issue.

22

Yamaha, 516 U.S. at 215–16.

23

Tex. Civ. Prac. & Rem. Code § 71.004(a) provides: “An action to recover

damages . . . is for the exclusive benefit of the surviving spouse, children, and parents of the

deceased.” See id. § 71.004(b).

24

Tex. Fam. Code § 2.401(a)(2).

9

Case: 19-40718 Document: 00515711385 Page: 10 Date Filed: 01/19/2021

No. 19-40718

therefore lacks standing in his individual capacity to bring wrongful death and

survival claims. 25

Notwithstanding his own lack of standing, Garcia may still maintain

claims as next-of-friend for V.S.O.G., his child with Cervantes.

Accordingly, we have jurisdiction to reach the merits of Garcia’s claims. 26

C

As a final preliminary matter, we must clarify the correct standard of

review. When the district court dismissed Garcia’s claims, it had several

motions before it, including the United States’ motion to dismiss Garcia’s

negligence claim and Safe Boats’ four motions for partial summary judgment.

The district court did not explicitly state which motions it was addressing,

and it did not state the standard(s) it was applying. 27

The district court dismissed Garcia’s negligence claim against the

United States on the grounds that Garcia failed to establish that the United

25

Garcia relies on a Texas probate court’s determination that he is an heir of

Cervantes and designated as her spouse. But Texas family law, not the probate court’s

determination of marital status for purposes of inheritance law, determines standing for

wrongful death and survival claims.

26

We have jurisdiction under 28 U.S.C. § 1291.

27

The magistrate judge’s R&R also was unclear as to what motions it was

addressing and what standard it was applying.

Although not raised as a stand alone issue, Garcia argues throughout his brief that

the magistrate judge raised several of the reasons for dismissal sua sponte, including the

magistrate judge’s determination that Garcia failed to adequately identify the duty the

Coast Guard owed Cervantes and that Cervantes was a “casual bystander” who lacked

standing to bring products liability claims. Garcia argues this was improper because the

United States had not filed a motion for summary judgment on his negligence claim, and

Safe Boats and Mercury Marine had not moved for summary judgment on the “casual

bystander” issue.

However, “district courts are widely acknowledged to possess the power to enter

summary judgment sua sponte, so long as the losing party was on notice that she had to come

10

Case: 19-40718 Document: 00515711385 Page: 11 Date Filed: 01/19/2021

No. 19-40718

States owed a duty to Cervantes and thus failed to allege a prima facie claim

of negligence. 28 Determination of duty is a question of law that we review de

novo. 29

Turning to the remainder of Garcia’s claims, the district court

dismissed: (1) the failure-to-warn claims against Safe Boats and Mercury

Marine because it found their duty to warn was owed to the United States,

not to Cervantes; (2) the design defect claims against Safe Boats and Mercury

Marine because Cervantes, as a “casual bystander,” lacked standing to bring

maritime products liability claims; and (3) the wrongful death claims against

the United States, Safe Boats, and Mercury Marine because the underlying

tort claims had been dismissed. In dismissing these claims, the district court

relied on the R&R for the facts, which cited evidence outside the pleadings,

so we treat the district court’s order as a summary judgment ruling.

We review a district court’s grant of summary judgment de novo,

viewing all the facts and evidence in the light most favorable to the non-

forward with all of her evidence.” Atkins v. Salazar, 677 F.3d 667, 678 (5th Cir. 2011)

(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (alteration omitted)). Applying a

previous version of Federal Rule of Civil Procedure 56, we held that ten days’ notice is

sufficient to “grant summary judgment sua sponte on grounds not urged in a pending

motion.” Lozano v. Ocwen Federal Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007). Here,

Garcia objected to the magistrate judge’s R&R fourteen days after it was filed. The district

court adopted the magistrate judge’s R&R in its entirety almost three months after those

objections were filed. Because Garcia had sufficient notice that the district court might

grant summary judgment on grounds not raised by the defendants, Garcia’s argument of

insufficient notice—to the extent he makes this argument—fails.

28

In a footnote, the district court tangentially addressed the United States’ 12(b)(1)

motion to dismiss based on the discretionary function exception. Because it dismissed the

products liability claims based on Cervantes’ lack of standing, the district court did not

address the discretionary function exception to a waiver of sovereign immunity.

29

In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010)

(quoting In re Signal Int’l, LLC, 579 F.3d 478, 490 (5th Cir. 2009)).

11

Case: 19-40718 Document: 00515711385 Page: 12 Date Filed: 01/19/2021

No. 19-40718

movant. 30 Summary judgment is appropriate “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” 31 A genuine dispute of material fact exists when

“the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” 32

* * *

Summing up: We have subject-matter jurisdiction (because the

United States waived its sovereign immunity under the SIAA and PVA) and

the proper basis of subject-matter jurisdiction is in admiralty; Garcia does not

have standing to sue in his individual capacity but may bring claims on behalf

of V.S.O.G.; and we review the district court’s grant of summary judgment

and its duty determination de novo.

III

Garcia raises several issues on appeal.

• Regarding his negligence claim against the United States,

Garcia argues that the district court erred in finding that the

United States owed no duty to Cervantes based on the lack

of foreseeability.

• For his products liability claims against Safe Boats and Mercury

Marine, Garcia contends: (1) the district court erred in

applying the Restatement (Second) of Torts, which

forecloses Cervantes’ standing to maintain the products

liability claims; (2) the district court erred in construing his

products liability claims as brought against the United

30

Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013).

31

Fed. R. Civ. P. 56(a).

32

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

12

Case: 19-40718 Document: 00515711385 Page: 13 Date Filed: 01/19/2021

No. 19-40718

States, rather than Safe Boats and Mercury Marine; (3) the

district court erred in dismissing the failure-to-warn claims

and construing them as brought against the United States;

and (4) the district court should have found that Safe Boats

was not entitled to immunity as a government contractor.

• Regarding the wrongful death claims against the United States,

Safe Boats, and Mercury Marine, Garcia argues that the

district court erred in dismissing these claims by concluding

that there were no underlying tort claims.

We address these arguments claim by claim.

A

We first address Garcia’s negligence claim against the United States.

Garcia asserts in his complaint that the United States is vicariously

liable for the Coast Guard crew’s failures to operate the vessel at a safe speed

and with sufficient lighting, to keep a proper lookout, and to render aid to

Cervantes. He argues that the Coast Guard has “a duty . . . to not cause

personal injury or death by their own wrongful or negligent acts or

omissions” and “to not allow a situation to develop which would cause the

death of another human being.” The district court determined that the

United States owed no duty to Cervantes—and was therefore not liable—

because the Coast Guard crew did not have actual knowledge about the

possibility of hitting Cervantes as she swam across the BSC. And, since it

found that there was no duty, the district court dismissed Garcia’s negligence

claim for failure to make out his prima facie claim. On appeal, Garcia argues

13

Case: 19-40718 Document: 00515711385 Page: 14 Date Filed: 01/19/2021

No. 19-40718

that the district court erred because it failed to consider facts known to the

Coast Guard that address the foreseeability of harm.

We begin with the relevant law: “[N]egligence is an actionable wrong

under general maritime law.” 33 To maintain a negligence claim under

admiralty law, the plaintiff must show “a duty owed by the defendant to the

plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal

connection between the defendant’s conduct and the plaintiff’s injury.” 34

We are concerned solely with the duty element.

Under general maritime law, “a tortfeasor is accountable only to those

to whom a duty is owed.” 35 More specifically, under the SIAA and PVA,

the duty owed by the United States “is equal ‘to that of a private person in

like circumstances.’” 36 We must determine the existence and scope of that

duty. 37 While our determination is guided by many factors, an especially

important factor is “the foreseeability of the harm suffered by the

complaining party.” 38 And the foreseeability factor is the critical issue here:

If the harm Cervantes suffered allegedly as a result of the Coast Guard crew’s

33

Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005). See also

Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001) (“The general

maritime law has recognized the tort of negligence for more than a century . . . .”).

34

In re Great Lakes, 624 F.3d at 211 (quoting Canal Barge Co. v. Torco Oil Co., 220

F.3d 370, 376 (5th Cir. 2020)). See also Withhart, 431 F.3d at 842 (providing that the

elements of a negligence claim in maritime law are “essentially the same as land-based

negligence under the common law”).

35

Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987).

36

Southern Nat. Gas Co. v. Pontchartrain Materials, Inc., 711 F.2d 1251, 1254 (5th

Cir. 1983) (quoting Canadian Pac. (Bermuda) Ltd. v. United States, 534 F.2d 1165, 1168 (5th

Cir. 1976)); see 46 U.S.C. §§ 30903(a), 31102(a)(1), 31103.

37

See In re Great Lakes, 624 F.3d at 211.

38

Id. (quoting Consol. Aluminum Corp., 883 F.2d at 67).

14

Case: 19-40718 Document: 00515711385 Page: 15 Date Filed: 01/19/2021

No. 19-40718

negligence was not foreseeable, then the United States owed no duty to

Cervantes and is not liable as a matter of law.

In the context of maritime torts, 39 we have deemed harm to be a

foreseeable consequence of an act or omission “if harm of a general sort to

persons of a general class might have been anticipated by a reasonably

thoughtful person, as a probable result of the act or omission, considering the

interplay of natural forces and likely human intervention.” 40 This definition

of foreseeability is in terms of general forms of harms and general classes of

victims. So, our analysis focuses on the general risk of collision—not on the

particular collision between the Coast Guard vessel and Cervantes—and on

the general class of individuals—not on Cervantes. 41 And, when we consider

the probability of harm, we do so “in terms of the ‘natural and probable’ risks

that a reasonable person would likely take into account in guiding her

practical conduct.” 42

Here, the general sort of harm—a collision between a vessel and an

individual swimming across the BSC—was not foreseeable. The BSC is “a

high-traffic waterway, travelled day and night by various vessels from small

fishing boats to large tankers.” 43 Because the Coast Guard vessel’s duty is

equivalent to that of a private vessel in similar circumstances, Garcia must

show that the private vessels that travel the BSC anticipated this general

39

See id.; In re Signal, 579 F.3d 478; Consol. Aluminum Corp., 883 F.2d 65; Southern

Nat. Gas Co., 711 F.2d 1251.

40

In re Great Lakes, 624 F.3d at 211 (quoting Consol. Aluminum Corp., 883 F.2d at

68).

41

See In re Signal, 579 F.3d at 492.

42

Id. at 491–92.

43

Ruiz-Hernandez, 890 F.3d at 206.

15

Case: 19-40718 Document: 00515711385 Page: 16 Date Filed: 01/19/2021

No. 19-40718

kind of harm. 44 But Garcia provides no indication that any of these private

vessels would reasonably anticipate a collision with a nighttime swimmer.

Plus, “experience and common sense” weigh against the foreseeability of

this general sort of harm. 45 The high-traffic nature of the BSC, compounded

with its minimal lighting and absence of a speed limit, renders a nighttime

crossing by a human not only dangerous, but also unforeseeable. Thus, a

private vessel travelling at night in a high-traffic waterway would not

reasonably anticipate encountering swimmers in the water. Accordingly, the

presence of nighttime swimmers does not “guid[e] [the] practical conduct”

of private vessels in the BSC. 46 Additionally, it bears emphasis that the harm

involves individuals who are intentionally trying to avoid detection. Our

caselaw on the foreseeability of harm in the maritime context has involved

incidents between inanimate objects. 47 Of those cases, only In re Signal found

that the harm was foreseeable, largely because the risk of danger was due to

a discrete incident. 48 Here, because the harm involves individuals, rather

than inanimate objects, it is far more difficult to foresee what an

undocumented alien who is intentionally trying to avoid detection would do.

For these reasons, the harm was not foreseeable.

Likewise, the general class of victims was not foreseeable. Here, the

general class would be individuals swimming across the BSC. And,

44

See Southern Nat. Gas Co., 711 F.2d at 1254 (quoting Canadian Pac. (Bermuda)

Ltd., 534 F.2d at 1168).

45

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

46

In re Signal, 579 F.3d at 492.

47

In re Signal involved a collision between two moored vessels and a bridge after

Hurricane Katrina. Consolidated Aluminum Corp. involved the negligent rupturing of an oil

pipeline. Southern Natural Gas Co. involved a dredging company’s negligently striking of a

pipeline. In re Great Lakes involved a private company’s dredging activities.

48

In re Signal, 579 F.3d at 493.

16

Case: 19-40718 Document: 00515711385 Page: 17 Date Filed: 01/19/2021

No. 19-40718

importantly, this class of victims includes individuals purposefully

attempting to avoid detection. 49 Undocumented aliens’ intention to evade

detection mitigates the foreseeability of harm: If individuals are actively

trying to avoid detection, then they do not wish to be foreseeable. Moreover,

the relevant probability for duty is the natural and probable risks a reasonable

person would likely take into account in guiding practical conduct, and Garcia

provides no indication that private vessels in the BSC were in the practice of

altering their conduct to accommodate the remote probability of

encountering nighttime swimmers. Again, Garcia provides no indication that

any of the private vessels that travel the BSC would reasonably anticipate

causing harm to nighttime swimmers who were trying to avoid detection.

Because the harm of a vessel–swimmer collision was not foreseeable, the

United States owed no duty to Cervantes and is not liable for the asserted

negligence of the Coast Guard crew.

Garcia argues there were facts known to the Coast Guard that made

the vessel–swimmer collision foreseeable. He offers as evidence testimony of

several Coast Guard officials to show that the Coast Guard was aware—and

had actual knowledge—that the entire BSC was used by undocumented

aliens as a point of entry into the United States. However, as discussed below,

the Coast Guard’s awareness of undocumented alien crossings does not

necessarily render the harm to Cervantes foreseeable.

First, Garcia cites the interview summary of Lieutenant Erica Kelly,

relying on the statement that approximately two to four undocumented aliens

49

Garcia asserts that Cervantes was avoiding “nearby patrol boats,” and the

district court observed that she was “trying to cross undetected.” The coxswain of the

vessel on the night of the incident, Brandon Rae, also testified that undocumented aliens

crossing the BSC “don’t want to be seen.”

17

Case: 19-40718 Document: 00515711385 Page: 18 Date Filed: 01/19/2021

No. 19-40718

are apprehended by the Coast Guard each month in the BSC. 50 As an initial

point, this evidence is inherently devoid of context since the interview

summary lacks the questions to which Lieutenant Kelly was responding.

Plus, while the interview summary may show that the Coast Guard knew that

crossings occurred in the BSC, it also indicates that the Coast Guard did not

have knowledge of how many crossings occur, where along the 17-mile-long

BSC these crossings occur, with whom knowledge of these crossings was

shared, and other important details that inform our foreseeability analysis. 51

And finally, Lieutenant Kelly’s interview summary supports our holding that

the Coast Guard does not owe a duty because Lieutenant Kelly indicated that

private vessels in the BSC may not be aware of undocumented alien

crossings:

I’m not aware if there have been any Notices to Mariners

saying this is a high traffic area for migrants. We provide some

of that information to the facilities at working group meetings,

but not for the shrimpers. I don’t believe that anything has been

given to the tug operators. We do not get much information, if

any at all, from the commercial side on UDA activity.

The Coast Guard’s knowledge cannot be attributed to private vessels. And,

if private vessels do not possess knowledge of such crossings, it would not be

foreseeable to these private vessels that undocumented aliens might swim

across the BSC.

Garcia also cites the interview summary of Training Officer

Portwood, who was told that the BSC’s Shrimp Basin was a “point of entry”

50

Lieutenant Kelly is the Chief of Intelligence at Sector Corpus Christi and collects

and reports data on the BSC crossings.

51

Garcia also relies on the interview summary’s statement that the Coast Guard

provided a weekly briefing about crossings. But the interview summary also indicates that

“it is hard to determine who actually is listening to the brief.”

18

Case: 19-40718 Document: 00515711385 Page: 19 Date Filed: 01/19/2021

No. 19-40718

into the United States and that “pretty much the entire BSC is known for

crossings” to support his claim that the harm to Cervantes was foreseeable.

And Garcia also relies on the interview summary of Lieutenant Michael Bell,

who said that he was briefed that undocumented aliens use trash bags, floats,

and other flotation devices. Again, this evidence indicates that the Coast

Guard had knowledge obtained through secondhand Coast Guard briefings

and intelligence reports, but not necessarily firsthand experience of seeing

undocumented aliens swimming across the BSC. 52

Garcia fares no better in establishing that the crew on the night of the

incident had firsthand experience of seeing such crossings. To show actual

knowledge by the crew, Garcia must either provide evidence that the crew

had firsthand experience of actually seeing an individual in the water or that

the crew had previously encountered someone swimming across the BSC at

night. Garcia has not shown either. Instead, Garcia cites the testimony of the

crew’s coxswain, Brandon Rae, who agreed that there was an unspecified

“probability” of nighttime swimmers in the BSC. Rae’s testimony, when

viewed in context, may demonstrate that he had knowledge of Coast Guard

briefings and intelligence reports that crossings occurred along the entire 17-

mile-long BSC. But Rae’s testimony also confirms that he had no firsthand

experience of seeing undocumented aliens swimming across the BSC.

Garcia’s argument that the crew had actual knowledge that would render

harm to nighttime swimmers foreseeable therefore fails. 53

52

See, e.g., In re Great Lakes, 624 F.3d at 210 (contrasting general and actual

knowledge).

53

Garcia also argues that the district court erred in citing our decision in Republic

of France v. United States, 290 F.2d 395, 401 (5th Cir. 1961), which requires proof of actual

knowledge. Garcia argues that Republic of France is “outdated and antiquated” and

distinguishable from this case, but he overlooks that we have repeatedly reaffirmed Republic

19

Case: 19-40718 Document: 00515711385 Page: 20 Date Filed: 01/19/2021

No. 19-40718

Garcia’s cited evidence demonstrates that the Coast Guard was aware

that undocumented alien crossings occurred along the BSC, but this

knowledge was of a general nature. The Coast Guard did not know (1) the

exact number of crossings, (2) the exact location of crossings, or (3) the exact

timing of crossings, among other relevant details. These details are

significant for our foreseeability analysis. The entire BSC is 17 miles long and

approximately 500 feet wide; the Coast Guard patrols of the BSC cover a

route of approximately 34.2 miles. 54 This is a very large area to cover, which

affects our foreseeability analysis. Our decision in Lloyd’s Leasing Ltd. v.

Conoco is instructive. There, after a ship’s tanks cracked, crude oil spilled into

the waters of the Gulf of Mexico and washed ashore approximately 70 miles

west of the site of the ship’s grounding; the claimants were individuals who

suffered damages from oil tracked onto their premises by tourists and

beachgoers. 55 We held that the harm suffered by the plaintiffs was not

foreseeable, emphasizing that the original oil spill occurred 70 miles away. 56

Because the oil spill had to wash ashore on a developed shore to create these

damages of tracking oil, we noted that the amount of developed shoreline was

a small percentage of the total coastline (60 miles out of 340 miles). 57 We

ultimately held that, “[w]hile the appellee might reasonably anticipate that

the oil would probably wash ashore somewhere, it had no reason to have

anticipated that the oil would probably wash ashore in a heavily populated

of France’s actual knowledge requirement multiple times. See, e.g., In re Great Lakes, 624

F.3d at 211–12; Consol. Aluminum Corp., 833 F.2d at 68.

54

United States v. Ruiz-Hernandez, 890 F.3d 202, 206 (5th Cir. 2018).

55

Id. at 1449.

56

Id.

57

Id.

20

Case: 19-40718 Document: 00515711385 Page: 21 Date Filed: 01/19/2021

No. 19-40718

area and then be tracked into businesses and homes.” 58 Similarly, the cited

evidence here may show that the Coast Guard might reasonably have

anticipated encountering undocumented aliens somewhere in the BSC, but

the Coast Guard did not have knowledge to anticipate where exactly in the

BSC the undocumented aliens would be swimming.

Garcia also relies on our opinion in United States v. Ruiz-Hernandez to

argue that the swimmer vessel collision was foreseeable. However, in Ruiz-

Hernandez, we discussed foreseeability from the perspective of Ruiz-

Hernandez: We held that it was foreseeable from a swimmer’s perspective

that vessels would be traveling through the BSC. 59 But our holding there has

little bearing on our duty analysis here because we must analyze foreseeability

from the perspective of a vessel traveling through the BSC at night. Garcia

also relies on Ruiz-Hernandez to argue that we should disregard the manner

in which the harm occurred for purposes of determining foreseeability. 60 But

the circumstances here—swimming at night in a high-traffic waterway that

has minimal lighting and no speed limit—are relevant and bear upon the

existence of an actionable duty.

Garcia also argues that the Coast Guard owes a special duty to

undocumented aliens swimming across the BSC. He first argues there

should be a duty because the purpose of BSC law-enforcement patrols is to

search for, detect, and intercept undocumented aliens. But the specific

functions that the Coast Guard performs has no bearing on the duty

58

Id.

59

890 F.3d at 211 (holding “it was reasonably foreseeable that a person swimming

across a high-traffic ship channel in the dark of night would be struck by a passing ship”).

60

Id. (the “precise nature of the [resulting] injury and the manner of its infliction

is immaterial . . . , so long as the injury is of a type that, in the circumstances, might

reasonably have been expected to occur”).

21

Case: 19-40718 Document: 00515711385 Page: 22 Date Filed: 01/19/2021

No. 19-40718

determination because the duty owed, if any, is equal to that owed by private

vessels, which do not perform such functions. Garcia also argues that the

Coast Guard owes a duty to operate its vessels in a safe manner because its

mission includes person-in-the-water recoveries. But the Coast Guard’s

safety responsibilities do not impose a special duty: Its duty is limited to

ensuring the general safety of maritime facilities and commercial and

recreational vessels in the BSC and in conducting search and rescue

missions. And there is no evidence that the crew was undertaking a search

and rescue as to Cervantes or otherwise providing rescue services in a

manner that would impose a special duty. 61 In the absence of a special duty,

the Coast Guard’s duty is measured in accord with what all private vessels

must do. Therefore, we hold that the Coast Guard did not owe a duty to

Cervantes. Accordingly, the dismissal of Garcia’s negligence claim against

the United States for failure to state a prima facie case was proper.

B

Next, we address Garcia’s products liability claims. Garcia brought

defective design and failure-to-warn claims against Safe Boats and Mercury

Marine under a theory of strict products liability.

Essentially, Garcia asserts two design defects: (1) the design of Safe

Boats’ vessel impaired the vessel-operator’s forward visibility; and (2) the

design of Mercury Marine’s outboard engine lacked propeller guards.

Garcia’s failure-to-warn claims relate to these two asserted product defects.

The district court dismissed the defective design claims against Safe Boats

and Mercury Marine because, applying Restatement (Second) of Torts

61

See Allen v. Walmart Stores, LLC, 907 F.3d 170, 181 (5th Cir. 2018) (noting that

Texas courts “have recognized that a duty to use reasonable care may arise when a person

undertakes to provide services to another, either gratuitously or for compensation”)

(citation omitted).

22

Case: 19-40718 Document: 00515711385 Page: 23 Date Filed: 01/19/2021

No. 19-40718

§ 402A, it found that Cervantes was neither a user nor a consumer and thus

lacked standing to bring maritime products liability claims under the

defective design theory. And the district court dismissed the failure-to-warn

claims because any duty to warn would be owed to the United States, not

Cervantes.

Garcia raises several arguments regarding the dismissal of these

claims. First, he argues that the district court incorrectly construed his

products liability claims as brought against the United States. Next, he argues

the district court erred in dismissing his products liability claims because it

should have applied Restatement (Third) of Torts, not Restatement

(Second) of Torts. Finally, Garcia argues that Safe Boats was not entitled to

immunity based on the government contractor defense.

We address each argument in turn.

1

Garcia first argues that the district court erred in adopting the

magistrate’s R&R in its entirety because it incorrectly construed the

products liability claims as brought against the United States. Admittedly,

the magistrate judge incorrectly characterized Garcia’s products liability

claims as claims brought against the United States, not Safe Boats and

Mercury Marine. However, the district court did not do so: In its order, the

district court correctly viewed the products liability claims as against Safe

Boats and Mercury Marine. Plus, all parties agree that Garcia’s products

liability claims are against Safe Boats and Mercury Marine, not the United

States. This argument thus fails.

2

We next address Garcia’s argument that the district court erred in

applying Restatement (Second) of Torts § 402A. Under § 402A, the

23

Case: 19-40718 Document: 00515711385 Page: 24 Date Filed: 01/19/2021

No. 19-40718

“ultimate user or consumer” who is harmed by an allegedly defective

product may bring suit against the seller of that product. 62 But a casual

bystander may not. 63 Garcia does not dispute that Cervantes was properly

characterized as a casual bystander. Instead, he argues that, for maritime

products liability claims, we should apply Restatement (Third) of Torts § 1,

which more broadly exposes sellers to liability for harm to individuals and

under which Cervantes might have standing to bring products liability

claims. 64

We and the Supreme Court apply the Second Restatement to

maritime products liability cases. 65 Garcia claims that we already recognize

that the Third Restatement supplies the applicable substantive law for

maritime products liability law, but he bases this on our single decision in

Krummel v. Bombardier Corp. 66 There, the user of a watercraft broke his leg

after his foot became trapped in the watercraft; he sued the manufacturer on

defective design and failure-to-warn claims under Restatement (Third) of

Torts § 2(b) and Louisiana Products Liability Act (LPLA). 67 The district

62

Restatement (Second) of Torts § 402A (Am. Law Inst. 1965).

63

See id. § 402A cmt. o (Courts “have not gone beyond allowing recovery to users

and consumers,” and “[c]asual bystanders . . . have been denied recovery.”).

64

Restatement (Third) of Torts § 1 (Am. Law Inst. 1998).

65

See Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 979 (1997); Vickers

v. Chiles Drilling Co., 822 F.2d 535, 538 (5th Cir. 1987).

66

206 F.3d 548 (5th Cir. 2000). Garcia relies on other cases from our sister circuits,

but those cases are distinguishable because they did not address § 1 of the Third

Restatement. See, e.g., Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 860 n.2 (9th Cir. 2011)

(discussing § 2 of the Third Restatement but declining to adopt the Third Restatement for

all cases). Moreover, we are not bound by the decisions of our sister circuits. However, we

are bound by the Supreme Court and our own caselaw, both of which apply § 402A of the

Second Restatement.

67

Krummel, 206 F.3d at 550–51.

24

Case: 19-40718 Document: 00515711385 Page: 25 Date Filed: 01/19/2021

No. 19-40718

court found the manufacturer liable. 68 But we reversed because the district

court based liability solely on the fact that an injury occurred and failed to

perform the risk-utility analysis, as required by both the LPLA and the Third

Restatement. 69 Krummel is distinguishable from this case: It involved claims

by the product’s user, not a casual bystander like Cervantes. So we had no

reason in Krummel to discuss who may bring suits in maritime products

liability cases under § 1—the provision Garcia claims should apply here.

Instead, when we actually have confronted the issue of who has standing to

bring maritime products liability claims, we have applied § 402A of the

Second Restatement. 70 Thus, under our precedent, the Second Restatement,

not the Third, supplies the substantive law for determining standing in

maritime products liability claims. And, to the extent that Garcia argues we

should adopt the Third Restatement, we may not: “Under our rule of

orderliness, we may not overrule a prior panel decision absent an intervening

change in the law, such as a statutory amendment or a decision from either

the Supreme Court or our en banc court.” 71 The Restatement is neither.

Garcia also argues that we should apply Texas law, which permits

bystanders to bring defective products liability claims. 72 But, in maritime

cases, a federal court may only apply state law to “fill the gaps” of maritime

68

Id. at 551.

69

Id. at 552.

70

See, e.g., Vickers, 822 F.2d at 538.

71

Thompson v. Dallas City Attorney’s Office, 913 F.3d 464, 467 (5th Cir. 2019).

72

See Darryl v. Ford Motor Co., 440 S.W.2d 630, 633 (Tex. 1969) (holding

“recovery under the strict liability doctrine is not limited to users and consumers); see also

Hernandez v. Tokai Corp., 2 S.W.3d 251, 257 (Tex. 1999) (reaffirming the holding in

Darryl).

25

Case: 19-40718 Document: 00515711385 Page: 26 Date Filed: 01/19/2021

No. 19-40718

law. 73 Adopting Texas’s broader standing for bystanders would be more than

mere gap-filling: It would be a seismic shift in maritime law. 74

Because § 402A of the Second Restatement supplies the substantive

law in our circuit for maritime products liability claims, the district court

correctly applied it to determine that Cervantes lacked standing to bring

those claims. Therefore, the district court did not err in dismissing Garcia’s

defective design claims against Safe Boats and Mercury Marine.

3

Even assuming Garcia could bring these products liability claims, we

have an additional reason to affirm the district court’s dismissal: Garcia fails

to show that the asserted defective products proximately caused Cervantes’

death. Although the district court did not address proximate cause in its

order, we may affirm the district court’s dismissal on any ground supported

by the record. 75 And the record amply supports a finding that Garcia failed to

show that Safe Boats’ and Mercury Marine’s asserted defective products

were the proximate cause of Cervantes’ fatality.

As the moving parties, Safe Boats and Mercury Marine have the

burden of “identifying each claim or defense—or the part of each claim or

defense—on which summary judgment is sought.” 76 Since Garcia would

ultimately bear the burden of proof on his products liability claims, Safe Boats

73

Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 316–17 (5th Cir. 1987).

74

See also Yamaha, 516 U.S. at 210 (“[I]n several contexts, [the Supreme Court]

ha[s] recognized that vindication of maritime policies demanded uniform adherence to a

federal rule of decision, with no leeway for variation or supplementation by state law.”).

75

Gilbert v. Donahue, 751 F.3d 303, 311 (5th Cir. 2014) (stating that “we may ‘affirm

on any ground supported by the record’” even if “neither the appellant nor the district

court addressed the ground, so long as the argument was raised below”).

76

Fed. R. Civ. P. 56(a).

26

Case: 19-40718 Document: 00515711385 Page: 27 Date Filed: 01/19/2021

No. 19-40718

and Mercury Marine may satisfy their burden “by merely pointing out that

the evidence in the record contains insufficient proof concerning an essential

element of the nonmoving party’s claim.” 77 If they do so, the burden then

shifts to Garcia to show that specific facts exist over which there is a genuine

dispute. 78 But Garcia cannot rely on“[c]onclusory allegations, speculation,

and unsubstantiated assertions” to make this showing. 79

We begin with the relevant law: Maritime law incorporates products

liability, including strict products liability. 80 And to prevail on his strict

products liability claims, Garcia must show that (1) Safe Boats and Marine

Mercury sold the products, (2) their products were unreasonably dangerous

or defective when they left their control, (3) those defects caused Cervantes’

injury, and (4) damages. 81

We next turn to Safe Boats’ and Mercury Marine’s burden: They

must demonstrate that the record is insufficient to establish causation for

Garcia’s products liability claims. Because Garcia asserts two design defects,

we address the evidence for each. First, Garcia asserts that Safe Boats’ vessel

was defective because it had impaired forward visibility at the time of the

incident. The uncontroverted evidence demonstrates that the vessel was

77

Norwegian Bulk Transp. A/S v. Int’l Marine Terminals P’ship, 520 F.3d 409, 412

(5th Cir. 2008).

78

Anderson, 477 U.S. at 250.

79

Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (citation omitted).

80

East River S.S. Corp. v. Transamerica Delavel, Inc., 476 U.S. 858, 865 (1986). See

also Vickers, 822 F.2d at 538.

81

Vickers, 822 F.2d at 538–40; 1 Thomas J. Schoenbaum, Admiralty &

Mar. Law § 5.13 (6th ed. 2019) (citing Restatement (Second) of Torts

§ 402A).

27

Case: 19-40718 Document: 00515711385 Page: 28 Date Filed: 01/19/2021

No. 19-40718

traveling more than 30 knots at the time of the impact. 82 And it is undisputed

that, when the vessel travels at a speed greater than 30 knots, forward

visibility is not reduced. So, whatever limitations may be present in the

vessel’s forward visibility at slower speeds, there is no impairment to the

vessel’s forward visibility when it is navigating in excess of 30 knots, as it was

at the time of the incident. Because the vessel was travelling over 30 knots at

the time of the incident, the asserted impaired visibility defect cannot be—

and is not—the proximate cause of Cervantes’ fatality. And Garcia fares no

better with proving causation for the second asserted defect, the engines’

lack of propeller guards. Based on the undisputed expert testimony, the force

involved in the collision would have resulted in immediate death upon impact

with the vessel even with propeller guards. So the alleged failure to include

propeller guards on the engines cannot be—and is not—the proximate cause

of Cervantes’ fatality.

Since Safe Boats and Mercury Marine meet their burden, the burden

shifts to Garcia. Garcia must show that specific facts exist over which there

is a genuine dispute about proximate cause. Garcia fails to do so. He provides

no evidence that Safe Boats’ and Mercury Marine’s allegedly defective

products proximately caused the incident. Instead, Garcia complains that the

vessel was travelling too fast. But this concerns the operation of the vessel,

not its design. Garcia’s experts concede that the alleged limitation of the

82

Safe Boats’ expert, naval architect Robert Taylor, stated in his declaration and

opined in his report that, at the time of the incident, the vessel was traveling at a speed of

approximately 32–33 knots (36.8–38 mph). The Coast Guard’s investigative report

confirms this speed.

Importantly, for the 30 seconds before the impact, the vessel was fully on plane and

the vessel’s driver had an unobstructed view to the potential location of Cervantes. Only

during the last 2.2 seconds before the impact—when Cervantes would have been too near

the vessel to be visible—was the driver’s forward visibility obstructed.

28

Case: 19-40718 Document: 00515711385 Page: 29 Date Filed: 01/19/2021

No. 19-40718

vessel’s forward visibility does not even come into play in this case. 83

Garcia’s experts also concede that only if the vessel had been traveling at a

slower speed at the time of impact would the propeller guards have

eliminated Cervantes’ injuries. Plus, the experts who evaluated the force

involved in the collision testified that the force would have resulted in

immediate death upon impact with the vessel, even with propeller guards.

Because Garcia fails to provide specific facts showing there is a

genuine dispute about proximate causation, he fails to meet his burden on

establishing proximate causation, so his products liability claims were

properly dismissed by the district court.

4

Garcia also brought failure-to-warn claims against Safe Boats and

Mercury Marine. The district court dismissed his failure-to-warn claims on

the grounds that Safe Boats and Mercury Marine owed the duty to warn to

the United States, not to Garcia; so, assuming there was a breach of that duty,

only the United States could properly maintain negligent failure-to-warn

claims against Safe Boats and Mercury Marine. Garcia does not contest that

no duty to warn was owed to Cervantes—he even admits that Safe Boats’

and Mercury Marine’s duty was owed to the Coast Guard.

Garcia instead argues that the district court erred in treating his

failure-to-warn claims as negligence, rather than strict liability, claims. In his

second amended complaint, Garcia brings his failure-to-warn claim against

83

Garcia’s expert, Robert Swint, testified that the SPC-LE has “very good

visibility up to about 10 [knots] and very good visibility at about 30 [knots].” He confirmed

that an SPC-LE vessel would have no forward visibility issues at speeds above 30 knots.

Similarly, CDI Engineering Solutions generated a report for the Coast Guard that

concluded that, whatever limitations there may be on the vessel’s forward visibility, they

are not present when the vessel is traveling in excess of 30 knots.

29

Case: 19-40718 Document: 00515711385 Page: 30 Date Filed: 01/19/2021

No. 19-40718

Safe Boats under a strict liability theory. But Garcia also brought these claims

under the alternative theory of negligence. Under the negligence theory,

Garcia alleges Safe Boats and Mercury Marines were aware of the products’

defects, had a duty to provide the Coast Guard with a post-sale warning and

instructions, and breached that duty. The district court correctly applied the

Second Restatement and found that any duty to warn was owed to the

products’ user (the United States), not to a bystander (Cervantes). “For the

manufacturer of a product, the general duty of care includes a duty to warn

when the manufacturer ‘knows or has reason to know’ that its product ‘is or

is likely to be dangerous for the use for which it is supplied’ and the

manufacturer ‘has no reason to believe’ that the product’s users will realize

that danger.” 84 Because Safe Boats and Mercury Marines owed no duty to

Cervantes, the district court correctly dismissed Garcia’s negligence failure-

to-warn claims.

Assessing Garcia’s failure-to-warn claims under the alternative strict

liability theory, Garcia’s claims still warrant dismissal because he does not

establish causation. To maintain a failure-to-warn claim in strict liability,

Garcia must present evidence that the absence of adequate warnings caused

Cervantes’ injuries. As with his design defect claims, Garcia does not show

how the presence of warnings about the design of Safe Boats’ vessel or

Mercury Marine’s engines would have prevented Cervantes’ fatality. 85 In

the absence of a showing that the inadequate instructions or warnings caused

84

Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 993 (2019) (quoting

Restatement (Second) of Torts § 388).

85

Garcia points to Restatement (Third) of Torts § 2(c) and relies on our decision

in Krummel. 206 F.3d 548 (5th Cir. 2000). As stated earlier, Krummel is distinguishable,

and we apply the Second Restatement for cases in maritime law.

30

Case: 19-40718 Document: 00515711385 Page: 31 Date Filed: 01/19/2021

No. 19-40718

Cervantes’ fatality, Garcia’s failure-to-warn claims were also properly

dismissed.

5

Finally, Garcia argues that Safe Boats failed to bear its burden on the

affirmative government contractor defense. But because we find that Safe

Boats and Mercury Marine are not liable for either the design defect or the

failure-to-warn claims, we need not address their government contractor

defense.

C

Garcia also brought a gross negligence claim against Safe Boats and

Mercury Marine, seeking exemplary damages. The district court did not

explicitly address this gross negligence claim in its order, but it did dismiss

all Garcia’s “negligence-based claims.” And because Garcia does not raise

the gross negligence claim on appeal—and Mercury Marine and Safe Boats

do not brief this claim—we do not address dismissal of this claim.

D

Finally, Garcia brought wrongful death claims against the United

States, Safe Boats, and Mercury Marine, which the district court dismissed.

Garcia argues that the district court erred in concluding there was no

underlying tort to sustain his wrongful death claims.

Federal maritime law recognizes a wrongful death cause of action. 86

This extends to both negligence and strict products liability. 87 When a non-

seafarer (someone other than a seaman or longshoreman) is killed within

86

See Moragne v. State Marine Lines, Inc., 398 U.S. 375, 409 (1970).

87

See Norfolk, 532 U.S. at 814; Schoenbaum, Admiralty & Mar. Law

§ 8:3.

31

Case: 19-40718 Document: 00515711385 Page: 32 Date Filed: 01/19/2021

No. 19-40718

state waters, the remedies applicable under the general maritime law may be

supplemented by state law remedies, including state statutory wrongful death

and survival remedies. 88 To recover these damages, a plaintiff must prove

that the circumstances of the death meet the requirements of the relevant

state law.

Here, Texas’s Wrongful Death Act is the relevant law. 89 The Act

“applies only if the individual injured would have been entitled to bring an

action for the injury if the individual had lived.” 90 As discussed above, there

are no claims that Cervantes would have been entitled to bring.

Garcia reiterates the arguments he makes for the other claims to assert

that Cervantes would have been entitled to bring personal injury claims. His

arguments fail because they are predicated on the assumption that the United

States owed a duty to Cervantes and that Cervantes had standing to bring the

products liability claims, both of which we rejected.

Accordingly, because Garcia has no sustainable claim against the

United States, Safe Boats, and Mercury Marine, the district court did not err

in dismissing his wrongful death claims.

IV

For these reasons, we AFFIRM the district court’s dismissal of

Garcia’s claims against the United States, Safe Boats, and Mercury Marine.

88

See Yamaha, 516 U.S. at 216 (holding that damages available for the jet ski death

of an individual were governed by state law).

89

Tex. Civ. Prac. & Rem. § 71.002 et seq.

90

Id. § 71.003(a).

32