Petition — Gercey v. United States

n Supreme Court, U. $

FILED |

DEF 9 1976

IN THE [ MICHALL ROUAK, JR, CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. 76-807

MICHAEL B. GERCEY et al,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

\

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

ABRAHAM GOLDSTEIN

1010 Turks Head Building

Providence, Rhode Island

02903

Attorney for the Petitioners

—————

ie

SUBJECT INDEX

Opinions Below .

Jurisdiction ...

Questions Presented.

Statutes Involved.

Statement of the Case.

Reasons for Granting the Writ.

Conclusion ,.

INDEX TO APPENDICES

Appendix A. Decision of Court of

Appeals .

Appendix B. Decision and Judgment

of the District Court .

Appendix C. Statutes Involved .

TABLE OF AUTHORITIES CITED

CASES:

Boston Edison Co. v. Great Lakes

Dredge §& Dock Company and The

United States of America,

(C.A. 1) 423 F.2d 891 (1970).

Coates v. U. S., 181 F.2d 816

(C.C.Aa. §). ses

. A-30

6, 8

ii

TABLE OF AUTHORITIES CITED--Continued

Page

DeBardeleben Marine Corp.

v. United States, 451

P.g@ 368 €C.C.A. GS) - sc ce we eo eo eo &

F & M Shaeffer Brewing

Company v.

United States,

121 F. Supp. 322°(U.S.

eGe Me MeBsP eo sc ee eo see eo e §

McGillic v. U. S., 153

F. Supp.

AS ee

Rayonier Inc.

565 (U.S.D.C.

v. United

States, 5352 U.S. SIS. . . « « 9, LO

United States v. Muniz,

Ct. 1850.

374 U.S. 150, 83 Sup.

U.S. v. Ure,

709 (C.C.A.

225 F.2d

) a ee a ee

| IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

MICHAEL B. GERCEY et al,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioners, Michael B. Gercey et al,

pray that a Writ of Certiorari issue to

review the final Judgment of the United

States Court of Appeals for the First

Circuit entered on August 19, 1976, and

the denial of a petition for rehearing

entered on September 13, 1976.

2

I. OPINIONS BELOW

The Opinion of the Court of Appeals

is included in the Appendix beginning at

Page A-1. The Opinion of the United

States District Court for the District of

Rhode Island is reported at 409 F. Supp.

946 and is included in the Appendix at

Page A-8.

II. JURISDICTION

The Judgment of the Court of Appeals

was entered on August 19, 1976. The

jurisdiction of this Court is invoked un-

der 28 U.S.C. Section 1244(1).

III. QUESTIONS PRESENTED

1. Is the Suits in Admiralty Act to be

so construed as to provide the defense of

"discretionary function" to the United

States?

2. Was there a duty owed to the paying

passenger public by the Coast Guard to

take positive steps to protect them from

unseaworthy vessels whose certificates had

been revoked?

3. Was the Coast Guard negligent in

not inspecting the Comet for a period of

two years, in derogation of the mandate of

Section 391, Title 46, to inspect the hull

of all steam vessels annually?

IV. STATUTES INVOLVED

The relevant provisions of the Act re-

lating to STEAM VESSELS, 46 U.S.C.

Sections 390(a), 390(b), 390(c), 390(d),

391(a), 391(d), 39l1(e), and 435 are set

forth in Appendix C.

V. STATEMENT OF THE CASE

Petitioners are the parents of Steven

Gercey, who drowned when the motor vessel

COMET sank off Point Judith, Rhode Island,

on May 19, 1973. Originally, this suit

was brought as a wrongful death action

against the United States under the

Federal’Tort Claims Act, but the District

Court of Rhode Island and, subsequently,

the United States Court of Appeals for

the First Circuit treated it as arising

under the Suits in Admiralty Act, 46 U.S.C.,

Sections 741 through 752. Petitioners al-

leged that the negligence of the Coast

Guard had brought about the sinking of the

steam vessel COMET and, consequently, the

death of their son, who was one of a char-

ter party of twenty-five which had hired

the vessel for a fishing expedition at a

charge of $10 per person.

The matter was never tried, since the

case in District Court was decided on

Defendant's Motion for Judgment on the

pleadings pursuant to Rules 12(b)(6) and

12(c) of the Federal Rules of Civil Pro-

cedure, on the grounds that the Plain-

tiffs had failed to state a claim upon

which relief could be granted. There-

fore, the District Court utilized the

Complaint and proposed findings of fact

in arriving at its Order granting Defen-

dant's Motion for Judgment. A brief re-

view of pertinent fact is, therefore,

desirable:

4

The vessel COMET was built of wood in

1941, weighed approximately fifteen gross ,

tons, was approximately forty-nine feet in

length, and was powered by a 165 horsepower

diesel engine. In the spring of 1970,

while under the ownership of the National

Youth Science Foundation, the vessel was

leased by the University of Rhode Island

School of Oceanography. It was issued a

new certificate of inspection on July 22,

1970, after correction of a number of de-

fects found therein, including rotted hull

planks. It was next inspected by the Coast

Guard on May 19, 1971, while in drydock,

including once more a hull so rotted that

the inspector was able to penetrate com- ;

pletely the two-inch hull plankings with a

blunt screwdriver. The next day the owner

of the boat notified the Marine Superinten-

dent that no repairs were going to be made

and that the boat was to be placed in "wet

storage" at the Wickford Shipyard, only

several miles from the Point Judith Coast

Guard Station. From the date of inspec-

tion, May 19, 1971, until two years later

when the boat sank on May 19, 1973, the

nama was never looked at by the Coast

Guard.

In the meantime, in September of 1971,

the COMET was purchased by William

Jackson of Cumberland, Rhode Island, and

subsequently used as a charter vessel

during 1972 and 1973, the last date of

course being when the decedent, Steven

Gercey, drowned while a passenger for

hire thereon. The evidence is conclu-

Sive that the sinking of the COMET was

brought about by the vessel breaking a-

part in its hull, separating bow from

stern.

The gravamen of Plaintiffs' Complaint

was that the Coast Guard was obligated to

follow its decertification of the COMET by

taking some measures to see that the boat

was not being used as a passenger boat, and

that the Coast Guard, since it knew that

the boat was being so used, or should have

known, and doing nothing to protect passen-

gers for hire, was negligent.

The District Court, in granting Defen-

dant's Motion, held that Plaintiffs could

not recover because they had not alleged

that the Coast Guard's alleged negligence

was a cause in fact of their son's death.

The Circuit Court of Appeals found this

to be error. However, the Circuit Court

of Appeals affirmed the District Court's

judgment, despite concluding that the Dis-

trict Court was in error, inasmuch as the

Appeals Court held that there was no duty

to adopt a policy of taking positive steps

to protect the public from vessels whose

certificates have been revoked.

For the reasons set forth hereinafter,

the Plaintiffs seek review of the Court of

Appeals action.

REASONS FOR GRANTING THE WRIT

i. THE CIRCUIT COURTS OF APPEAL ARE IN

CONFLICT OVER WHETHER THE "DISCRETION-

ARY FUNCTION" CAN BE UTILIZED BY THE

UNITED STATES IN A SUITS IN ADMIRALTY

ACTION.

\

\

Rule 19 of the Rules of the Supreme

Court of the United States states that

while neither controlling nor fully mea-

suring the Court's discretion, a reason

for granting a writ of certiorari exists

where a Court of Appeals has rendered a

decision in conflict with the decision of

another Court of Appeals on the same matter.

28 U.S.C. Section 2680(a) states that

the provisions of the Federal Tort Claims

Act shall not apply to

"any claim based upon an act or

omission of an employee of the

Government exercising due care

in the execution of a statute

or regulation, whether or not

such statute or regulation be

valid or based upon the exercise

or performance or the failure to

- exercise or perform a discretion-

ary function or duty on the part

of the Federal agency or an em-

ployee of the government whether

or not the discretion involved be

abused."

The question as to whether a discretionary

function exception would be implied under

the Suits in Admiralty Act was decided af-

firmatively in Boston Edison Co. v. Great

Lakes Dredge §& Dock Company and The United

States of America. 133 $24 B51 (CA. TT,

1970).

That action involved a suit in admiralty

against the United States of America and

other co-Defendants. The Plaintiff sought

permission from the United States to in-

stall submarine electric power cables under

the Chelsea River in Massachusetts. A per-

mit was issued providing that the United

States would not be liable for future dam-

ages to the cables from future operations

of the United States in improving naviga-

tion on the River. The Plaintiff installed

the cables. Thereafter, the United States

contracted with Great Lakes Dredge §& Dock

Company for the dredging of the River to

improve navigation. While dredging the

River, the Great Lakes Company damaged the

cables which had been laid by the Plaintiff.

Suit was brought by the Plaintiff against

the United States for negligently supervis-

ing, planning, and conducting the dredging

operation. The Court stated that the deci-

sion of the Secretary of the Army to cause

a dredging of the River was a discretionary

act on his part. The Court referred to the

case of United States v. Muniz, 374 U.S.

150, 83 Sup. Ct. I850. A footnote in the

case stated that,

"Other than the exception for

prisoners' claims, the only re-

maining exceptions having no

counterpart in the present act

barred liability for governmen-

tal activity relating to flood

control, harbor and river work,

and irrigation projects to the

extent that these activities

constitute discretionary func-

tions. The exception of 28

U.S.C. 2680(a) still preserves

governmental immunity. U.S. v.

Ure, 225 F.2d 709 (C.C.A. 9);

Coates v. U.S., 181 F.2d 816

-C.A. ; McGillic v. U.S.,

153 F. Supp. D.C,

D.C.)"

These cases exempted the United States from

liability and negligence, both in planning

and the actual operation of flood control

projects.

Decisions in the United States Dis-<

trict Courts have resolved the matter simi-

larly. F §& M Schaeffer Brewing Company v.

United States, I21 F. Supp. 375 (0-8.

; : nvolved a United States dredging

operation which caused damage to private

lands. The Court held that the Complaint

asserted a claim based upon the exercise or

performance of a discretionary function of

the Federal Government within the meaning

of the exception to the Federal Tort Claims

Act.

The Court of Appeals for the First Cir-

cuit found no inconsistency between the

policy enunciated by the Suits in Admiralty

Act and the Federal Tort Claims Act, having

in mind the exceptions to liability in the

latter Act and the discretionary authority

of the United States to make regulations

for channel improvement.

At least one other circuit, however, has

taken a contrary position to that taken in

Boston Edison Co. v. Great Lakes. The case

of DeBardeleben Marine Corp. v. United

States, 451 ~ 2d 140 mae S) involved a

Suit in admiralty claim in which the Plain-

tiff was injured when his boat's anchor

ruptured a gas pipeline that had been laid

at a prior time pursuant to a United States

permit. The contention was that a govern-

ment publication, the Coast and Geodetic

Survey, did not publish the location of

the pipeline until after the accident. The

Court held, on the law, that the Federal

Government's duty for a faulty marine chart ;

terminates at the time a prudent shipowner

reasonably would have learned of the true

condition through advices in a subsequent

publication. The charts are published by

the Government with the knowledge that they

will be disseminated through reliable chan-

nels to ships and crews and will be relied

upon as accurate portrayals of the waters

covered. Since the shipowners are required

to have charts, what maritime law exacts of

shipowners through decisions of admiralty

courts may hardly be ignored by the execu-

tive agency responsible for the charts.

The United States must, therefore, bear the

burden of using due care in the preparation

and dissemination of such charts and notices.

It is interesting to note that this Hon-

orable Supreme Court has held that under

the Federal Tort Claims Act, the United

States is not immune from liability for the

negligence of employees of the Forest Ser-

vice in fighting fires. Rayonier Inc. v.

United States, 352 U.S. 315. In Rayonier

Inc., a train traveling through land owned

by the United States threw off sparks

which ignited brush negligently allowed to

accumulate at the side of the tracks. The

state in which the land was located and ,

the United States had previously agreed

that the U. S. Forest Service would sup-

press fires in the general area of the

railroad. Surrounding landowners relied

upon the United States to put out fires in

the locale. Shortly after this fire

started, the U. S. Forest Service took com-

plete control of the situation. It was

10

alleged in the suit that the U. S. Forest

Service was guilty of negligent and impro-

per firefighting and, as a result of this

negligence, the fire spread onto the

Plaintiff's land. For several days, there

had been decreasing humidity, accompanied

by strong winds; but, the Forest Service

kept only a few men guarding the fire,

despite the fact that it was smoldering

close to a kinder-dry accumulation of de-

bris. During that time, there were men,

equipment, and a plentiful supply of water

available to the Forest Service and it was

alleged that, if these resources had been

properly utilized, the fire could have been

complete extinguished. A strong wind blew

some sparks from the smoldering embers in-

to the debris accumulation and the fire ex-

ploded, spreading as much as twenty miles

in one direction. The Court stated that

the exceptions to tort liability of the

United States were not relevant to this

case.

"It may be that it is novel and

unprecedented to hold the United

States accountable for the negli-

gence of its firefighters; but,

the very purpose of the Federal

Tort Claims Act was to waive the

Government's traditional, all-

encompassing immunity from tort

actions and to establish novel

and unprecedented governmental

liability."

The question of discretionary function

must evidently be decided on the facts of

each case. Analogies may be drawn between

the Rayonier case and the present case,

insofar as both the U. S. Forest Service

and the U. S. Coast Guard. are responsible

ll

for the safety of persons and property with-

in their respective jurisdictions.

2. THIS HONORABLE UNITED STATES SUPREME

COURT SHOULD DECIDE THE IMPORTANT QUES-

TION OF THE OBLIGATION OF THE COAST

GUARD TO EXERCISE REASONABLE CARE TO

PROTECT THE PAYING PASSENGER PUBLIC

FROM KNOWN UNSEAWORTHY PASSENGER STEAM

VESSELS.

In the instant cause, the District Court

for the State of Rhode Island conceded that

"It might even be that the Coast

Guard was actually negligent in

not developing and implementing

a procedure for following up ves-

sels it had decertified."

However, the District Court based its dis-

missal of the case on the ground that there

was no proximate cause.

The decision of the First Circuit Court

of Appeals was diametrically opposite, since

it decided there was proximate cause, but

there was no obligation for the Coast Guard

to concern itself with vessels it had decer-

tified, albeit they might be dangerously un-

seaworthy, witness the COMET.

Were the Coast Guard given merely inspec-

tion powers only, this interpretation might

be more tenable. However, equal powers of

enforcement buttressed by severe penalty

provisions for violations leads to the in-

escapable conclusion that the inspection

process was to be coupled with a reasonable

follow through to discourage the operation

of unseaworthy vessels, which could

12

conceivably lead to the loss of lives at

sea.

The question of the liability of the

United States for acts and omissions of the

United States Coast Guard has not been def-

initively resolved by this Honorable Supreme

Court. Rule 19 of the Supreme Court provides

that where a court of appeals has decided an

important question of federal law which has

not been, but should be, settled by the

Supreme Court, this Court may, in the exer-

cise of the measure of its discretion, grant

review on writ of certiorari.

4

—_—

13

CONCLUSION

The question of whether acts and omis-

sions of the United State Coast Guard can

subject the United States to liability un-

der suits in admiralty, as well as the

question of the liability of the United

States for the exercise of a discretionary

function under the Suits in Admiralty Act,

are questions of Federal law which have not

been, but which should be, decided by this

Court. The latter question has been the

subject of conflicting decisions in the var-

ious circuit courts of appeal for the United

States and has, thus, assumed the character

of a special and important issue which, in

sound judicial discretion, ought to be re-

viewed by this Honorable Supreme Court on

writ of certiorari.

For the foregoing reasons, it is urged

that this Petition for Writ of Certiorari be

granted.

Respectfully submitted,

raham Goldstein

Attorney for Petitioner

November llth, 1976

4

APPENDICES

A-1

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 76-1137

MICHAEL B. GERCEY, et al,

PLAINTIFFS, APPELLANTS,

v.

UNITED STATES OF AMERICA,

DEFEXDANT, APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[409 F. Supp. 946 (D. R.I. 1976)]

(How. Raymonn J. Permne, U.S. District Judge)

Before Corrin, Chief Judge,

McEntee and Campneir, Circuit Judges.

Abraham Goldstein for appellants.

Mark N. Mutterperl, Attorney, Appellate Section, Civil Division, Department

of Justice, with whom Rez E. Lec, Assistant Attorney General, Lincoln C.

Almond, United States Attorney, and Robert Kopp, Attorney, Appellate Section,

Civil Division, Department of Justice, were on brief, for appellee.

August 19, 1976

Corrin, Chief Judge. Plaintiffs-appellants are the parents

of Steven Gercey, who drowned when the motor vessel

COMET sank off Port Judith, Rhode Island on May 19, 1973.

They instituted this wrongful death action against the

United States under the Suits in Admiralty Act, 46 U.S.C.

§§ 741-52,! alleging that the Coast Guard had, by its negli-

1 The case was originally brought under the Fedcral Tort Claims Act, 26

U.8.C. §§ 2671-80, but the district court, relying upon Roberts v. United States,

498 F.2d 520 (9th Cir. 1974), treated it as arising under the Suits in Admiralty

Act. See also Beeber v. United States, 338 F.2d 687 (3rd Cir. 1964). Neither

party challenges this ruling upon appeal.

A-2

2 GERCEY UV. U.B.

gence, caused their son’s death. They contended that the

Coast Guard had revoked the COMET’s certificate to

operate as a ‘‘passenger-carrying vessel’’ because it

found the vessel to be unsafe, but that it failed to take posi-

tive, feasible steps to protect individuals like their son from

the danger of voyaging on the vessel. The district court, on

the basis of the pleadings and proposed findings of fact,

granted defendant’s motion for judgment on the pleadings,

holding that plaintiffs had failed to allege that defendant’s

negligence was a cause-in-fact of decedent’s death. 409

F. Supp. 946 (D. R.I. 1976). We affirm, although on a differ-

ent ground.

The facts are relatively few and undisputed. The COMET,

a 30 year old, 49 foot wooden motor vessel, capable of carry-

ing up to 39 passengers, failed to pass the Coast Guard in-

spection in 1971, principally because its hull was found to be

rotten. The Coast Guard accordingly removed its certificate

to operate as a passenger carrying vessel. Without this cer-

tificate the COMET could not lawfully carry six or more

passengers for hire, see 46 U.S.C. § 390c, and, if it were to

do so, it and its master would be liable for up to $1000 in

fines. See id. § 390d. The lack of such a certificate, however,

does not preclude a vessel from otherwise operating law-

fully.

Following the revocation of the COMET’s certificate,

plaintiffs allege that the Coast Guard took absolutely no

follow up measures to protect the fee paying public from the

danger of riding on the vessel. According to plaintiffs, the

sole action taken by the Coast Guard was to remove the cer-

tificate from the COMET — a 4” by 6” piece of paper which

presumably had been displayed ‘‘in a conspicuous place on

the vessel where it [was] most likely to be observed by pas-

sengers’’, see id. § 400 — and file it in Washington.

In the fall of 1971, the COMET was sold to one William

A-3

UPINION OF THE COURT 3

Jackson, who, possibly out of ignorance of both the con-

dition of the vessel and the requirements of federal law, pro-

ceeded to carry large groups of fee paying passengers on it

during 1972 and 1973. During this period, the COMET made

trips to and from the port of Galilee, at the head of which

was a Coast Guard station. The record reflects that no Coast

Guard personnel were aware either of the vessel’s move-

ments or that it had been decertified. On May 19, 1973,

Jackson took a large group of fee paying passengers, includ-

ing decendent, on a fishing trip off the coast of Rhode Island.

Although the weather and sea conditions were alleged to be

quite normal, the COMET, some five miles off the coast,

split in two and sank. Decedent, Jackson, and fifteen other

passengers perished.

The theory upon which plaintiffs seek to recover can be

stated simply: they maintain that the Coast Guard is under

either a statutory or common law duty to take reasonable

steps to protect the fee paying public from vessels which the

Coast Guard has refused to certify and which it knows to be

unsafe. Plaintiffs list half a dozen actions which they allege

the Coast Guard could easily have taken and which, in their

view, would have substantially increased the likelihood that

fee paying passengers like their son would not have voyaged

on the COMET. These include: (1) informing the public of

the condition of all such vessels by either a public notice or

a sign placed on the vessel; (2) periodically checking to

determine if such vessels are being used contrary to § 390c;

(3) informing any new purchaser of the condition of the

vessel; and (4) notifying ali local Coast Guard units which

vessels are decertified. Although the district court thought

it unlikely that the Coast Guard could be held liable in tort

for injuries proximately caused by its failure to take these

measures, it did not reach this issue. It held instead that the

plaintiffs could not recover since they had not claimed that

A-4

4 GERCEY Vv. U.S.

the Coast Guard’s alleged negligence was a cause-in-fact of

their son’s death. This we think was error.

In deciding that plaintiffs had failed to allege a sufficient

causal connection between the alleged acts of nonfeasance

and decendent’s death, the district court applied too strin-

gent a standard. It apparently believed that plaintiffs could

not go to the jury on the issue of causation-in-fact unless

they alleged that the implementation of the measures they

propose would have prevented the COMET from sinking

with fee paying passengers aboard. This is too harsh a test.

Causation-in-fact is almost always a jury question. To sur-

vive a motion for judgment on the pleadings, plaintiffs need

only have shown that reasoning minds could conclude that

the Coast Guard’s alleged misconduct was a substantial fac

tor in producing plaintiffs’ injury — which was not the sink-

ing of the vessel per se, but their son’s death. See W. Pros-

ser, Handbook of the Law of Torts 289 (4th ed. 1971). Plain-

tiffs clearly made this showing. Reasonable men could con-

clude that, if the Coast Guard had performed but one of the

measures plaintiffs suggest — requiring that decertified

vessels display notices informing the public of its condition

— decedent probably would not have gone aboard the vessel

and, thus, would not have drowned.2 Although we under-

stand why the principles of judicial economy and restraint

led the district court, when faced with the novel question of

the Coast Guard’s liability, to prefer this narrow ground of

decision, we believe we must reach the broader question of

the Coast Guard’s liability.

In addressing this question, we note at the outset that the

Coast Guard’s alleged negligence lies in failing to adopt

2 Defendant suggests that the district court’s decision was based upon the

plaintiffs’ failure to allege specifically that thie type of causal connection

existed. Such a position seems to us unduly technical and contrary to the

Sr that pleadings be construed to do ‘‘ substantial justice’’. Fed. R. Civ.

. 8(f).

A-5

OPINION OF THE COURT 5

a policy of taking positive steps to protect the public from

vessels whose certificates have been revoked, not in imper-

fectly executing a federal program established either by an

act of Congress or a federal regulation. Compare Indian

Towing Co. v. United Btates, 350 U.S. 61 (1955) and Coast-

wise Packet Co. v. United States, 398 F.2d 77 (ist Cir. 1968).

Neither the Congress nor the Coast Guard has explicitly

required that positive action be taken to protect the public

from such vessels. Congress has mandated only that the

Coast Guard periodically conduct certain types of inspec-

tions of passenger carrying vessels, see 46 U.S.C. $4 390a,

391, revoking the certificates of vessels which fail to meet

federal requirements. Jd. $4 390ce(c), 391. Although Con-

gress plainly contemplated that the Coast Guard would take

certain specific measures to induce compliance with federal

law, see id., §§ 390d, 435, it neither expressly nor by neces-

sary implication imposed a duty upon the Coast Guard to

devise, fund, staff, and implement the kind of follow-up

system which plaintiffs believe is required by ordinary

prudence. Although we agree with plaintiffs that the Coast

Guard has the discretionary authority to adopt such a fol-

low-up program, it has not done so.

The decision whether to institute such a policy, in our

view, involves a basic policy judgment as to how the public

interest may best be promoted. The Coast Guard has limited

resources and a myriad of regulatory responsibilities. A de-

termination whether it would be in the public interest to make

a major commitment of the Goast Guard’s resources to the

creation of a follow-up system would require consideration

‘of a host of factors: how effective the present enforcement

measures — whatever they are—have been; how much

more protection would be afforded the fee paying public if

such a system were created; and, finally, whether the in-

creased protection would be sufficient to warrant both the

A-6

6 GERCEY Vv. U.S.

commitment of the Coast Guard’s resources and the possible

diversion of such resources from other regulatory activities.3

We need not attempt to strike the balance between these

perhaps competing interests. The critical question for our

consideration is not whether we agree with the plaintiffs’

contention that ordinary prudence requires that the Coast

Guard take broad, positive measures to protect the fee pay-

ing public from decertified vessels. Rather, it is whether a

federal court has the power to impose liability on the Coast

Guard for failing to make, and implement, the basic policy

decision that the public interest requires its limited re-

sources be committed to such a program. We conclude that

we have not been conferred that power by the Suits in

Admiralty Act. a

The Suits in Admiralty Act, of course, effects a waiver of

the sovereign immunity of the United States for certain

maritime claims against the United States. Unlike the Fed-

eral Tort Claims Act, see 28 U.S.C. § 2680(a), the Suits in

Admiralty Act does not contain an express exception 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’. See

Griffin v. United States, 500 F.2d 1059, 1064 (3d Cir. 1974) ;

K. Davis, Administrative Law Treatise § 25.08 (1976 Supp.).

Althongh the Suits in Admiralty Act contains no express

exception, we think that sound principles demand that the

act be construed as subject to such discretionary function

exception.4 See K. Davis, supra, § 25.13 (1958 ed. & 1970

3 The magnitude of this tragedy prompts us to observe that there may be

measures short of a comprehensive follow-up system which might, at little cost,

avert some disasters. For example, if Coast Guard stations were advised of

passenger carrying vessols which had reeently been decertified, officials might

be able to identify obvious violators within their area of surveillance. We would

hope that the events giving rise to this case would prompt a search for feasible

means to lessen the likelihood of their reoccurrence.

4 This is only the second time, to our knowledge, that a court has addressed

the question whether a ‘‘discretionary function’’ exception should be implied

A-7

OPINION OF THE COURT 7

Supp.) ; L. Jaffe, Judicial Control of Administrative Action,

244 n. 43 (1965). Compare King v. Seattle, 84 Wash. 2d 239,

525 P.2d 228 (1974). 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 judg-

ments were to cause private injuries. That, in our view,

would be an intolerable state of affairs, see United States v.

Sandra & Dennis Fishing Co., 372 U.S. 189, 195 (1st Cir.

1967), and we decline, in the absence of an express Congres-

sional directive to the contrary, to construe this waiver of

sovereign immunity as providing the federal court: with

that power. Accordingly, we refuse to consider imposing

liability on the Coast Guard for failing to adopt a compre-

hensive program of protecting the public from decertified

vessels.

Affirmed.

under the Suits in Admiralty Act. We earlier assumed, without discussion, that

such an exception did y to the act. See Boston Edison Co. v. Great Lakes

Dredge ¢ Dock Co., 423 F.2d 891 (1st Cir. 1970). A second court, however, bas

taken a contrary position, see De Bardeleben Marine Corp. v. United States, 451

F.2d 140, 146 & nm. 15 (5th Cir. 1971) (dictum), relying on cases holding that

operating a man-of-war, which in the court’s view was surely discretionary,

could subject the United States to liability under the act. The validity of this

conclusion depends on the premise that operating a vessel is a ‘‘ discretionary

function’’ within the meaning of that exception to the waiver of sovereign

immunity. Our view is that, like fighting a fire, see Rayonier, Inc. v. United

States, 858 U.B. 315 (1957), operating a vessel does not involve a basic policy

judgment of how best to promote the public interest and, as such, is not a

‘*@scretionary function’’. So viewing the premise in De Bardeleden Marine

Corp., we cannot accept the court’s conclusion.

Adm. Office, U. 8. Courts — Thayer-Dearing Company Legal Printers Boston

A-8

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

Civil Action No. 74-29

STEVEN GERCEY, Decedent,

MICHAEL B. GERCEY and MADELINE M. GERCEY,

Parents and next-of-kin,

Plaintiffs,

ws «

UNITED STATES OF AMERICA,

Defendant.

OPINION

February 6, 1976

PETTINE, Chief Judge. On May 19, 1973,

the Motor Vessel COMET sank off Point

Judith, Rhode Island, with a loss of six-

teen lives, including that of Steven Gercey,

the plaintiff's decedent. The Plaintiffs in

this wrongful death action allege that the

United States Coast Guard failed to use due

care in carrying out its statutory duty of

insuring the safety of passengers upon ves-

sels that are required to be inspected and

certified as safe for passenger travel and

is therefore liable to the decedent's estate

in an amount over $500,000. That matter is

presently before the Court on defendant's

motion pursuant to Rules 12(t)(6) and 12(c)

of the Fed.R.Civ.P. for judgment on tte

Ae Y

pleadings, on the grounds that plaintiffs

have failed to state a claim upon which re-

lief can be granted.

1

The proposed findings of fact of both

the plaintiffs and the defendant agree on

most major points. The vessel COMET was

built of wood in 1941, weighed 15 gross tons,

was about 49 feet in length, and was powered

by a 165 horsepower diesel engine. In the

spring of 1970, while under the ownership of

the National Youth Science Foundation, the

vessel was leased by the University of Rhode

Island School of Oceanography. Upon enter-

ing Rhode Island waters and a new Coast

Guard inspection zone, the COMET was inspec-

ted by an officer of the Coast Guard Marine

Inspection Office and after correction of a

number of defects was found to have met all

the requirements for a new certificate of

inspection on July 22, 1970. The COMET was

next inspected by the Coast Guard on May 19,

1971, while the vessel was in dry dock. A

number of defects were found, and the plain-

tiffs allege that the inspector was able to

penetrate completely the hull plankings with

a blunt screwdriver. The certificate of in-

spection was removed from the vessel and on

the following day, the University of Rhode

Island informed the Marine Superintendent

that they did not intend to make the neces-

sary repairs and that the vessel would be

~~ ‘lla "wet storage" at Wickford Ship-

yard.

In September of 1971 the COMET was pur-

chased by William Jackson of Cumberland,

Rhode Island, apparently for use as a

charter vessel, and plaintiffs allege that

A-10

the boat was so used during the summer of

1972. On May 19, 1973, a group of people,

which included the decedent, STEVEN GERCEY,

chartered the COMET for a fisning trip.

After being out of port for about forty-five

minutes the vessel broke up and sank. Among

those lost were STEVEN GERCEY and the boat's

owner and captain, William Jackson. The

cause of the disaster has not been established,

although the plaintiffs allege that the wea-

ther and sea conditions were such they they

did not contribute to the accident.

Il

The plaintiffs purport to bring this ac-

tion under the Federal Tort Claims Act, 28

U.S.C. sec. 2671-2680, and allege jurisdic-

tion under 28 U.S.C. sec 1346(b). The

defendant concedes that this Court has juris-

diction over this action but contends that

the Federal Tort Claims Act is not applicable

to this case, which, they argue, must be

based on admiralty jurisdiction under 28

U.S.C. sec. 1333. Determination of the pro-

per basis of jurisdiction in this case will

determine whether Rhode Island or oepere:

substantive law is to be applied. +/ Under

the Federal Tort Claims Act, the applicable

law is that of the state in which the act or

omission complained of occurred, 28 U.S.C.

sec. 2674; Richards v. United States, 369

U.S. 1 (1962); United States v. Schultz, 282

F.2d 628 (lst Cir. 1960), cert. denied 365

U.S. 817. Suits in admiralty, on the other

hand, are governed by tederal substantive

and procedural law, Kermarkek v. Compagnie

Generale Transatlantique, 4 2

1959; St. Hilaire Moye v. Henderson, 496

F.2d 973-(8th Cir, 1072).

A-11l

The Federal Tort Claims Act expressly

excludes from its coverage any claim for

which a remedy is provided by the Suits in

Admiralty Act, 46 U.S.C. sec. 741-752, or

the Public Vessel Act, 46 U.S.C. sec. 781-

790. 28 U.S.C. sec. 2680(d). The plain-

tiffs argue, however, that this does not

mean that all maritime or admiralty courts

are beyond the coverage of the Federal Tort

Claims Act, since, they claim, these two

admiralty statutes do not embrace all mari-

time torts. In particular they cite Moran

v. United States, 102 F.Supp. 275, 277 (D.

Conn. IS51), where the Court wrote, "Mari-

time torts of the employees of the United

States, as distinguished from torts of ves-

sels of the United States, were intended to

be covered by the Federal Tort Claims Act."

In 1960, however, the Suits in Admiralty

Act was amended, and as the Court of Appeals

for the Ninth Circuit explained in Roberts v.

United States, 498 F.2d 520, 525-26 (1974),

the language added means that torts of

government employees as well as government

vessels are to be covered by the ‘a

courts' admiralty jurisdiction: 2

"The District Court, believing

that the admiralty statutes ex-

tended only to claims involving

United States vessels or cargo

concluded that the appellees’

maritime claim was maintainable

solely under the FTCA. Prior

to 1960, Congress amended sec-

tion 742 of the SIA by deleting

the language which restricted

the statute to claims involving

merchant vessels and by substi-

tuting a broad new jurisdictional

Statement:

A-12

'In cases where if such vessel

were privately owned or opera-

ted, or if such cargo were pri-

vately owned or possessed, or

if a private person or property

were involved, a proceeding in

admiralty could be maintained,

any appropriate nonjury pro-

ceeding in personam may be

brought against the United

States. .." Pub.L.No. 86-770,

sec. 3, 74 Stat. 912.

(Emphasis Added)

The addition of the rarase ‘or

if a private person. . .were

involved' has been“interpreted

by a majority of courts as a

legislative attempt to bring

all maritime torts asserted

against the United States with-

in the purview of the SIA. See

De Bardeleben Marine Corp. v.

United States, 451 F.2d ri

(Sth Cir. 1971); Richmond Marine

Panama, S.A. v. United States

350 F. Su a | " -

D.N.Y. 1972); Tankrederiet

Gefion A/S v. United States, 241

F.Supp. 83 (£E.D. Mich. 1964);

Contra, J. W. Petersen Coal §&

Oil Co. v. United States, 323

F.Supp. 1198 (N.D. TII. 1970).

Moreover, this expended inter-

pretation of the SIA appears to

conform with retrospective

Congressional understanding of

the Act, as the court in

Richmond Marine Panama, S.A. v.

United States, supra, notes:

A-13

"Although subsequent Congres-

sional explanation of the

meaning of a statute is not

binding on the courts, it is

interesting to note, neverthe-

less, that a Senate Report of

August 17, 1972 explained that

the 1960 amendment extends jur-

isdiction under the Suits in

Admiralty Act ‘to the full

range of admiralty cases which

might have been maintained had

a private person or peoperty

been involved rather than the

Government or its agents and

employees or property.' Senate

Report No. 92-1079, 92d Cong.,

2d Sess., 1972, 9 U.S. Code Cong.

and Admin. News, pp. 4045, 4050."

Id. 350 F.Supp. at 1220, note.

It appears then that all the courts that

have construed the 1960 amendment, with the

exception of a district court in Illinois

in J. W. Peterson Co. § Oil Co. v. United

States, 325 F.Supp. (N.D.TI1. 1970), upon

which the plaintiffs heavily rely, have

held that the maritime courts of government

employees are now covered by the Suits in

Admiralty Act. This Court is persuaded

that the majority view on this question is

the correct one, particularly in light of

the fact that the Peterson decision was an

interlocutory decision which the United

States never appealed because the plaintiff

Peterson's case was ultimately dismissed on

the merits by the District Court. Defen-

dant's Memorandum in Support of Motion at

2. Thus, the plaintiffs' claim in this case

must be heard in admiralty, where it can be

brought under 46 U.S.C. sec. 742, and cannot

be heard under the Federal Tort Claims Act,

A-14

since it is barred by the exception for

claims in admiralty, 28 U.S.C. sec.

2680(d).

III

The plaintiffs contend that the sub-

stantive basis of the defendant's lia-

bility lies in the duty imposed upon

the Coast Guard by statute to inspect

passenger vessels and certify that they

are seaworthy and safe. 46 U.S.C. sec. 390,

390a - 390d instructs the Secretary of the

Executive Department in which the Coast

Guard is operating to cause each small pas-

senger carrying vessel 3/to be inspected

at least once every cares years for sea-

worthiness and safety. *%/ No such vessel

may operate without a certificate of inspec-

tion, 2/and violators may be fined up to

$1,000 for each violation, for which sum

the vessel may be seized. 6/The defendant

concedes that these provisions were appli-

cable to the COMET but contends that the

Coast Guard was diligent in the matter of

inspection and properly decertified the

vessel when the occasion required.

The plaintiffs do not appear to con-

test the defendants on this point, but they

contend that the defendant had a duty not

only to inspect the vessels and to certify

or decertify them but also to enforce these

provisions. The Coast Guard was negligent,

they assert, in failing to have some rudi-

mentary mechanism to protect the paying pas-

senger public from unseaworthy vessels after

their decertification. The statutes them-

selves, the plaintiffs argue, speak of some

duty of ongoing enforcement to follow-up on

the inspections of certified vessels and in

A-15

particular to see that decertified vessels

are not used to carry passenger, citing 46

U.S.C. sec. 435:

"435. Re-inspections and notice

for repairs--Enforcement of re-

quirements.-- In addition to the

annual or biennial inspection,

the head of the department in

which the Coast Guard is operating

shall require the Coast Guard to

examine, at proper times, inspected

vessels arriving and departing to

and from their respective ports, so

often as to enable them to detect

any neglect to comply with the re-

quirements of law, and also any de-

fects or imperfections becoming ap-

parent after the inspection afore-

said, and tending to render the

navigation of such vessels unsafe;

and if there shall be discovered any

omission to comply with the law, or

that repairs have become necessary

to make such vessel safe, the master

shall at once be notified in writing

as to what is required. All inspec-

tions and orders for repair shall be

made promptly. When it can be done

safely, repairs may be permitted to

be made where those interested can

most conveniently do them. And when-

ever it is ascertained that any ves-

sel subject to the provisions of this

title or Acts amendatory or supplemen-

tary thereto, has been or is being

navigated or operated without comply-

ing with the terms of the vessel's

A-16

required to cease navigating

at once and to submit to re-

inspection; and in case the

said orders shall not at once

be complied with, the vessel's

certificate of inspection shall

be revoked, and the owner, mas-

ter- or agent of said vessel

shall immediately be given no-

tice, in writing, of such re-

vocation; and no new certifi-

cate of inspection shall be

again issued to her until the

provisions of this title or

Acts amendatory or supplemen-

tary thereto have-been complied

with. Any vessel subject to

the provisions of this title or

Acts amendatory or supplementary

thereto operating or navigating

or attempting to operate or navi-

gate after the revocation of her

certificate of inspection and

before the issuance of a new cer-

tificate shall, upon application

by a department or agency charged

with the enforcement of such title

or Acts, to any district court of

the United States having jurisdic-

tion and by proper order or action

of said court in the premises, be

seized summarily by way of libel

and held without ee of re-

lease by bail or bond until a pro-

per certificate of inspection

shall have, een issued to said ves-

oe ee” &

certificate or inspection. . .the The plaintiffs argue that the Coast Guard

owner or master of said vessel shall was —s in carrying out this duty to

be ordered to correct such unlawful enforce the inspection statutes cited above

conditions, and the vessel may be because after decertifying the COMET the

A-17

Coast Guard took absolutely no follow-up

measures to insure that the decertified

vessel would not be illegally used to car-

ry passengers. The sole action taken by

the defendant, according to the plaintiffs,

was to remove from the COMET a4" x 6"

piece of paper and file it in Washington,

D.C. It took none of the actions that a

reasonable man would have undertaken to

protect the paying passenger public whose

7 Congress entrusted to the Coast

Guard.

Plaintiffs list a half dozen actions

that could have been reasonably taken by

the Coast Guard, any one of which could

possibly have prevented the tragic loss

of life that occurred on May 19, 1973

when the COMET sank. The Coast Guard

could have 1) required the COMET's for-

mer owner or the marina owner to inform

it of any change of ownership of the ves-

sel; 2) informed the new purchaser of the

condition of the vessel and inquired of

him his purpose in acquiring the vessel;

3) informed either the general public or

the specific passengers by way of a pub-

lic notice or a sign of the condition of

the vessel; 4) notified local Coast Guard

units that the vessel had been decerti-

fied; 5) periodically revisited the ves-

sel to see if it was in use or at least

called the shipyard to check on its status;

or 6) seized the vessel under the authority

of 46 U.S.C. sec. 435.

There can be no doubt that several of

these courses of action are eminently rea-

sonable and perhaps might have played a

role in preventing the events of May 19,

1973. It is noteworthy that one of the

recommendations from the Marine Inquiry

. A-18

Board's preliminary report is that the

Coast Guard develop some mechanism where-

by it can maintain a comprehensive file

by which it can keep track of decertified

vessels. Plaintiffs Supplemental Memoran-

dum at 14-15. It might even be that the

Coast Guard was actually negligent in not

developing and implementing a procedure

for following-up on vessels it had decerti-

fied. But such a conclusion would not

necessarily mean that the plaintiffs had

stated a claim in this case for which re-

lief can be granted.

The plaintiffs have stated a novel claim

for which there is no precedent under the

Coast Guard inspection statutes on which

they rely, and if found to be implied by

the statutes, such a cause of action could

have wide-ranging effects on admiralty jur-

isdiction and on the principles of govern-

mental liability in general. While I do

not rule out the possibility that such a

casue of action could be found to exist, I

must note that I do not find the authority

the plaintiffs have cited in support of

their position to be particularly compel-

ling.

The essence of plaintiffs' argument is

simply that a) defendant has a statutory

duty to enforce the inspection statutes;

b) defendants did not reasonably carry out

this duty; c) therefore defendants are lia-

ble for injuries resulting from this breach

of duty. It is a general principle of

governmental tort liability that a govern-

mental unit is not liable for failure to en-

act or enforce an ordinance. 47 Am.Jur. 2d,

Municipal, School, and State Tort Liability,

sec. 144. While there may be exceptions to

this proposition, plaintiffs have provided

A-19

meager justification for invoking any such

exception in this context. Even if the

Coast Guard were under an absolute duty,

as plaintiffs contend, to enforce affirma-

tively the inspection statutes, the Coast

Guard's choice of means by which to carry

out that duty would be a completely dis-

cretionary, policy-making decision, and

governmental agencies are generally free

from liability resulting from such deci-

sions. Cf. Federal Tort Claims Act, 28

U.S.C. sec. 2680(a); Dalehite v. United

States, 346 U.S. 15 (1953).

In an effort to overcome what I would

characterize as a strong presumption against

liability in the present context, the plain-

tiffs cite several cases which they contend

support their allegations that the defendant

had a statutory duty to warn the new pur-

chaser, the passengers, or the public in

general about the condition of the COMET,

and that governmental agencies can be held

liable for negligently carrying out a duty

to inspect. Plaintiffs cite the case of

Indian Towing Co., Inc. v. United States,

+ - in support of their

claim of defendant's duty to warn. Accord-

ing to the Court of Appeals for this Cir-

cuit, however, the duty to warn in Indian

Towing developed out of the principle “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., ‘ ’

{Ist Cir. 1967).

In the instant case, there is little

support for the proposition that the new

purchaser, the passengers, or the general

public relied either on an expectation that

A- 20

they would be warned or on a belief that

all passenger-carrying vessels in opera-

tion met Coast Guard safety requirements.

Plaintiffs also cite a series of cases, in-

cluding a recent Rhode Island decision,

Buszta v. Souther, 232 A.2d 396, 102 R.I.

) that hold inspectors liable to

third parties injured as a result of negli-

gent inspection despite the absence of

privity of contract between the third par-

ty and the inspector. In the case at bar,

however, there is no allegation that the

Coast Guard's original inspection of the

COMET was deficient, only that the defen-

dant failed to follow through with subse-

quent enforcement of the decertification,

a factor not present in the plaintiffs’

negligent inspection cases.

Neither party, even after a request by

the Court for additional memoranda, has

briefed the question of liability for fail-

ure to enforce the inspection statutes with

much imagination. There are several analo-

gous areas that come to mind the exploration

of which could perhaps have shed light on

the present question, but neither side has

offered any discussion of them. For example,

is a state vehicle agency liable if a car

that has failed to pass a state safety in-

spection illegally returns to the road and

causes an accident in which third parties

are injured? Is the Federal Aviation Ad-

ministration liable if insufficient follow-

up of its safety inspection allows an unsafe

airplane to be illegally used by an airline

and the plan subsequently crashes? Is a

local building commissioner liable for in-

juries caused when an apartment building

that has been repeatedly cited for viola-

tions of the fire code but never ordered

closed catches fire?

A-21

It is not necessary at this point, how-

ever, to explore fully these questions or

reach a final determination of whether the

plaintiffs have a cause of action against

the United States for its failure reason-

ably to enforce the inspectior statutes,

for it is the conclusion of this Court that

even if the Coast Guard breached such a

duty to the plaintiffs, it would not be pos-

sible for the plaintiffs to establish that

such breach was the proximate cause of their

injuries.

IV

The defendant has argued in its memoran-

da that even if the Coast Guard were negli-

gent, the action of the boat owner in taking

out passengers for hire in a vessel he knew

or should have known was without Coast

Guard certification was such an intervening

act of negligence as to preclude liability

of the United States. I do not agree. It

is literally hornbook law that a defendant

may be held liable in the presence of a

major intervening cause if the interven-

tion of the later cause is a significant

part of the risk involved in the defen-

dant's conduct. The defendant, therefore,

is to be held liable if the intervening

cause is "foreseeable". W. Prosser, Law

of Torts, sec. 44 at 272 (4th Ed. 1971).

The same is true even if the intervening

Cause is an intentional or criminal act if

it is one the defendant might reasonably

anticipate and against which it would be

required to take precautions. Id. at 275.

In the present case it is likely that the

plaintiff would be able to prove at trial

that the Coast Guard could have reasonably

anticipated that if it inadequately

A-22

enforced the inspection statute vessel

owners like Mr. Jackson might illegally

carry passengers on decertified vessels.

In that event the intervening cause of

Mr. Jackson's own negligence would not be

sufficient to insulate the United States

from liability.

In order to reach such a point, how-

ever, the plaintiffs would first have to

prove that the Coast Guard's alleged negli-

gence was a major causal link in the events

culminating in the sinking of the COMET.

For as Professor Prosser points out, the

problem of intervening cause is not one of

causation at all, since it doer not arise

until after causation has already been es-

tablished. Id. at 270. It is the conclu-

sion of this Court that the plaintiffs have

failed to clear this initial hurdle. Based

on the plaintiffs’ pleadings, proposed find-

ings of fact, and memoranda of law, and

viewing all the facts presented in the

pleadings and the inferences to be drawn

therefrom in the light most favorable to

the plaintiffs, see Wright and Miller,

Federal Practice and Procedure: Civil sec.

1368 at 690, I can find no showing that the

alleged negligence on the part of the Coast

Guard in enforcing the inspection statutes

was the proximate cause of the plaintiffs'

injuries. The plaintiffs have therefore

failed to state a claim for which relief

can be granted.

The notion of proximate cause is a con-

fusing concept in tort law and one often

utilized as a means of disguising policy

judgments that have no connection with

questions of causation at all. Prosser,

supra, sec. 41 at 237. Nevertheless,

white notions of proximate cause are

A-23

sometimes used to limit liability even

where causation in fact can be demonstrated,

e.g., where there is an intervening cause

sufficient to insulate a negligent party

from liability, the converse is not true:

barring the application of principles of

strict liability, there can be no finding

of proximate cause, and hence no liability,

where the defendants negligence was not a

cause in fact of the plaintiffs injury.

A useful tool for analyzing questions

of causation in fact is the "but for" or

"sine qua non" rule:

"The defendant's conduct is not

a cause of the event, if the

event would have occurred without

it.” Id. 239.

In the case at bar the plaintiffs have

made no factual allegation that standing

alone or operating through inference would

support a conclusion that "but for" the

Coast Guard's negligence, the vessel COMET

would not have sunk on May 19, 1973 and

STEVEN GERCEY would not have lost his life.

Even assuming that the Coast Guard was

negligent in carrying out its duties, there

is no allegation that a reasonable and dili-

gent enforcement effort by the Coast Guard,

perhaps including some or even all of the

measures proposed by the plaintiffs for

keeping track of, and protecting the public

from, decertified vessels would have pre-

vented the tragic events of May 19. The

only means of enforcement the Coast Guard

could use that would effectively protect

the public from decertified vessels in all

cases would be a policy of seizing all such

vessels immediately upon decertification.

A-24

Not only would such a policy be unreason-

able on its face, however, but it would

probably far exceed the Coast Guard's power

of seizure as provided in 46 U.S.C. sec.

435. While it is conceivable that less

drastic enforcement efforts could have been

adopted by the Coast Guard which might have

in fact succeeded in preventing Mr. Jackson

from using the COMET for fishing charters

after it had been decertified, no such

facts have been alleged in the pleadings

or included in the plaintiffs' proposed

findings of fact. Consequently, I conclude

that the plaintiffs have not alleged that

the Coast Guard's negligence was in fact a

cause of the plaintiffs* injuries and that

the plaintiffs have therefore failed to

state a claim for which relief can be granted.

One point should be made in conclusion how-

ever. The loss of sixteen lives with the

sinking of the COMET was a terrible and need-

less tragedy. The plaintiffs are denied re-

lief in this case because they have not

claimed that lack of care by the Coast Guard

in enforcing the inspection statutes was an

actual cause of this tragedy. But there

can be no doubt that improved enforcement of

these statutes might help avert similar acci-

dents in the future. The record before me

indicates that the Coast Guard has absolute-

ly no standard procedure for keeping track

of decertified vessels, and while this may

not result in tort liability, at least in

this particular case, it is a shameful rec-

ord nonetheless. This Court can only hope

that the Coast Guard has learned from this

experience and will devise and implement, as

rapidly as possible, the procedures necessary

A-25

to reduce the likelihood of this type of

tragedy from recurring.

Defendant's motion for judgment on the

pleadings is hereby granted.

/s/ Raymond J. Pettine

Chief Judge

Dated February 6, 1976

FOOTNOTES

1/ Although the choice between Rhode Island

and federal law conceivably could make a

difference if this case were to go to trial,

it has little effect upon the resolution of

the present motion. Even if Rhode Island

law is applied, the plaintiffs concede that

the duty they assert the defendants breached

is based upon the federal statutes which have

never been the basis for a decision under

Rhode Island law, see Section III, infra, and

there is no Rhode Tsland case law on the

subject of proximate cause.

2/ 46 U.S.C. sec. 742 now reads in relevant

part as follows, with the pertinent language

added in 1960 underlined:

"In cases where if such vessel were

privately owned or operated, or if

such cargo were privately owned or

possessed, or if a private person

were involved, a proceeding in ad-

miralty could be maintained, any

appropriate nonjury proceeding in

personam may be brought against

the United States. . ."

en nea

A-26

That torts of government employees were to

be covered by the Suits in Admiralty Act

is .1so indicated by the elimination of the

proviso originally appearing at the end of

the first sentence:

"provided that such vessel is em-

ployed as a merchant vessel or 1s

a tugboat operated by such corpora-

tion."

"The term 'passenger-carrying ves-

sel' means any vessel which carries

more than six passengers, and which

is (1) propelled in whole or in part

by steam or by any,form of mechani-

cal or electrical power and is of

fifteen gross tons or less; (2) pro-

pelled in whole or in part by steam

or by any form of mechanical or

electrical power and is of more than

fifteen and less than one hundred

gross tons and not more than sixty-

five feet in length measured from

end to end over the deck excluding

sheer. . .”

"The Secretary shall, at least

once every three years, cause to

be inspected each passenger-car-

rying vessel, and shall satisfy

himself that every such vessel

(1) is of a structure suitable

for the service in which it is

to be employed; (2) is equipped

with the proper appliances for

lifesaving and fire protection

in accordance with applicable

laws, or rules and regulations

prescribed by him; (3) has suit-

able accommodations for passen-

gers and the crew; and (4) is

in a condition to warrant the

A-27

belief that it may be used,

operated, and navigated with

safety to life in the pro-

posed service and that all

applicable requirements of

marine safety statutes and

regulations thereunder are

faithfully complied with."

46 U.S.C. sec. 390a (a).

"No passenger-carrying ves-

sel shall be operated or

navigated until a certificate

inspection in such form as

may be prescribed by the regu-

lations promulgated by the

Secretary under the authority

of this Act (sec. 390 and note-

390g, 404 526f of this title),

has been issued to the vessel

indicating that the vessel is

in compliance with the provisions

of this Act (sec. 390 and note-

390g, 404, 526f of this title),

and the rules and regulations

established hereunder. . ."

46 U.S.C. sec. 390c (a).

"Any owner, master, or person

in charge of any vessel sub-

ject to this Act (sec. 390 and

note-390g, 404, 526f of this

title), who violates the provi-

Sions of this Act (sec. 390 and

note-390g, 404, 526f of this

title), or the rules and regula-

tions established hereunder,

shall be liable to the United

States in a penalty of not more

than $1,000 for each such viola-

tion, for which sum the passenger-

Carrying vessel shall be liable

A- 28

and may be seized and pro-—

ceeded against by way of libel

in any district court of the

United States having jurisdic-

tion of the violation

The defendant argues that this

provision does not apply to ves-

sels of the COMET's classifica-

tion. The reference in sec. 435

to "annual or biennial inspec-

tion", it contends, indicates

that it is referring to the in-

spection requirements of 46 U.S.C.

sec. 391(a), (b), meither of

which defendant asserts, 1S ap-

plicable to small diesel vessels

like the COMET. The annual hull

inspection required by sec. 391(a),

however, applies to "every steam

vessel carrying passengers."

Since sec. 361 defines a steam

vessel for the purposes of these

provisions as any vessel "pro-

pelled in whole or in part by

steam or by any other form of 2

mechanical or electrical power,

it appears that sec. 391(a), and

therefore sec. 435, applies to ~

the COMET. On the other hand, it

could be argued that sec. 567,

which was passed after sec. 361,

was intended to supersede it in

part. Sec. 367 provides in part

that "existing laws covering the

inspection of steam vessels are made

applicable to seagoing vessels of

300 gross tons and over propelled

in whole or in part by internal-

combustion engines to such extent

and upon such conditions that may

A-29

be required by the regula-

tions of the commandant of the

Coast Guard. . ." It could be

argued, especially in light of

an opinion of the Attorney Gen-

eral that sec. 361 was ambigu-

ous and required clarifying

legislation, 38 Op.Atty.Gen. 441

(1938), that sec. 367 was in-

tended to limit the treatment

of diesel powered vessels as

steam vessels to those diesel

powered vessels over 300 gross

tons. Thus, the 15 ton COMET

could not be covered by sec.

391(a) and 435. In any case, the

question is academic since the

defendant has conceded "whichever

set of statutes is examined, the

sanctions imposed are the same".

circa il memorandum of law at

A-30

APPENDIX C

§390a. Inspection-- Frequency and

requirements

(a) The Secretary shall, at least

once every three years, cause to be in-

spected each passenger-carrying vessel,

and shall satisfy himself that every such

vessel (1) is of a structure suitable for

the service in which it is to be employed;

(2) is equipped with the proper appliances

for lifesaving and fire protection in ac-

cordance with applicable laws, or rules and

regulations prescribed by him; (3) has suit-

able accommodations for passengers and the

crew; and (4) is in a condition to warrant

the belief that it may be used, operated,

and navigated with safety to life in the

proposed service and that all applicable

requirements of marine safety statutes and

regulations thereunder are faithfully com-

plied with.

Fees for inspection and certificate,

license, or permit

(b) The Secretary may prescribe reason-

able fees or charges for (1) any inspec-

tion made and (2) any certificate, license,

or permit issued pursuant to sections 390-

390g, 404, 526f of this title or the rules

and regulations established hereunder.

May 10, 1956, c. 258, 52, 70 Stat. 152.

§390b. Rules and regulations

In order to secure effective provision

against hazard to life created by passenger-

carrying vessels and to carry out in the

A-31

most effective manner the provisions of

sections 390-390g, 404, and 526f of this

title, the Secretary shall prescribe such

rules and regulations as may be neces-

sary with respect to design, construc-

tion, alteration, or repair of such ves-

sels, including the superstructures, hulls,

accommodations for passengers and crew,

fittings, equipment, appliances, propul-

sive machinery, auxiliary machinery, and

boilers; with respect to all materials used

in construction, alteration, or repair of

such vessels including the fire prevention

and fire retardant characteristics of such

materials; with respect to equipment and

appliances for lifesaving and fire protec-

tion; with respect to the operation of such

vessels, including the waters in which they

may be navigated and the number of passen-

gers which they may carry; withrespect to

the requirements of the manning of such

vessels and the duties and qualifications

of the operators and crews thereof; and

with respect to the inspection of any or

all the foregoing. May 10, 1956, c. 258,

§3, 70 Stat. 152.

$390c. Certificate of inspection--

Issuance prerequisite to

operation; exception

(a) No passenger-carrying vessel shall

be operated or navigated until a certifi-

cate of inspection in such form as may be

prescribed by the regulations promulgated

by the Secretary under the authority of

sections 390-390g, 404, and 526f of this

title, has been issued to the vessel in-

dicating that the vessel is in compliance

with the provisions of said sections, and

the rules and regulations established

a ate on a

A-32

der; except that when a foreign pas-

secer-cartying wenewl belongs to a nation

which is signatory to the International

Convention for Safety of Life at Sea, a

valid safety certificate issued to the ves-

sel pursuant to the Convention may be ac-

cepted in lieu of the required certificate

of inspection.

Compliance

b) An assenger-carrying vessel to

mame é valid certificate of inspection has

been issued pursuant to this section shall

during the tenure of the certificate be in

full compliance with the terms of the certi-

ficate.

Surrender; withdrawal for noncompliance

(c) A certificate of inspection issued

pursuant to this section may at any time be

voluntarily surrendered and shall be with-

drawn and suspended or revoked for noncom-

pliance with any applicable requirements of

sections 390-390g, 404, and 526f of this

title or regulations thereunder. May 10,

1956, c. 258, §4, 70 Stat. 153.

§390d. Violations; penalty, liability;

jurisdiction

owner, master, or person in charge of

pe, 2. subject to sections 390-390g, 404,

and 526f of this title who violates the pro-

visions of said sections, or the rules and

regulations established hereunder, shall .

liable to the United States in a penalty o

not more than $1,000 for each such violation,

for which sum the passenger-carrying vessel

A-33

Shall be liable and may be seized and pro-

ceeded against by way of libel in any dis-

trict court of the United States having

jurisdiction of the violation. May 10

1956, c.258, $5, 70 Stat. 153.

$391. Hulls and equipment--Steam

vessels carrying passengers;

= >

annual inspection

(a) The head of the department in which

the Coast Guard is operating shall require

the Coast Guard to inspect before the same

shall be put into service, and at least

once in every year thereafter, the hull of

every steam vessel carrying passengers; to

determine to its satisfaction that every

such vessel so submitted to inspection is

of a structure suitable for the service in

which she is to be employed, has suitable

accommodations for passengers and the

crew, and is in a condition to warrant the

belief that she may be used in navigation

with safety to life, and that the vessel

is in full compliance with the applicable

requirements of this title of Acts amenda-

tory or supplementary thereto and regula-

tions thereunder; and if deemed expedient

to direct the vessel to be put in motion

or to adopt any other suitable means to

test h ici i

ood er sufficiency and that of her equip-

(d) Whenever it is found on board any

vessel subject to the provisions of this

title, or any Acts amendatory or supplemen-

tary thereto, that any equipment, machinery

apparatus, or appliances do not conform to

the requirements of law or regulations pro-

mulgated thereunder, the owner or master of

A-34

said vessel shall be required to place

the same in proper condition; and if there

shall be found on board any such vessel any

life preserver or fire hose so defective as

to be incapable of repair, the owner or

master shall be required to destroy the

same in the presence of an official desig-

nated by the head of the department in

which the Coast Guard is operating. In any

of the foregoing cases the requirements may

be enforced by revoking the certificate of

said vessel, and by refusing to issue a new

certificate until the requirements have

been fully complied with. In any case

where the head of the department in which

the Coast Guard is operating has delegated

to a Coast Guard official the authority to

enforce the said requirements by revocation

of certificates of inspection, the action

of said Coast Guard official may be re-

versed, modified, or set aside by the head

of the department in which the Coast Guard

is operating on proper appeal by the owner

or master of said vessel. Appeals shall

be made to the head of the department in

which the Coast Guard is operating within

thirty days after the final action of the

aforesaid Coast Guard official. |

Exemptions

(e) Vessels subject to inspection under

this title or Acts amendatory or supplemen-

tary thereto while laid up and dismantled

and out of commission may, by regulations

established by the head of the department

in which the Coast Guard is operating, be

exempted from any or all inspection under

this section and sections 392, 404, and 405

of this title. R.S. 84417; Dec. 21, 1898,

c. 29, §4, 30 Stat. 765; Mar. 3, 1905,

A-35

c. 1454, §1, 33 Stat. 1023; Mar. 4, 1913,

c. 141, 81, 37 Stat. 736; 1946 Reorg.Plan

No. 3, §8101-104, eff. July 16, 1946, 11

F.R. 7875, 60 Stat. 1097; June 4, 1956,

ec. 358, Si. 76. Stat. 223.

8435. Reinspections and notice for

repairs; entorcement of

requirements

In addition to the annual or biennial

inspection, the head of the department in

which the Coast Guard is operating shall .

require the Coast Guard to examine, at

proper times, inspected vessels arriving

and departing to and from their respective

ports, so often as to enable them to de-

tect any neglect to comply with the require-

ments of law, and also any defects or im-

perfections becoming apparent after the in-

spection aforesaid, and tending to render

the navigation of such vessels unsafe; and

if there shall be discovered any omission

to comply with the law, or that repairs

have become necessary to make such vessel

safe, the master shall at once be notified

in writing as to what is required. All

inspections and orders for repair shall be

made promptly. When it can be done safely,

repairs may be permitted to be made where

those interested can most conveniently do

them. And whenever it is ascertained that

any vessel subject to the provisions of

this title or Acts amendatory of supplemen-

tary thereto, has been or is being navi-

gated or operated without complying with

the terms of the vessel's certificate of

inspection regarding the number and class

of licensed officers and crew, or without

complying with the provisions of law and

her said certificate as to the number or

- alla Canin me

A-36

kind of life-saving or fire-fighting ap-

paratus, or without maintaining in good

and efficient condition her lifeboats,

fire pumps, fire hose, and life preservers,

or that for any other reason said vessel

cannot be operated with safety to life,

the owner or master of said vessel shall

be ordered to correct such unlawful condi-

tions, and the vessel may be required to

cease navigating at once and to submit to

reinspection; and in case the said orders

shall not at once be complied with, the

vessel's certificate of inspection shall

be revoked, and the owner, master, or

agent of said vessel shall immediately be

given notice, in writing, of such revoca-

tion; and no new certificate of inspec-

tion shall be again issued to her until

the provisions of this title of Acts

amendatory or supplementary thereto have

been complied with. Any vessel subject to

the provisions of this title of Acts

amendatory or supplementary thereto opera-

ting or navigating or attempting to operate

or navigate after the revocation of her

certificate of inspection and before the

issuance of a new certificate, shall, upon

application by a department or agency

charged with the enforcement of such title

or Acts, to any district court of the

United States having jurisdiction, and by

proper order or action of said court in the

premises, be seized summarily by way of

libel and held without privilege or re-

lease by bail or bond until a proper certi-

ficate of inspection shall have been issued

to said vessel: Provided, That the owner,

master, or person in charge of any vessel

whose certificate shall have been so re-

voked may within thirty days after receiving

notice of such revocation appeal to the head

A-37

of the department in which the Coast Guard

is operating for a re-examination of the

case, and upon such appeal the said head

of the department shall have power to re-

vise, modify, or set aside such action of

revocation, and direct the issuance to

such vessel of her original certificate or

of a new certificate of inspection; and in

case the said head of the department shall

so direct the issuance of a certificate,

all judicial process against said vessel

based on this section shall thereupon be

of no further force or effect, and the ves-

sel shall thereupon be released. R.S.

84453; Mar. 3, 1905, c. 1454, §2, 33 Stat.

1023; Mar. 4, 1913, c. 141, $1, 37 Stat.

736; 1946 Reorg.Plan No. 3, §8 101-104,

eff. July 16, 1946, 11 F.R. 7875, 60 Stat.

1097; June 4, 1956, c. 350, $4, 70 Stat.

225.