Petition — Pacific Northwest Bell Telephone Co. v. United States

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

Supreme Court, U. S.

FILED

" TE “WAY 2 1977

Supreme Court of the United 1 —.—

October Term, 1976

No. se As To 15 15

PACIFIC NORTHWEST BELL

TELEPHONE COMPANY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN N. RUPP

DONALD J. HAGEN of

SCHWEPPE, DOOLITTLE, KRUG,

TAUSEND & BEEZER

Counsel for Petitioner

1600 Peoples National Bank Bldg.

Seattle, Washington 98171

(206) 223-1600

CRAFTSMAN PRESS = WORD PROCESSING. SEATTLE

* .

Il.

111.

IV.

VII. Conclusion

SUBJECT INDEX

Opinions Belo

Jurisdiction .«.«-eccececevee

Statutory Provisions and

Regulations Involved ....

Questions Presented .....

Statement of the Facts... .

Reasons for Granting the Writ

1. The Admiralty Acts and Waiver

of Immunity .... +. sees

2. PNB's Cable Permit and Clause (9)

3. Conflict in the Circuits

4. The Government's Dominant

Navigational Servitude .

Appendi x A * * * * * * * * * * * *

Appendi x B 7 * * . * * . * * * * *

Appendi x C * * . * * * * * . * * .

Boston Edison v. Great Lakes Dredge

~ & Doc 423 F.2d N

(Ist Cir. 1970)

TABLES OF AUTHORITY

Table of Cases

k Co., ;

A-11

. 19

Page

Canadian Aviator, Ltd. v. United

States, 324 U.S. 215 (1945). fz S&S = a 13,14

De Bardeleben Marine Corp. v.

United states ol 0 140 -

r. 1 * * * * * * * * * * * * * oe

ke v. United States,

* fe 1976) * * >. >. * >. >. * 20

Lakewood S. S. Co. v. Superior Water

ight : Power Co., 88 F 2d 895

r. — >. >. >. J >. * * * * * >. . 15

Manhattan Gen. 72535 Co. v. Comm'r,

— * >. — * >. > * * . * * * 19

Michigan Bell Tel. Co. v. Copper

Range N. N-, 355 F.2d oo

Gi Cir

* 1966) * 4 * * . * * . * * * . * * * 15

New Jersey Bell Tel. Co. v.

1 071 Co. of Hew verse.

„ Upp. eWweMete „„ „„ 6 „

P. Sanford Ross, Inc. v. Public

er. Corp. of New Jersey,

a2 F.2d 75 (3d Cir. 75300 b 0 0 o % o o „

Paducah Sand 4 Gravel Co. v.

entra el. el. Co.,

Postal Tel. Cable Co. v. P. Sanford

>. oN. >.

United States v. United Continental

Tun cCorp., 425 U.S. 104,

is Oe EP CED ccc ecco oo ee el

Statutes

iii

Page

33 C. F. R. § 130(c)(2)(vii) (1979).

33 C. F. R. 5 209.110 - 209.335 (1974)

33 C. F. R. § 209.130(c)(2)(vii) (1974)

28 U. S. C. § 1254(1)

33 U.S.C. § Re * *

46 U.S.C. §§ 741-752

46 U.S.C. § 742 .

46 U.S.C. § 746

46 U.S.C. § 781 .

46 U.S.C. §§ 781

46 U.S.C. § 789 .

Other Authority

Sir Richard Steele, The Spectator

No. 509, Oct. 14, 1712

eee §

- 2,5,10-11,17

o « « « 7,12

2,9, 13

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No. „ „ „„ „

PACIFIC WORTHWEST BELL

TELEPHONE COMPANY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner, Pacific Northwest Bell Tele-

phone Company, prays that a writ of certiorari

issue to review the opinion and judgment of the

United States Court of Appeals for the Ninth

Circuit entered herein on February 4, 1977.

INIONS BELOW

The opinion of the District Court for the

Western District of Washington is reported at

378 F. Supp. 297 (1974). The opinion of the Court

of Appeals for the Ninth Circuit is reported at

549 F.2d 1313 (1977). Those opinions are printed

herein as Appendix A and Appendix 8, respectively.

Il.

JURISDICTION

The judgment of the Court of Appeals for the

Ninth Circuit was entered on February 4, 1977.

This petition for certiorari is filed less than

90 days from that date. Jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

111.

STATUTORY PROVISIONS AND

~~ REGULATTONS TNVOLVED ~

Statutory provisions involved are: 33 U.S.C.

§ 1; 46 U.S.C. § 742; 46 U.S.C. § 746; 46 U.S.C.

§ 781; 46 U.S.C. § 789; and 33 C.F.R. 5 209.130(c)

(2)(wii) (1974).

All the foregoing are printed in pertinent

part herein as Appendix C.

IV.

QUESTIONS PRESENTED

Pacific Northwest Bell Telephone Company

(hereafter “PNB") brought an admiralty suit under

both the Suits in Admiralty Act and the Public

Vessels Act to recover its damages resulting from

an injury to PNB's underwater telephone cable

caused by the negligence of the U.S. Coast Guard

in placing a race-course buoy in Lake Washington

at Seattle. The District Court entered judgment

for PNB. The Court of Appeals reversed. The

questions involved are:

1. Whether the Public Vessels Act and the

Suits in Admiralty Act waive sovereign immunity

from maritime tort liability, making the United

States liable for its negligent injury to the

cable if a private person would be liable for

causing the same injury.

2. Whether the Secretary of the Army can,

by regulation, reestablish sovereign immunity so

that the United States is not liable for tortious

injury to the cable even though a private person

would be liable for causing the same injury.

—

3. Whether the Secretary of the Army's

regulation, which purports to immunize the Govern-

ment from tort liability, bears any reasonable

relation to the Secretary's authority to make

navigable waters safe for navigation.

4. Whether the United States dominant

navigational servitude immunizes it from liability

for tortious injury to submarine cables placed

in navigable waters in spite of the waiver of

sovereign immunity from maritime tort established

by the foregoing admiralty statutes.

STATEMENT OF THE FACTS

The case was appealed from a summary judg-

ment, and the facts are uncontroverted.

The petitioner is a regulated utility which

has a statutory duty to provide telephone service

to the public in the Seattle area (R. 1-2, 7).

Lying along the eastern edge of Seattle is Lake

Washington, a navigable body of water about 20

miles long and 1-1/2 miles wide. Mercer Island

is an inhabited island in that lake. To provide

telephone service between Seattle and Mercer

Island, one must go over or under the water.

Submarine cables are the only reasonable means of

spanning the 1-1/2-mile distance. One of the

submarine telephone cables needed to serve Mercer

Island from Seattle was placed under the lake in

1965 (R. 2, 8).

Since such a cable is a structure which

might affect the navigable capacity of the waters,

PNB had to obtain, and did obtain, from the Army

Corps of Engineers, a permit for the cable (R.

2, 8). 33 U.S.C. § 1, et seq.; 33 C.F.R. 88

209.110 - 209.335 (1974).

Thereafter, the location of the cable was

described in the official “Local Notice to

Mariners” issued by the U.S. Coast Guard, and its

1 These regulations prescribe a number of

non-negotiable permit conditions to which the per-

mittee must accede if it wishes to place a struc-

ture in navigable waters. The Corps of Engineers

has no authority to waive or modify any of the

required permit clauses. One of these clauses

is the subject of this petition and is addressed

in detail later.

location was designated as a “cable area“ on the

official government chart of Lake Washington,

published by the National Oceanic and Atmospheric

Administration, the most recent revision of which

was issued a full 6 months before the incident

here involved (R. 3, 8).

In the summer of 1972, in connection with

the annual Seattle celebration called Seafair,“

there was to be a speedboat race. The race

course was laid out in Lake Washington between

Seattle and Mercer Island (R. 3-4, 8). The U.S.

Coast Guard undertook the task of placing the

large buoys used to mark the course. The Coast

Guard buoy tender, Fir“, was assigned to this

duty (R. 4, 8). The promoters of the race furn-

ished the master and crew of the Fir“ with a

diagram showing where the buoys were to be placed.

Id. This was not the official chart which all

navigators use; it was simply the promoters’ map.

Id. It did not correctly show the cable area.

Id. The master and crew of the Fir“ did not

consult the Notices to Mariners nor did they

examine the official N. 0. A. A. chart (K. 4, 8,

49-50).

The Fir“ placed race-buoy “Charlie” right

in the cable area. In maneuvering the buoy

anchor, the crew fouled and broke the telephone

cable. It cost PNB $56,000 to repair the damage

(R. 85-86).

PNB timely filed a claim for its damages

(R. 4-5, 8). When the Coast Guard refused to

allow it, PNB instituted in the U.S. District

Court for the Western District of Washington a

suit in admiralty under the Suits in Admiralty

Act (46 U.S.C. §§ 741-752) and the Public Vessels

Act (46 U.S.C. §§ 781-790) asserting that the

United States was liable in tort for the damages

caused by the Coast Guard's negligence. Discovery

ensued, and, in due course, PNB moved for summary

judgment on the issue of liability. (In the

course of the proceedings the amount of damages

was stipulated, so the summary judgment decided

the whole case.)

The Government did not seriously contest the

issue of the Coast Guard's negligence. (Indeed,

how could it? Those people who did not bother

to look at the chart and who put a big anchor

in a marked cable area that summer day were not

feckless amateurs -- they were the U.S. Coast

Guard!) The Government's basic position was that

it was not liable for the Coast Guard's acts

even if they were negligent, or grossly negligent,

or even willful and deliberate. Why not? Because

when PNB laid the cable in 1965, it had been re-

quired to obtain, and it did obtain, a permit

from the Army Corps of Engineers. One of the

non-negotiable provisions required to be inserted

in each permit by the regulations cited above is

at the core of this petition, and for convenience

has been called Clause (g)" throughout this

litigation.¢ Clause (g) reads as follows:

(g) That the United States shall in no

case be liable for any damage or injury

to the structure or work herein authorized

2 Clause (g) is required by 33 C. F. RK. §

130(c)(2)(wii) (1974).

—

eae Ce é ùꝙ—Fẽ̃ 7

which may de caused by or result from

future operations undertaken by the Govern-

ment for the conservation or improve-

ment of navigation, or for other purposes,

and no claim or right to compensation shall

accrue from any such damage.

That clause appears in the 1965 permit here in-

volved. This means, said the Government, that

the Coast Guard could damage or destroy the cable

with complete impunity no matter how grossly

negligent it may have been.

The Government also claimed immunity under

what it called its “dominant navigational servi-

tude."

The District Court rejected the Government's

arguments and held that Congress had uncondition-

ally waived sovereign immunity by enacting the

Suits in Admiralty Act, as amended (46 U.S.C.

§ 742), and the Public Vessels Act (46 U.S.C.

§ 781), and that the continued use of Clause

(g) by the Secretary of the Army was an unlawful

attempt by an administrative agency to re-create

the sovereign immunity which had been clearly

and unequivocally waived by Congress. Thereupon,

on August 24, 1974, the District Court entered

judgment for PNB against the United States for

PNB's damages in the stipulated amount of $56,000.

The Government appealed to the Court of

Appeals for the Ninth Circuit. That court held

that Clause (g) did indeed exculpate the Govern-

ment from liability, and hence it reversed the

judgment of the District Court.

The Court of Appeals accepted the District

Court's finding of negligence. It agreed, how-

ever, with the Government's position that, by

putting Clause (g) in the 1965 cable permit, the

Secretary of the Army had made the Coast Guard

immune from any liability. It held that this

immunity was not the sovereign immunity which

Congress had waived by the Suits in Admiralty

Act and the Public Vessels Act. It held that the

exculpatory Clause (g) was “relevant to the reg-

ulatory purpose and falls within the regulatory

power of the Secretary of the Army, that is, the

Secretary's power under 33 U.S.C. § 1 to make:

[Rlegulations for the use, administration,

and navigation of the navigable waters of

the United States as in his judgment the

public necessity may require for the pro-

tection of life and property, or of oper-

ations of the United States in channel

improvement, ....

The Court of Appeals also said that in dealing

with navigable waters the Secretary of the Army

is like a landowner. A landowner, it said, does

not have to grant an easement across his property

and, if he does so, he is entirely at liberty

to impose any conditions that he wants to impose;

and it went on to liken the permit to a contract

freely entered into by the parties.

VI.

REASONS FOR GRANTING THE WRIT

The Court of Appeals was incorrect in its

decision, and the case should be reviewed by this

Court because:

1. The case presents these serious and far-

reaching questions:

(a) Whether an administrative agency

which has only those powers delegated to it

by Congress, may, by regulation, create

or re-create an immunity from tort liability

which immunity Congress has expressly

abrogated;

(db) Whether the immunity which the

Secretary of the Army has purported to create

bears any relation to the Secretary's author-

ity to insure the safety of navigable waters.

2. It appears that a conflict exists among

the circuits as to the effect of the exculpatory

clause in the Army permits.

3. The questions here presented have never

been considered by this Court -- the case is one

of first impression here.

4. The decision of the Court of Appeals is

not consistent with principles laid down by this

Court.

5. The question involved is of direct con-

cern to the thousands of citizens all over the

United States who must have these Army permits

to place structures in navigable waters.

1. The Admiralty Acts and Waiver of Immunity

By passage of the Suits in Admiralty Act,

46 U.S.C. § 741 et seg, and the Public Vessels

Act, 46 U.S.C. § 781 et seg: . Congress waived

sovereign immunity from liability for maritime

tort. Under the Public Vessels Act the United

States is liable “for damages caused by a public

vessel of the United States," 46. U.S.C. § 781,°

and under the Suits in Admiralty Act, as amended

in 1960, the United States is liable for damages

[In cases where if such vessel were privately

owned or operated . . . or if a private person

or property were involved, a proceeding in admir-

alty could be maintained. . . ." 46 U.S.C.

§ 742. The language could not be clearer.

Both acts specifically address exemptions

and limitations of liability and both reserve

to the United States only the benefits of al]

exemptions and of all limitations of liability

accorded by law to the owners, charterers,

infra.

Proceedings under the Public Vessels Act

are to be in accordance with the Suits in Admir-

alty Act so far as they are not inconsistent.

46 U.S.C. § 782.

This includes liability for the negligence

of a ship's officer. See Canadian Aviator, Ltd.,

operators, or agents of vessels." 46 U.S.C.

§§ 746 and 789.

This Court has unequivocally stated that the

United States is now liable for torts of a public

vessel if a private person would be liable for

the same injury:

[W]e hold that the Public Vessels Act

was intended to impose on the United States

the same liability (apart from seizure or

arrest under a libel in rem) as is imposed

by the admiralty law on the private ship-

owner. * . *

Canadian Aviator, Ltd. v. United States, 324 U.S.

215, 228 (1945). This Court recently stated that

the purpose of the 1960 amendment to the Suits

in Admiralty Act, which also subjects the Govern-

ment to liability if a private person would be

liable for the same injury, was to bring “within

the suits in Admiralty Act whatever category of

claims involving public vessels was beyond the

scope of the Public Vessels Act." United States

to recover damages from private persons who negli-

gently damage underwater cables, pipelines, etc.”

The statutes and the holdings of this Court

are not ambiguous: if a private person would be

liable to PNB under general maritime principles

for damage caused, so is the United States.

Under the holding of the Court of Appeals,

however, it makes no difference that a private

person would be liable in admiralty to PNB for

negligently dragging an anchor in a cable area

and damaging PNB's submarine cable, and it makes

no difference how grossly negligent the United

v. United Continental Tuna Corp., 425 U.S. 164,

96 S. Ct. 1319, 1328 (1976).

Without exception, the reported case law has

allowed rightful occupiers of navigable waters

See, e.g., Paducah Sand & Gravel Co. v.

Central Home Tel. & Tel. co., 209 Ky. 156, 777

; kewoo 8. Co. v. Superior

Water Light & Power . ir.

1937). ee latter — holds that a cable laid

by permit under 33 U.S.C. § 403 does not consti-

tute an obstruction to navigation. 88 F.2d at

898. See, also, Postal Tel. Cable Co. v. P.

Sanford Ross — r ¥. 105" ec uns.

anfor Inc. Public Serv. Corp.

of New Jerse . N F. 2d 19 671 Cir. 1930); Michigan

Bell fel. c v. Copper Range R. K. 355 F.2d

678 (éth r. ; Jerse Beil Tel. Co. v.

Standard Oil Co. of ‘New Jersey, 688 F. Supp.

506 (S.D.N.Y. 1949

-D.N.Y. J.

States was. The court held that the Government

is simply not liable for its negligent conduct.

2. PNB's Cable Permit and Clause (gq)

PNB is far from alone in being affected by

Clause (g). Before any cable, pipeline or the

like can be placed in navigable waters, a permit

must be obtained from the U.S. Army Corps of

Engineers. Thousands of telephone and telegraph

cables, electrical conduits, water and gas pipe-

lines and other structures cross under lakes,

rivers and other navigable waters throughout

the United States, to say nothing of the bridges,

piers and other structures requiring such permits.

By the Secretary's regulation every one of those

permits contains the exculpatory Clause (g).

Therefore, all these structures are potentially

affected by the ruling of the court below.

The Court of Appeals statement that PNB

and all the other people who have permits from

the Army are free contracting parties who have

by choice willingly accepted the Secretary's

Clause (g) is harsh, unrealistic and inaccurate.

They have no choice at all. Thus, in the instant

case PNB had a statutory duty to provide telephone

service to the people of Mercer Island. To extend

telephone lines to an island, one must go over or

under water. To do so, one must obtain a permit

from the Army. Neither the Army people nor the

permittee may negotiate about Clause (g); the

Secretary's regulation requires its presence in

every permit. The permittee's “free choice” is

that immortalized in the business practice of

the celebrated livery-stable keeper, Tobias

Hobson, of which practice Sir Richard Steele

(The Spectator No. 509, Oct. 14, 1712) tells us:

From whence it became a proverb, when

what ought to be your election was forced

upon you, to say, Hobson's Choice.

Moreover, Clause (g) is in excess of the

Army Secretary's authority to prescribe regula-

tions. The clause does not purport to regulate

anything. It does not assign any duties either

to the United States or to the permittee. Clause

(g) has nothing to do with the Secretary of the

Army's duty under 33 U.S.C. § 1 to prescribe

regulations to control navigation and insure its

safety. The only function of Clause (g) is to

immunize the United States from the consequences

of its own acts, no matter how egregious or neg-

ligent. Even absent the waivers of sovereign

immunity in the Admiralty Acts, therefore, Clause

(g) is invalid as having nothing to do with navi-

gation safety. In requiring it, the Secretary has

exceeded his authority.

Of course, Congress did waive sovereign

immunity for maritime tort. Therefore, in holding

that Clause (g) is applicable here and exculpates

the Government, the Court below has arbitrarily

carved out a single, special class of persons

who cannot recover against the United States for

maritime tort under any circumstances, to-wit:

all those persons, companies, utilities, dock-

owners, and the like who must obtain U.S. Army

Corps of Engineers permits in order to place lan-

ful structures in navigable waters. This is so

because the Corps is required by regulation to

put Clause (g) in every one of these permits.

Clause (g) plainly and simply is an adminis-

trative device -- “administrative legislation” --

designed to establish sovereign immunity from mari-

time tort where Congress has expressly waived

immunity. This Court held such regulations to

be a “mere nullity” in Manhattan Gen. Equip. Co.

v. Comm'r, 297 U.S. 129, 134 (1936).

3. Conflict in the Circuits

Moreover, there now appears to be a conflict

in the circuits regarding the extent to which

Congress has waived sovereign immunity in the

Admiralty Acts. The decision below aligns the

Ninth with the First Circuit in upholding Clause

(g), although under a different rationale. The

First Circuit erroneously imported the discretion-

ary function exemption of the Federal Tort Claims

Act into the Suits in Admiralty Act, even though

the two acts by their own terms are mutually

exclusive. See Boston Edison v. Great Lakes

Dredge & Dock Co,, 423 F.2d 891 (lst Cir. 1970).

While no other appellate court has directly

addressed Clause (g), most probably the Second

Circuit, and especially the Fifth Circuit, would

invalidate the clause, consistent with prior

holdings of this Court. See Kelly v. United

States, 531 F.2d 1144 (2d Cir. 1976), in which

the 1960 amendment to the Suits in Admiralty Act

waiving sovereign immunity was given its “plain

and ordinary meaning.” 531 F.2d at 1148-49.

And see De Bardeleben Marine Corp. v. United

States, 451 F.2d 140 (Stn Cir. 1971), which held

that Congress intended “to assimilate the Govern-

ment to the private person in relation to any or

all transactions giving rise to liability in the

Admiralty." (Emphasis added.) 451 F.2d at 148.

4. The Government's Dominant Navigational

Servi tude

The Government's “dominant navigational

servitude” argument and the Court of Appeals’

"landowner" analogy are both faulty, and for the

same reason. The Court of Appeals points out

that a landowner has an absolute right to deny

others the use of his land and that hence, if

he allows another to use it, he may attach to

that permission any conditions, however bizarre,

that he may wish. Then that court goes on and

says that, in dealing with navigable waters, the

Secretary of the Army is like a landowner. But

the Secretary of the Army's authority is by no

means as broad as that of a landowner. It is

carefully limited to matters embraced in the power

to control, protect and regulate navigation.

The Secretary has the authority to require permits

and to place conditions in those permits, but,

as Congress has plainly stated, those conditions

must have some reasonable bearing on navigation.

A condition designed solely to shield the Govern-

ment from its own negligence is of no help to

navigation -- all it does is save the Govern-

ment money.

The Government's “dominant navigational

servitude” argument is equally faulty. The argu-

ment goes this way: if, after PNB's cable was

placed in the lake, the needs of navigation should

require that the cable be relocated or removed,

the Government could require PNB to relocate or

remove the cable without any compensation. PNB

agrees that that is so. Then, however, the

Government goes on to reason that, since it could

compel removal or relocation, it follows that it

also has a perfect right to destroy or injure

the cable, negligently or even intentionally,

without any liability, even though the cable did

not obstruct navigation. (The Government really

says this in its brief in the Court of Appeals!)

Thus, the Government would say that if A parks

his car in B's driveway, B can compel A to remove

the car; therefore B can also, without asking A

to move the car, drop a wrecking ball on it, or

set it on fire, without any liability to A. But

the Government is wrong about this; the second

proposition does not follow from the first.

The Government's “servitude” is limited to its

right to control and protect navigation. The

Government's designation and marking of a cable

area is plainly an exercise of that right; but

negligently dragging an anchor around in that cable

area is not.

PNB readily concedes that if its cable con-

stituted an obstruction to navigation, it could

be ordered to move or remove the cable without

compensation for a taking“ of its property under

the Fifth Amendment. But PNB is not asserting

a Fifth Amendment right of recovery; rather, it

is asserting a claim for maritime tort for injury

to a cable which was rightfully occupying the bed

of Lake Washington and which was not an obstruc-

tion to navigation.

VIl.

CONCLUSION

If Congress had wished to disallow damages

for negligent injury to underwater structures,

it could and would have written an exception into

the Admiralty Acts. The Secretary of the Army

does not have the right to do what Congress

plainly forbade. Nor does the Secretary of the

Army's authority to make regulations for the

safety of navigation authorize him to immunize

government agencies from liability for their

negligent conduct.

JOHN N. RUPP

DONALD J. HAGEN of

SCHWEPPE, DOOLITTLE, KRUG,

TAUSEND & BEEZER

Counsel for Petitioner

A-l

APPENDIX A

PACIFIC NORTHWEST BELL TELE-

PHONE COMPANY, Plaintiff,

UNITED STATES of America,

Defendant.

Civ. No. 760-73C2.

United States District Court,

W. D. Washington.

July 9, 1974.

ORDER GRANTING PLAINTIFF'S

FIRST PARTIAL SUMMARY

JUDGMENT MOTION

BEEKS, District Judge.

1. Procedural. This matter came on regu-

larly for hearing on June 20, 1974, upon the

motion of plaintiff, Pacific Northwest Bell

Telephone Company, for partial summary judgment

against defendant, United States of America,

pursuant to Federal Rule of Civil Procedure 56(a)

on the legal question raised by defendant's

Second Defense as set forth in its answer. Plain-

tiff was represented in Court by two of its

attorneys, Donald J. Hagen and David G. Knibb,

of Schveppe, Doolittle, Krug, Tausend, Beezer

& Beierle. Defendant wes represented in Court

by one of its attorneys, Richard J. Beaver, of

the Admiralty and Shipping Section, U.S. Depart-

ment of Justice.

2. Admitted Facts. No genuine issue of

material fact exists. The admitted facts material

to this action as presented to the Court and sum-

marized herein from the pleadings show that Pa-

cific Northwest Bell Telephone Company (hereafter

A-2

called “PNB") obtained a permit on April 12, 1965,

from the Seattle District of the U. 8. Army Corps

of Engineers, pursuant to 33 U.S.C. § 403 to lay

a submarine telephone cable in navigable waters

under Lake Washington. A true and correct copy

of this permit was admitted into evidence with-

out objection as Exhibit "3". PNB's cable was

laid and spliced by approximately May 1, 1965.

While engaged in setting buoys for the 1972 Sea-

fair Hydroplane Race, the U.S. Coast Guard Vessel

FIR, as a part of its regular duties to ensure

navigational safety, damaged PNB's cable with

a buoy anchor on or about July 26, 1972. PNB

alleges that this damage was caused by defen-

dant's negligence. Clause (g) in the 1965 per-

mit stated:

That the United States shall in no case

be liable for any damage or injury to the

structure or work herein authorized which

may be caused by or result from future

operations undertaken by the Government

for the conservation or improvement of

navigation, or for other purposes, and no

claim or right to compensation shall

accrue from any such damage.

PNB's timely claim to the Coast Guard for

damages to its cable was denied September 7,

1973, on the basis of Clause (g), and this clause

is now pleaded by the United States as its Second

Defense.

3. Issue. The question presented is whether

Clause (g) in the 1965 permit immunizes the United

States from liability for the alleged negligence

of the U.S. Coast Guard in causing damage to

PNB's cable.

[1,2] 4. Conclusions. Clause (g) is

invalid both under the Public Vessels Act, 46

U.S.C. §$ 781, and under the 1960 amendments to

A-3

the Suits in Admiralty Act, 46 U.S.C. § 742,

which were designed to subject the United States

to maritime tort liability to the same extent as

a private person. DeBardeleben Marine Corp.

v. United States, 451 F.2d 140, 145 (5th Cir.

1971). Clause (g) was promulgated by regulation.

33 C. F. R. § 209-130(c)(2)(vii). A regulation

beyond the scope of, or in conflict with, statu-

tory authority is invalid. Mannhattan General

Equipment Co. v. Commissioner of Internal Revenue,

297 U.S. 129, 134, 56 S.Ct. 397, 80 L.Ed. 528

(1936).

[3] Boston Edison v. Great Lakes Dredge

and Dock Co., 423 F.2d 891 (lst Cir. 1970) relied

upon by the Government to uphold Clause (g) is

inapplicable because it did not consider the

effect of these 1960 amendments to the Suits in

Admiralty Act upon the government's claim of

sovereign immunity (based in that case, as here,

upon a permit clause). The government's dominant

navigational servitude, see United States v.

Virginia Electric Co., 365 U.S. 624, 627-628,

81 S.Ct. 784, 5 L.Ed.2d 838 (1961) similarly

does not immunize the government from liability

for negligent per ormance of a statutory duty.

Compare Greenleaf-Johnson Lumber Co. v. Garrison,

237 U.S. 251, 35 S.Ct. 551, 59 L.Ed. 939 (1915)

with Indian Towing Co. v. United States, 350

U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955).

5. Order. Based upon the foregoing it is

hereby ORDERED that:

Defendant's Second Defense, based upon

Clause (g) in the 1965 permit, is dismissed.

* * *

A-4

APPENDIX B

Before MERRILL and CHOY, Circuit Judges,

and GRAY,* District Judge.

MERRILL, Circuit Judge:

The United States has taken this appeal from

judgment of the district court, 378 F.Supp. 297

(W.D. Wash. 1974), awarding the sum of $56,000

to Pacific Northwest Bell Telephone Company (Bell)

for damages suffered by a submarine telephone

cable on the bed of Lake Washington, a navigable

body of water near Seattle. The cable had been

placed in Lake Washington pursuant to a permit

issued by the United States Army Corps of Engi-

neers. It was fouled by the anchor of a buoy

placed there by the United States Coast Guard.

By regulation and by the language of the permit,

the United States is relieved of liability for

damage or injury caused by or resulting from oper-

ations undertaken by the United States for the

conservation and improvement of navigation.

The question presented by this appeal is whether

the regulation and language of the permit reliev-

ing the United States from liability are incon-

sistent with and invalidated by the waiver of

sovereign immunity provided by the Public Vessels

Act and the Suits in Admiralty Act. The district

court held the regulation and permit condition

to be invalid. We reverse. III

The Secretary of the Army has been given

authority generally to prescribe regulations

regarding navigable waters:

* Honorable William P. Gray, United States Dist-

rict Judge for the Central District of Califor-

nia, sitting by designation.

1. We thus find ourselves in agreement with the

result in Boston Edison Co. v. Great Lakes

Dredge & Dock For, 423 F.2d 691 (ist Cir.

1370)

A-5

“It shall be the duty of the Secretary

of the Army to prescribe such regulations

for the use, administration, and naviga-

tion of the navigable waters of the United

States as in his judgment the public

necessity may require for the protection

of life and property, or of operations of

the United States in channel improvement,

covering all matters not specifically

delegated by law to some other executive

department."

JJ U.S.C. § 1. By the Rivers and Harbors Act of

1899, 33 U.S.C. § 403, Congress among other things

expressly prohibited the creation of any obstruc-

tion to the navigable capacity of any of the

waters of the United States, unless the work has

first been recommended by the Chief of Engineers

and authorized by the Secretary of the Army.

In carrying out his delegated function of admin-

istering the laws enacted by Congress for the

protection of navigation and navigable waters,

the Secretary has issued a comprehensive set of

regulations, one portion of which sets forth

the requirements and conditions upon which ob-

structions may be placed and work may be per-

formed in the navigable waters of the United

States. 33 C.F.R. $§§ 209.110-209.335 (19740. [2]

The requisite authorization from the Sec-

retary of the Army is provided by a permit, 33

C.F.R. § 209.120 (1974), issued in the name of

the Secretary by appropriate officers of the

Army Corps of Engineers on such terms and condi-

tions as may be prescribed, and without which any

structure placed or work performed in the navi-

gable waters of the United States is unlawful.

33 U.S.C. § 403. The requirement for a permit

is applicable to submarine pipelines and cables

T Some of these regulations were modified

after the dates involved in this case.

References are to the regulations as they

exicted up to 1974,

A-6

which obstruct the navigable capacity of the

waterway where they are placed and interfere with

navigation by restricting the areas where vessels

may safely anchor. See 33 C.F.R. § 209.130(b)

(14) (1974).

Every permit for any kind of structure or

work in navigable waters is subject to a number

of standard conditions, 33 C.F.R. § 209.130(c)

(2) (1974), ome of which is that if future oper-

ations of the United States should require, or

if in the opinion of the Secretary of the Army

the structure or work should cause an unreasonable

obstruction to navigation, the owner shall remove

or alter the structure or work without expense

to the United States. 33 C.F.R. § 209.130(c)

(2)(vi) (1974).

On April 12, 1965, the Department of the Army

issued the permit authorizing Bell to lay a sub-

marine telephone cable in Lake Washington. The

permit was expressly made subject to the standard

conditions contained in the Army regulations.

The condition that bears directly on this case,

which is identical to one of the standard condi-

tions in the regulations (33 C.F.R. § 209.130(c)

(2)(wii) (1974)), is contained in clause (g) of

the permit issued to Bell. Clause (g) reads

as follows:

“That the United States shall in no

case be liable for any damage or injury

to the structure or work herein authorized

which may be caused by or result from

future operations undertaken by the Govern-

ment for the conservation or improvement

of navigation, or for other purposes, and

no claim or right to compensation shall

accrue from any such damage.”

The cable was laid and placed in operation

by Bell on or about May 1, 1965.

By 46 U.S.C. § 454, Congress authorized the

Commandant of the Coast Guard to issue regulations

A-7

to promote the safety of life on navigable waters

during regattas or marine parades. Among the

regulations so issued is one authorizing estab-

lishment of aids to navigation by the Coast Guard

to mark the course of such events. 33 C.F.R.

§ 62.01-35(a) (1974).

A regatta, called the Seafair Unlimited

Hydroplane Regatta, is conducted each year on

Lake Washington. The sponsors of the 1972 regatta

furnished the Coast Guard with a detailed survey

drawing of the area in Lake Washington where

the regatta was to be held and where buoys were

to be set. The drawing, however, did not show

the location of Bell's cable here involved. on

July 26, 1972, as the Coast Guard buoy tender,

FIR, was putting buoy c“ into place, the buoy's

anchor fouled Bell's submarine cable, causing the

damage that is the subject of this action.

The action was brought by Bell invoking the

admiralty and maritime jurisdiction of the federal

courts, and charging the United States with negli-

gence in issuing the Seafair chart, which had

not been revised to show Bell's cable area, and

charging the Coast Guard with negligence in

using such a chart, although an available current

chart did show the area and a local notice to

mariners had set forth its location. The United

States denied negligence and as an affirmative

defense alleged that Bell was precluded from

recovery by the terms of the very permit granting

it its cable rights in Lake Washington. Bell

moved for summary judgment, contending that clause

(g) of the permit was inconsistent with the waiver

of sovereign immunity set forth in the Public

Vessels Act, 46 U.S.C. 1781, 13] and the Suits

3. “A Libel in personam in admiralty may be

brought against the United States, or a peti-

tion impleading the United States, for damages

caused by a public vessel of the United

States, and for compensation for towage and

salvage services, including contract salvage,

A-8

in Admiralty Act, 46 U.S.C. $ 742.[4] The dist-

rict court agreed with Bell, found negligence per

se, and granted summary judgment.

[1,2] We cannot agree with the district

court in its view as to the effect of the waivers

set forth in the two Acts. They do grant federal

jurisdiction and constitute a consent by the

government to be sued, but they can hardly be

said to constitute a consent to judgment in all

cases. Liability remains to be proved in each

case. This is similar to the rule respecting

suits brought under the Federal Tort Claims Act.

That statute:

* „ „ confers jurisdiction to render

judgment upon * * * claims. But it does

not say that all claims must be allowed.

* „ „ Jurisdiction of the defendant now

exists where the defendant was immune from

suit before; it remains for courts, in

exercise of their jurisdiction, to deter-

mine whether any claim is recognizable in

law."

Feres v. United States, 340 U.S. 135, 140-41,

Ct. . . Ed. 152 (1940).

The Public Vessels Act and the Suits in

Admiralty Act do not purport to strip the

rendered to a public vessel of the United

States: Provided, That the cause of action

arose after the 6th day of April, 1920."

4. “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 or property were involved, a proceed-

ing in admiralty could de maintained, any

appropriate non jury proceeding in personas

may be brought against the United States or

against any corporation mentioned in section

741 of this title * .“

A-9

government of the power to control the rights of

persons to place obstructions to navigation in

navigable waters of the United States. In absence

of some more explicit indication of intent, the

power of the United States must be held to con-

tinue unimpaired to deny permits or, in granting

them, to impose conditions that are relevant to

the regulatory purpose.

The effect of the condition here imposed

is simply to place upon the permittee the risk

of damage to the permitted structure resulting

from activity of the United States that is under-

taken to meet its continuing obligations respect-

ing navigation. The condition is not, then,

an outright exercise of sovereign power for the

protection of the sovereign--such an exercise as

might be said to have been foregone by the waiver

of immunity. Rather, it is an aid to the carry-

ing out of special duties and responsibilities

imposed on the sovereign by law, and in that

respect deals with problems that the very grant

or permit would operate to create. It is Limited

in its scope to the area occupied by those respon-

siblities and those special problems. In our

judgment it is, then, rational and relevant to

the regulatory purpose and falls within the reg-

ulatory power.

This does not serve to place the United

States in a position more favorable than that

which a private person would occupy, contrary

to the intent traditionally attributed to pro-

visions for waiver of sovereign immunity. See

Johnson, Liability of the United States for Mari-

time Torts, . "

[sic]* The private person hypothesized in these

circumstances is the owner of land from whom an

easement is sought by one having no power to

compel a grant or demand passage. The question

is whether such a private person, in his power

* This citation should read 10 U.Rich.L.Rev.

527, 529 (1976).

A-10

to attach conditions to an easement he was not

otherwise obliged to grant, is less favored in

the law than the United States is here held to

be. We do not perceive that he is.

Finally, we note that holding clause (g)

to be unenforceable would do more than relieve

Bell of a condition it regards as improper. It

would, in effect, operate to render persons in-

competent to secure desired benefits by way of

contract, since they could no longer effectively

commit themselves to conditions they may be

entirely willing to assume in order to obtain

their permit. If such a result is to follow from

a waiver of sovereign immunity it should, in our

judgment, be by a more clear expression of legis-

lative intent.

We conclude that clause (g) is consistent

with the provisions of both the Public Vessels

Act and the Suits in Admiralty Act and is within

the delegated authority of the Secretary of the

Army. [5]

Summary judgment is reversed. The case is

remanded for further proceedings.

5. Appellant has also argued that the dominant

navigational servitude of the United States,

see United States v. Virginia Elec. & Power

Co., : -28, Ct. ;

United States v. Chica

L. Ed. 2d 838 (1961); .

Milwaukee, St. Paul & Pac. K. Co., U.S.

9 297, Ct. 9 L.Ed. 1064

(1941); Umited States v. Appalachian Elec.

Power Co., 8. " -24, 8. Ct.

. -Ed. 243 (1941), precludes recovery

by Bell in this case. Since we have found

that recovery is barred on other grounds we

need not reach this issue.

411

APPENDIX C

STATUTES AND REGULATIONS INVOLVED

33 USC § 1 in pertinent part:

It shall be the duty of the Secretary

of the Army to prescribe such regulations

for the use, administration, and navigation

of the navigable waters of the United

States as in his judgment the public neces-

sity may require for the protection of life

and property, or of operations of the

United States in channel improvement,

covering all matters not specifically dele-

gated by law to some other executive de-

partment... .

46 USC § 742 in pertinent part:

In cases where if such vessel were pri-

vately owned or operated, or if such cargo

were privately owned or possessed, or if

a private person or property were involved,

a proceeding in admiralty could be main-

tained, any appropriate non jury proceed-

ing in personam may be brought against

the United States or against any corpora-

tion mentioned in section 741 of this

t it le

46 USC § 746:

The United States or a corporation de-

scribed in section 741 of this title shall

be entitled to the benefits of all exemp-

tions and of all limitations of liability

accorded by law to the owners, charterers,

operators, or agents of vessels.

46 USC § 781:

A libel in personam in admiralty may be

brought against the United States, or a

petition impleading the United States for

46 USC

A-12

damages caused by a public vessel of the

United States, and for compensation for

towage and salvage services, including

contract salvage, rendered to a public

vessel of the United States: Provided,

That the cause of action arose after the

6th day of April, 1920.

§ 789:

The United States shall be entitled

to the benefits of all exemptions and of

all limitations of liability accorded by

law to the owners, charterers, operators

or agents of vessels.

33 C. F. K. § 209.130(c)(2)(vii) (1974), referred

to in this petition as "Clause (g)":