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

No. 76-1515

In the Supreme Court of the

OcroKBER TERM, 1977

PaciFic NORTHWEST BELL TELEPHONE COMPANY.

PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wapt H. McCreer. Jr..

Solicitor General,

Department of Justice.

Washington, D.C. 20530.

In the Supreme Court of the United States

OcTOBER TERM, 1977

No. 76-1515

PAciFiIC NORTHWEST BELL TELEPHONE COMPANY,

PETITIONER ,

¥.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

a

BRIEF FOR THE UNITED STATES IN OPPOSITION

8

OPINION BELOW

The opinion of the court of appeals (Pet. App. B)

is reported at 549 F. 2d 1313. The opimon of the dis-

trict court (Pet. App. A) is reported at 378 F. Supp.

297.

JURISDICTION

The judgment of the court of appeals was entered

on February 4, 1977. The petition for certiorari was

filed on May 2, 1977. The jurisdiction of this Court ts

invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether a limitation on government lability con-

tained in a permit issued by the United States Army

a Corps of Engineers ts valid.

| aq) :

2

STATEMENT

Sometime prior to April 12, 1965, petitioner applied to

the Secretary of the Army for a permit to lay a submarine

cable in Lake Washington, a navigable body of water near

Seattle (Pet. App. A-6). Petitioner was required to apply for

the permit because the cable constituted an obstruction to

navigation, and the creation of such an obstruction in

navigable waters of the United States is expressly prohibited

by the Rivers and Harbors Act of 1899, 30 Stat. LISI, 33

U.S.C. 403. unless authorized by the Secretary of the Army

upon the recommendation of the Chief of the Army Corps

of Engineers. The Secretary approved petitioner's

application and issued the permit on April 12, 1965 (Pet.

App. A-6). As required by 33. C.F.R. 209. 130(c) 2 vii) (1974

rev.), the permit contained a clause absolving the United

States from lability for damage to the cable “which may be

caused by or result from future operations undertaken by

the Government for the conservation or improvement oi

navigation, or for other purposes * * *” (Pet. 9).

Each year a regatta, called the Seafair Unlimited

Hydroplane Regatta, is conducted on Lake Washington

(Pet. App. A-7). The sponsors of the 1972 regatta

called upon the Coast Guard to place large buoys in

Lake Washington in order to mark the course (ibid.).

The Commandant of the Coast Guard is authorized by

46 U.S.C. 454 to issue regulations to promote safety

on navigable waters of the United States during regattas

or marine parades, and 33 C.F.R. 62.01-35S(a) specilically

provides for the establishment of aids to navigation

by the Coast Guard to mark the course in such events.

Accordingly, the Coast Guard agreed to place buoys

to mark the course of the 1972 regatta in Lake Wash-

ington, and the sponsors provided the Coast Guard

with a detailed survey drawing of the area in Lake

3

Washington where the regatta was to be held and the

buoys to be set (Pet. App. A-7). The survey did not show the

location of petitioner's submarine cable (/hid.). On July

26. 1972, as the Coast Guard buoy tender FIR was

putting one of the buoys in place, the buoy’s anchor

fouled petitioner's submarine cable, causing damage in

the claimed amount of $56,000 (id. at A-5. A-7.)

After the Coast Guard refused to pay for the damage.

petitioner brought this action under the Suits in Ad-

miralty Act, 41 Stat. 525, as amended, 46 U.S.C. 741 ef seg..

and the Public Vessels Act, 43 Stat. 1112, 46 U.S.C. 781 e

seq., alleging negligence (Pet. 7). The government denied

negligence and, as an affirmat.ve defense. alleged that

petitioner was precluded from recovery by the express

terms of the exculpatory clause in the permit granting

petitioner permission to lay the submarine cable in Lake

Washington (Pet. App. A-7).

The district court held that the exculpatory clause in

the permit was “invalid” because it was “beyond the

scope of, or in conflict with” the Suits in Admiralty

Act and the Public Vessels Act. “which were designed

to subject the United States to maritime tort liability

to the same extent as a private person” (Pet. App.

A-2 to A-3). and granted summary judgment for petitioner.

The court of appeals reversed (Pet. App. A-4 to A-10).

The court observed that “[t}he Public Vessels Act and

the Suits in Admiralty Act do not purport to strip the

government of the power to control the rights of persons

to place obstructions to navigation in navigable waters

of the United States. * * * [T}he power of the United

States must be held to continue unimpaired to deny

permits or. in granting them, to impose conditions that

are relevant to the regulatory purpose” (Pet. App. A-*

to A-9). It concluded that the exculpatory clause at tssuc

4

in this case was “rational and relevant to the regulatory

purpose and falls within the regulatory power” (Pet. App.

A-9) and. accordingly. was valid.

ARGUMENT

The decision of the court of appeals is correct and ts

in accord with that of the only other court of appeals to

have considered the issue. See Boston Edison Co. v. Great

Lakes Dredge & Dock Co., 423 F.2d 891 (C.A. 1). Review

by this Court is not warranted.

1. Petitioner contends (Pet. I1-12, 18-19) that the

exculpatory clause at issue here is inconsistent with the

general waiver of sovereign immunity contained in

both the Public Vessels Act, 46 U.S.C. 781, and the Suits

in Admiralty Act, 46 U.S.C. 742. There is no conflict. The

waivers of immunity in those Acts remove a jurisdic-

tional defense that the sovereign otherwise could assert.

but they leave intact the government's right to assert

substantive defenses on the question of liability. See

Feres v. United States, 340 U.S. 135, 140-141.

Petitioner suggests. however, that these statutes ex-

press a public policy at odds with the contested clause.

But the statutes affirmatively provide that the United

States is “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” (46 U.S.C. 746).

and they limit recovery to that which could be had if “a

private person or property were involved” (46 U.S.C. 742).

See also Weverhaeuser S.S. Co. v. United States, 372

U.S. 597. 600: Canadian Aviator, Lid. vy. United States.

324 U.S. 215. 228: McMahon v. Pan American World

Airwars, Inc., 297 F. 2d 268, 269(C.A. 5). The Acts look to-

ward placing the United States in the same position as

private litigants. There is no suggestion that the United

States must go turther and leave itself open to lia-

5

bility in situations where private persons would be

permitted to limit their liability. Since private persons

could condition the grant of an casement by limiting

their liability for damage done by them to property in-

stalled on the easement.' there is no reason why the

United States should not be permitted to do likewise.

To the contrary, it ts established that. in cases arising

under analogous provisions of the Tart Claims Act.

the United States may obtain, or benefit from. releases

of liability. See Montellier v. United States, 315 F. 2d 180

(C.A. 2); Matland vy. United States, 285 &. 2d 752(C.A. 3).

2. Petitioner contends (Pet. 12, 17-18). however. that

regardless of the United States’ general authority to limit its

lability. the limitation of liability at issue here was in excess

of the Secretary of the Army's authority to insure the salety

of navigable waters.

The Secretary of the Army is required in 33 U.S.C. 1 “to

prescribe such regulations 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

protection of life and property. or of operations of the

United States in channel improvement * * *.~ Pursuant to

this direction, and to his authority under the Rivers and

Harbors Act of 1899, 33 U.S.C. 403, to issue permits tor

structures built in the navigable waters of the United States.

‘Petitioner asserts that the analogy to a private landowner

laulty because the government docs not have a ice semple tithe to

the river bottom but only regulates mm the exerene of ts dommant

navigational servitude. The exact extent of the government's legal

micres os. however, ummateral. Since petitroner admits that u

was required to obtaan a perma (Pet. 5). a can hardly argue that no

vehicle exits to which conditions may be attached. See generally

! mited States \. Appatacdnan Llectric Power Co. MAUS. 377 423-428

fgesxcrament has broad authority to attach conditions to permits

msued pursuant to the federal power over navigable rivers).

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the Secretary has issued regulations setting forth the

requirements and conditions upon which obstructions may

be placed. and work may be performed. in navigable waters.

including the requirement that all permits include the

condition at issue in this case.

The United States may carry out operations with re-

gard to its responsibilities on navigable rivers, including

operations directed at aiding navigation, such as the buoy-

mooring that fouled petitioner's cable in this case. The

grant of permission to place structures in such waters,

and the actual placing of the structures, creates the pos-

sibility that the government's operations may be hindered

by. or interfere with or damage, those structures. Regu-

lations allocating the risks created by the permit are

proper, as the court of appeals noted, to “deal{ |] with

problems that the very grant or permit would operate

to create”.- Further, the particular manner in which the

Secretary chose to allocate the risks has not been shown

to be contrary to the legislative intent. Accordingly, the

regulations are “rational and relevant to the regulatory

purpose and tall[ | within the regulatory power” (Pet.

App. A-9).

‘Petitioner suggests (Pet. 20) on the basis of two cases, Ael/y v. United

States, 531 &. 2d 1144, 1148-1149 (C_A. 2). and De Bardelehen Marine

Corp. \. United States, 451 &. 2d 140, 145 ¢C_A. 5). that those circuits

would decide this issue dilicrently trom the court of appeals below. Ihe

language petitioner considered significant in Ae//y that the Surts in

Admiralty Act must be given its “plain and ordinary meaning” — merely

enunciated a general principle of construction. Ae// dealt with the

unrelated question whether admiralty purtsdiction extends to a pleasure-

vessel aceident. Similarly. the dictum in De Bardelehen on which

petitioner rehes. which stated generally the mtent of the Suits in

Admiralty Act. did not address the question here but rather the quite

diiferent question whether the statutory exceptions to the Lort Claims

Nct are umported inte the Suns on Admuralty Act.

7

CONCLUSION

The petition tor a writ of certiorari should be denied.

Respectfuily submitted.

Wapr H. McCrer, Jr.,

Solicitor General.

Jury 1977.

DOJ- 1977-07