Petition — Faust v. South Carolina State Highway Department

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Sa~ 1501

~ FILED

IN THE

SUPREME COURT OF THE UNITED S$

October Term, 1983

WAR AR 1904

FR WL STEVAS

CLERK

Alean Hester Faust, Administratrix of

the Estate of Charles Lonnie Faust,

Deceased, Tommy Bennett and Curtis

Muldrow, Petitioners,

Vv.

South Carolina State Highway Department,

and the United States of America,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRI OF CERTIORARI

D. A. Brockinton, Jr.

Brockinton, Brockinton and Smith

2 Prioleau Street

P. O. Box 663

Cha::leston, S.C. 29402

(803) 722-8845

Douglas L. Hinds

Hal M. Stranwxe

Hinds, Cowan and

Strange

304 Front Street

P. O. Drawer 459 29440

Georgetown,S.C. 29440

(803) 527-2441

Reginald C Brown, Jr.

J. Anderson Berly, III

William P. Hatfield

(Attorney of Record)

Hyman, Morgan, Brown,

Jeffords, Rushton &

Hatfield :

P. O. Box 1770

Florence, S.C. 29503

(803) 662-6321

Attorneys for Petitioners

March 9 _, 1984 “

QUESTIONS PRESENTED

Did the United States owe petitioners a

duty in Admiralty and may the United States

be held liable for personal injuries and

wrongful death suffered by pleasure-boaters

within the Intracoastal Waterway as a

result of the failure of the Coast Guard

and Corps of Engineers to responsibly mark,

sign, or in the alternative remove a known

hazard to navigation which the United

States had actively undertaken to regulate,

control and remedy?

Did the State of South Carolina subject

itself to the plenary Federal power over

Admiralty and Commerce and waive its

Eleventh Amendment immunity and become

liable in Admiralty for the personal

injuries and wrongful death negligently

inflicted upon the petitioners when the

State, by voluntary legislative enactment

actively undertook ownership and operation

of the South’ Island Cable Ferry across the

Atlantic Intracoastal Waterway?

TABLE OF CONTENTS

Page

Questions Presented....seeeeeee 1

Table of Authorities......+++6+. vi

Opinions Below. ..cccssceeseveesXlV

JUPISGICTION. .cceeeesesesesseeeXlV

Constitution, Treaties , Sta-

tutes and Regulations.....ee+++ XV

Statement of the Case.....eee+- lL

Reasons for Granting the Writ..

INTRODUCTION:

This Court is the final

arbiter over the circuits’

confusion and conflict as

to the proper application

of the Suits in Admiralty

Act and the Eleventh

Amendment in Admiralty... 27

(a) Decisional conflict ;

within the Fourth

GirewsGececvedccrecceece 27

(b) Decisional conflict

between other Courts of

APpe@l.wsscscccceenes 27

(ec) Departure from prin-

ciples of maritime

UBWeceosdoaneecoevess 28

(d) Decisional conflict

with controlling

Supreme Court pre-

COGEONt.cccccceceves 28

II.

(e) Important unsettled

federal questions

Gecided..cccscesecses 29

THE UNITED STATES COAST

GUARD AND CORPS OF ENGINEERS

OWED PETITIONERS A DUTY IN

ADMIRALTY AND THEY BECAME

LIABLE FOR THEIR FAILURE TO

RESPONSIBLY MARK, SIGN, OR

IN THE ATERNATIVE REMOVE THE

KNOWN HAZARD TO NAVIGATION

WHICH THEY HAD ACTIVELY

UNDERTAKEN TO REGULATE

AND GOT Olse sc ecvecicvsese 32

A. The (SIAA) and the Non-

applicability of the

Slesrettonac Function

Exemption.....seees 33

B. The Indian Towing

Argument...eeeesees 37

C. The Statutory Liabili-

ties of the United States

Government....cesee Al

D. General Tort Liability 46

THE STATE OF SOUTH CAROLINA

WAIVED ITS ELEVENTH AMEND-

MENT IMMUNITY AND IS LIABLE

IN ADMIRALTY FOR THE DAMAGES

AND INJURIES SUFFERED BY THE

PETITIONERS... .cccccccccesess 4g

A. Introduction... cccccees 49

B. Waiver Purs t to

a OMeccceeseseseseses 50

Page

C. Waiver Under Moragne... 56

D. Applicability of the

Sivens and a Act..60

Comelusion.cccccccccocccececececes 64

APPENDIX:

APPENdG1ix Avcececccccccesscsessess Aml

Appendix B.ncccccccccccccscccccee Bol

APPOENd1X Curccccccccccccccccccccee ©

Appendix D..cscesccccessccesesess Del

Appendix Bececocoaddsevececésececes E-1

TABLE GF AUTHORITIES

Cases: Page

Afran Transp. Co. v. U.S., 435

F.2d 213 (2nd Cir. 1970).... 44

American Export Lines, Inc. v.

Alvez, 446 U.S. 274, 100 S.

Ct. 1673, 64 L.Ed.2d 284

PRG rs b.da ins Ob Chews 0 kare bee~ 29, 30

Atlantic Refining Co. v. Moller,

' Moller, 320 U.S. 462, 64

S.Ct. 225, 88 L.E. 168,

reh. den. 321 U.S. 801, 64

S.Ct. 516, 88 L.E. 1088.

CR e de ctdde cds Coeds cc 62

Boston Edison Co. v. Great

Lake Dredge and Dock Co.,

423 F.2d 891 (lst Cir.

ROTO badd b.0d Hatt bc 60e6.0 cee 35

California v. Sierra Club, et.

al., 451 U.S. 287, 101 S.Ct.

1775, 1782, 68 L.Ed. 2d 101

Pains coebConteues bende 61

Chesapeake Bay Briige and Tunnel

District v. Lauritzen, 404

F.2d 1001 (4th Cir. 1968).. 20. 52,

Cort v. Ash, 422 U.S. 66 , 95 S.

Ct. 2880, 45 L.E.2da 26

CROTS a wee wewkwbs cts vetwase 62

Dalldorf v. Higgerson-Buchanan,

Inc., 402 F.2d 419 (4th

Cir. TGR we kadad's tte ncn sens 37

DeBardeleben Marine Corp. v. Uni-

Cases: Page

ted States, 451 F.2d 140

(5th Cir. LSTA} ccvesecccvde 1 e 34,

Doyle v. United States, 441 F.

Supp 701 (D.C.S.C. 1977)... 9

Eastern Transportation Co. v.

United States, 272 U.S.

675, 47 S.Ct. 289, 71 L.

Ed. 472 CEO Dee vicaxvecsecs 46

Ecelman v. Jordan, 415 U.S. 651,

94 S.Ct. 1347, 39 L.Ed.2d

662 (1974) reh. den. 416 U.S.

R666 600 08h ON 0 66.660 %.0% 60% 51

Employees v. Missouri Public

Health Department, 411 U.S.

279, 93 S.Ct. 1614, 36 L.

Ed. 2d 251 (Rar eet eescne ee 51

Florida Dept. of State v. Trea-

sure Salvors, 102 S.Ct.

3304 CLOGR shin wvewhinneeae 50

Gaspar v. United States, 460 F.

Supp. 656 (D.C. Mass. 1978). 34

Gercy v. United States, 540 F.2d

536 (lst Cir. BONG) 6.0 sé eas 34

Greer v. U.S., 505 F.2d 90, (5th

Circuit AOTR) a ciceeckeWe ede 41,44

Hogge v. S.S. Yorkmar, 434 F.Supp.

715 (D.C.Md. MTT Rackecdvcs 42

Indian Towing Co. v. United

States, 350 U.S. 61, 100

L.Ed. 48, 76 S.Ct. 122

Cases: Page

(1955) esuccudkéisecesccwutoade 28 , 37,

In Re Holoholo, 512 F.Supp. 889

(D.C. Ha. 1) PR Rare eri 59

In Re New York, 256 U.S. 490,

41 S.Ct. 588, 65 L.E.

1057 CZOSI dks dance cctatacse 50

Knickerbocker Ice Co. v. Ste-

wart, 253 U.S. 149, 40 S.

Ct. 438, 64 L.Ed. 834

( 30S) «sé 60k obb6 00606 6é06 so 56

Lane v. United States, 529 F.2d

175 (4th Cir. LOTS) coedece 27,34

35,36,

37,41,

Law v. Sea Drilling Corp., 523

F.2d 793 (5th Cir. 1975)... 58

Lynch v. United States Dept. of

Army Corp. of Engineers, 474

F.Supp. 545, (D.C.Md. 1978),

aff'd without opine?

ROPER hoa od meseniieas can 35

Magno v. Corros, 630 F.2d 1224

(4th Cir. 1980), cert. den.,

451 U.S. GTO oo tete est euee 39,40

Maryland v. Wirtz, 392 U.S. 183

88 S.Ct. 2017, 20 L.Ed.

2d 1020 C1968) o cisvccccness 54

Mitchell v. Trawler Racer, Inc.

362 U.S. 539, 80 S.Ct. 926,

4 L.Ed.2d 941 (1960)...... 31

Cases: Page

Mobile Oil Corp. v. Higginbothan,

436 U.S. 618, 56 L.Ed.2da

581, 98 S.Ct. 2010 (1978).. 28

Moragne v. States Marine Lines,

Inc., 398 U.S. 375, 90 S.Ct.

1772, 26 L.E.2d 339 (1970).. 28,29,

30,50,

56,57,

Norfolk and Wester Co. v. U.S.,

641 F.24 5.201 (6th Cir.

RD bake cebetdsctabescdéne 27; 28

Offshore Transportation Corp. v.

United States, 465 F.Supp.

976 (E.D. La. 1979)...e6056- 34,41

Parden v. Terminal Railway Co.

of Alabama, 377 U.S. 184,

12 L.E.2d 233, 84 S.Ct.

1207 reh. den., 377 U.S.

1010, I2 L.Ed.2d 1057, 84

S.Ct. 1903 () ) Fee ae 28 »50,

ag »55

Red Star Towing and Transp. v.

Dept. of Transp. of New

Jersey, 423 F.2d 104 (3rd

Cir. IOTOD cence cceecscoeotses 61,62

Reliable Transfer Co., Inc., v.

U.S., 497 F.2d 1036 (2nd

Cir. 1974), aff'd 421 U.S,

BENS +s biwkne éhcr ated e 44

Riggle v. State of California,

577 F.2d 579 (9th Cir.

DOUG) 6s chee vdsce6eseons bs 27,61

Cases:

Sanitary District of Chicago v.

The United States, 266 U.S.

405, 45 8.Ct. 176, 69 L.Ed.

352 CEO) oc abode cb acd uo.dwe

Sea-land Services v. Gaudet, 414

U.S. 573, 94 S.Ct. 806, 39

L.Ed.2d 9 (1974) reh. den.

415 U.S. 986, 94 S.Ct. 1582

39 L.Ed. 2d Oe ek ck

Somerset Seafood Co. v. United

States, 193 F.2d 631, 635

(4th Cir. 1951) cc'crevccevee

The Seagull, 21 F. Cas. 909 (No.

12,578) (C.C. Md. 1865)....

The Snug Harbor, 40 F.2d 27

(4th Cir. 1996) ve tcvctotobs

The William C. Atwater, 110

F.2d 644 (2nd Cir. 1940)...

Transamerica Mortgage Advisors,

Inc. v. Lewis, 444 U.S. 11

100 S.Ct. 242, 62 L.E.2d

146 CASTS). cidcctoadees sheer

Tringali Brothers v. U.S., 630

F.2d, 1089 (5th Cir. 1980).

United States v. Perma Paving

Co., 332 F.2d 754 (2nd

Cir. 1969) oiddoadeccte bebe ce

United’ States v. Reliable Trans-

fer Co., Inc., 421 U.S. 397,

95 S.Ct. 1708, 44 L.E.2d

251 C1973) -cceseseececedoces

Page

28 , 30

48,54

34,46

28,37,

Cases:

United Transportation Union v.

Long Island Rail Road Co.,

et. al., 455 U.S. 678,

102 S.ct. 1349, 72 L.E.

2d 547 ¢ } a Oe

Universities Research Assoc.,

Inc. v. Coutu, 450 U.S.

754, 101 S.Ct. 1451, 67

L.E 2d 662 CREEL cce'tscs os

Wyandotte Trans. Co. v. The

United States, 389 U.S.

191, 88 S.Ct. 379, 19 L.Ed.

2d ho7 FRET o Us & been se2 ue

Zabala Clemente v. The United

States, 567 F.2d 1140

(lst Cir. 1977), cert. den.,

435 U.S. 1006 6.0) Paes

Federal Statutes:

28 U.S.C.A. $1333... ee eeeeeeeees

33 U.S.C.Ae S$lecccccccccccccees

33 U.S.C.A. $HOL wocceeecvevees

33 U.S.C.An $803 woccccccvccces

SR. B.A GREE 6c Aicnreidvenns

33°G.Bs0 A. GAOD ccsrcccicncees

9S GiS.0.Fe- GREE 66k i508 00 cK50 0

53: OBA. GREE Ho ocee cetincecs

33 W.B.C.A. SAIN csccescccccese

LN US.CAs GBLisscccecccecees

Page

55,56

17,41

41,44

Federal Statutes:

14 U.S.C.A. EGwhens tas cetouse

46 U.S.C.A. §741 et. seq., The

Suits in Admiralty Act...

46 U.S.C.A. §761 et. seq., The

Death on the Hi eas

ROS oc 0106050 cesenssesbeeceose

46 U.S.C.A. §688, The Jones Act..

State Statutes:

South Carolina Code §57-15-140

ERT Gb we 66 6.066 6056-6660 00066

Acts:

Act 896 of Acts of 1934, 38 S.

at L. BO Te odececedebeecoon

Act 29 of the Acts of 1947, 45

Ss. at L. ls t6b 6066 ten ae

Annotations:

19 A.L.R. Fed. 282... eeeeeees

Regulations:

33 CFR 209 et. seq....ssseeeees

33 CFR §66.01-1 et. seq........

33 CPR 320 et. SOgesssseceeeees

Treatises:

Restatement of Torts 2d $323,

CIOGS) ccceccéscecondawebec

Restatement of Torts 2d §324 A

Page

41,44 F

26,33

57,60

2,52

17,24

Treatises:

CROSS) Sic cccccccecescecves

Restatement of Torts 2(nd) §343

[ ais o 40 ud 0 one 6s badd ooo

Restatement of Torts 2(nd) §364

PEO eeb bee eeeeetsboaevecene

Prosser, The Law of Torts,

P- 172 (ith Ed. oy ya

Constitution:

Amendment Bbsecoocescvccceeccee

OPINION BELOW

The official Opinion of the United

States Court of Appeals for the Fourth

Circuit is found in Appendix B infra,

pages B-1 to B-154 and is yet unreported.

The official denial of the petitioner's

petition and request for an en banc

rehearing is found in Appendix A infra,

pages A-1 to A-7 but is yet unreported.

The Opinion of the District Court is found

in Appendix C infra, pages 1 - 109 and is :

reported in 527 F.Supp. 1021 (D.C.S.C.

1981) .

JURISDICTION

The judgement of the United States

District Court of Appeals for the Fourth

Circuit was entered on December 13, 1983

upon the denial of the petitioners' request

for en banc rehearing. This petition was

timely filed within ninety days as reyuired

by 28 U.S.C. §2101 (c). The jurisdiction

of this Court is invoked under 28 U.S.C.A. ,

§1254(1).

CONSTITUTION, TREATIES, STATUTES AND REGU-

LATIONS

This case involves the Eleventh

Amendment of the United States

Constitution as well as the following

Statutes, Acts and Regulations, all of

which are set forth verbatim in Appendix

E, infra, at pages E-1 to E-1-29. The

citation for these materials are as

follows:

33 U.S.C. §§401, 403, 406, 409, 411, 413,

and 414

14 U.S.C. §§$81, 86 |

46 U.S.C. §§742, et. seg., The Suits in

Admiralty Act

46 U.S.C. §761, et. seq., Death on the High

Seas Act

46 U.S.C. §688, et. seqg., The Jones Act

§57-15-140 South Carolina Code of Laws

1976, as amended

Act No. 896 of the Acts and Joint

Resolutions of the State of South

Carolina, 1934, 38 S. at L. 1539

Act. No. 29 of the Acts and Joint

Resolutions of the State of South

Carolina, 1947, 45 S. at L. 44

33 C.F.R. 209 and various subparts.

33 C.F.R. 66.01-1 and various subparts.

33 C.F.R,. 320 and various subparts.

STATEMENT OF THE CASE

While the South Island Ferry possess-~-

ed no patent harbingers of danger, it

caused numerous instances of tragedy, death

and destruction. One instance occurred on

the night of December 11, 1977 when Charles

L. Faust was killed and his two companions,

Tommy Bennett and Curtis Muldrow, were

injured when Faust's 18 foot motorboat boat

struck an invisible 5/8 inch steel guide

cable which spanned the width of the

Atlantic Intracoastal Waterway, hereinafter

A.I.W., approximately 3 to 4 feet above the

water's surface.

On that morning, they left their homes

in Florence, South Carolina for Georgetown,

South Carolina, a distance of some seventy

miles for a day of fishing in Faust's 18

foot motorboat on Winyah Bay, which abuts

the Estherville-Minim canal, a part of the

(A.I.W.). Shortly after their voyage

began, they came upon "Happy" Hendricks, a

local commercial fisherman stranded in his

disabled boat, who they picked up and who

agreed to direct and accompany them to a

good fishing area. As darkness approached,

the four headed back to Hendricks' disabled

boat which they then towed to another local

landing. As they left Hendricks, they asked

directions back to the "boat landing".

Mistakenly believing that they had put in

at the South Island Ferry site landing,

Hendricks directed them there. Following

those misconceived directions, at about

6:10 p.m. Faust headed his boat from Winyah

Bay into the Waterway, across which lay the

ferry's invisible cable.

The South Carolina State Highway De-

partment had operated this cable ferry for

thirty years across the cunal, admittedly

part of the A.I.W. pursuant to Act No. 29

of the Acts of 1947, 45 S. at L. 44;

§57-15-140 of the South Carolina Code of

Laws (1976) in order to provide for trans-

OSE eae

canal transportation between the mainland

and South Island (Appendix E-2 to p. E-5.)

When at rest the ferry was located at South

Island. In operation, the ferry was

propelled across the 300 foot wide canal by

a cable system and was guided and

stabilized by a 5/8 inch steel cable

permanently affixed to each side of the

canal. The ferry operator controlled the

engine (located on land) by a manual

throttle operable only from inside the

ferry's cabin. When the operator activated

the engine even if the ferry was not yet

underway, the steel guide cable became taut

and rose approximately four feet above the

water across the width of the canal, thus

totally obstructing passage on the canal.

(When the engine was not activated, the

guide cable lay underwater along the bottom

of the canal.) By 1977, it had become a

muddy, brown color and was invisible at

night.(Tr. Vol. I, p. 173)

On the evening of Faust's death, there

were four sets of lighted "warning" signs

consisting of three signs per pole within

the waterway. Each sign was 500 feet north

and south of the ferry on each side of the

canal. The bottom sign on each pole bore

the message: CABLE ABOVE WATER WHEN FERRY

{N OPERATION. This legend conveyed the

message that there was a cable stretched

across the waterway when the ferry was "in

operation", but most significantly, it

failed to warn the boater that a cable was

still stretched taut four feet above and

across the waterway blocking passage even

when the ferry was docked on the mainland

side and did not appear to be "in

operation". These "warning" signs and

devices were insufficient and ineffective

to adequately convey the true nature of the

peril which lay ahead waiting to snare the

unwary boater.

The ferry itself had 5 revolving red

lights like those used on fire trucks and a

red strobe light atop its mast - all of

which operated when the ferry was making a

crossing. This mass of lights on the ferry

itself distracted a boater's attention away

from the "advance warning signs" located in

the Waterway and to the ferry. The ferry

also had on it a sign reading "Cable Ferry

Stop on Red".

The steel guide cable itself was

marked only by two highway stop signs.

These "trailing stop signs" attached to the

, gvide cable just behind the ferry and rose

above the water's surface with the cable

when the ferry's engine was on. These

signs were not lighted and were not visible

in the dark.

The ferry landing areas on both sides

of the waterway were lighted with mercury

vapor lights like those on city streets.

Thus, it would appear to a boater in the

nighttime, after his attention had been

attracted by the lights of the landing and

those on the ferry itself, that the cable

* alluded to in the "advance warning signs"

would no longer be stretched across the

waterway since the ferry was docked against

the mainland unloading cars, and since the

ferry would not appear to be "in operation"

since it was not moving. But, in order to

avoid the hazard, an approaching boater in

the nighttime, traveling at 20 miles per

hour, assuming that he even saw the advance

signs would within 18 seconds after passing

them, have to unscramble the jumbled mess-

ages and conclude that a cable was still

stretched above the surface of the water

behind the ferry even though it was tied to

a pier.

During the early evening of December

1l, 1977, as Faust was steering his boat in

accordance with Hendricks' directions, he

neither slowed down nor altered his course

and steered his boat straight and steady

down the center of the canal at 15 to 25

m.p.h. towards the ferry's 5/8 inch invisi-

ble steel guide cable which was taut and

spanning the canal approximately 4 feet

above the water. Faust's head was just

above the level of the boat's windshield;

Bennett stood beside Faust also looking out

ahead and Muldrow sat behind Faust in a

seat facing aft. The night was dark, clear

and cold.

As Faust's boat passed the warning

Signs, one does not know what the decedent

Paust saw or heard; one knows only that

Bennett saw a "glur" ["blur"] - "something

shining" to his left and heard the siren

only upon the boat striking the cable.

Muldrow did not see the signs either, and

like Bennett, only heard the siren at the

moment of impact.

The ferry operator was intermittently

unloading automobiles on the mainland side

of the canal. The ferry's lights were lit

but its siren was not being sounded contin-

uously since the operator had to leave the

cabin where the siren was controlled from

time to time as the cars were being un-

loaded. As the boat passed under the

cable, its windshield struck the cable and

the impact hurled Faust to the bottom of

the boat where he died from extensive in-

juries to his head, neck and back. Bennett

was thrown from the boat into the frigid

waters and Muldrow was tossed unconscious

into the bottom of the boat. Thus, in this

manner, the last of a series of some 40 ac-

cidents occurred involving boaters and this

cable ferry.

Between 1940 and 1975 the ferry and

its cable had been involved in approximate-

ly 40 accidents, most of which involved i

pleasure boats colliding with the cable.

Many of these were investigated by the

State and Coast Guard, the most significant

of which was in 1974 when Robert Fulton!

was killed.

At that time, the warning system was

somewhat different from that in December

1977. For example in 1974, the siren was

operative only before the ferry began a

crossing from the island side; not all

warning signs were illuminated; and, rele-

vant available nautical charts did not dis-

close that a cable ferry crossed the

A.I.W.

Between the Fulton and Faust acci-

dents, Coast Guard Commander Stewart, Ma-

rine Safety Officer for South Carolina on

November 20, 1974, informed his superior.of

the cable hazard and indicated that ap-

proaching vessels, despite the warning

signs, might not see the cable, but only _

the ferry. Stewart reported that he had

consulted with officials from the Highway

1 Doyle v. United States 441 F.Supp. 701

(D.C.S8.C. 19

Department on November 18, 1974 and that

agency was taking the following steps to

improve the situation: installing a switch

to allow the ferry operator to lower the

guide cable when the ferry wae moored on

the mainland side; installing on the ferry

a siren to be accessible to the operator at

all times; putting up four additional signs

to indicate more clearly the danger from

the cable; looking into alternative means

of providing access for South Island, in-

cluding a bridge or self-propelled ferry;

and cooperating with the Coast Guard to

conduct a training program leading to the

issuance of licenses for the ferry opera-

tors. Stewart advised his Commander that

",.-i1t is not in the best interest of the

Coast Guard for this [ferry] to become a

Coast-Guard vessel." He closed his letter

by saying that "...[cJompletion of the pre-

viously mentioned improvements should re-

sult in as safe an operation as is possible

- 10 - : Ly

hd "a

Bods

> Phi. ee

with a cable ferry," though his recommenda-

tions to the Highway Department [would]

contain a statement to the effect that

",...the only permanent means of removing

the hazard from the cable-type operation is

to remove the cables themselves." (Empha-

sis added. )

On November 21, 1974, Stewart wrote

Highway Engineer, Catoe, "...to provide

[Catoe] with recommendations intended to

assist ...in safety improvements at the

South Island Ferry" and informed him that

",..the only permanent means of removing

this hazard is to remove the cables thenm-

selves." (Emphasis added.) Stewart sug-

gested that, until that could be done, the

State should make the changes described in

his November 20 letter and further recom-

mended that the guide cable be installed on

a lower position on the ferry, so that the

risk of injury to persons as opposed to

vessels would be diminished.

On November 21, 1974, Catoe, in a memo

to the Highway "ngineer, indicated the fol- .

lowing changes, approved by Commander Ste-

wart, were to be implemented: installation

of new advance warning signs, to be illumi-

nated by l2-inch wig-wag warning lights;

painting on the ferry of stripes in orange

and white fluorescent paint; mounting on

the ferry of one 3-foot by 16-foot warning

Sign on each side of the vessel; installa-

tion of a red strobe light on the mast of

the ferry; installation of one red strobe

light on each side of the waterway, to ope-

rate only when the ferry was in operation;

and installation of a switch, to allow the

guide cable to be lowered by the operator

from the mainland side of the canal.

Catoe's memo requested the Highway Engi-

neer's permission to make these changes and

contained a postscript enclosing the addi-

tional recommendations made in Stewart's

November 21 letter.

- 12 <

On December 5, 1974, Cobb replied to

Catoe, approving the above changes and fur-

ther directed Catoe to comply with the

terms of Stewart's November 20 letter and

to give consideration to the changes sug-

gested in Stewart's November 21 letter.

Between October, 1974 and October,

1975, the Highway Department made only some

of the improvements recommended by Stewart

and approved by Cobb. Most importantly

though, the plan to install a switch to

permit the lowering of the cable from the

mainland side was never implemented, nor

was the guide cable ever placed at a lower

position on the ferry. Either measure

would almost certainly have peavinbal the

petitioners’ injuries, yet Stewart never

bothered to follow up to see if any of his

directives had been carried out.

Between November, 1975 and April,

1977, the Highway Department, inter alia,

installed back-up sirens on the "advance

- 13-

warning signs" north and south of the fer-

ry; erected a warning sign at the landing

next to the ferry site; placed on the ferry

itself a fluorescent striped warning sign;

and, installed the trailing stop sign.

On April l, 1977, District Judge Sol

Blatt, after concluding the trial on March

28-31, 1977 of Doyle v. United States, su-

ra, wrote Cobb a letter which stated in

part:

Despite the number of accidents

prior to the fatal accident [involving

Fulton] and the warnings and letters

written since October, 1974, very lit-

tle has been done to remedy the situa-

tion existing at the South Island fer-

ry. Not only did testimony reveal

what I think is the most dangerous

hazard to navigation that can be ima-

gined, but at the request of counsel

for both sides, I visited the scene,

and in my opinion, the situation was

even more dangerous than I had antici-

pated...I am thoroughly convinced that

someone else will be killed or badly

injured unless you do review your

files on this crossing and install a

safer method than is now used.

This letter predicted, with an eerie fore-

sight, the Faust tragedy which was to occur

within seven months.

On April 6, 1977, the Commander of the

Coast Guard District in Miami wrote Comman-

der Stewart's successor, as Officer in

Charge of Marine Inspection for the South

Carolina zone, to advise him that during

the Doyle trial, it had come to light that:

"the condition set up in one of the letters

from Commander Stewart, for additional

signs approximately 1000 feet up and down

the waterway from the ferry ccble, has not

been complied with; the ferry was carrying

more passengers than permitted by law; the

duties required of the ferry operator pre-

vented him from keeping a proper lookout;

and the ferry appears to operate with an

absolute minimum of supervision, by anyone

who is concerned with, or has knowledge of,

maritime law and regulations."

On April 7, 1977, Cobb replied to

Judge Blatt's letter and stated that he

felt that all feasible safety suggestions

from the Coast Guard had been implemented.

He also stated that the Highway Department

was discussing with the South Carolina At-

torney General four alternatives: (1) Con-

tinue operation of the present ferry, with

the resulting liability that may be involv-

ed; (2) Change the present ferry operations

to a self-propelled type which would in-

volve a substantial expenditure; (3) Con-

struct a bridge or structure to the island

for which the Department has no program for

funding, or; (4) Discontinue the ferry

operation (emphasis added). It was the

callous approach set forth in alternative

number (1), which preferred money to saving

lives, that was chosen.

On May 16, 1977, Captain Mitchell of

the Coast Guard's office of Marine Safety

in Charleston, S.C., wrote Catoe advising

him inter alia to advise the ferry opera-

tors to maintain a proper lockout, and,

that if the operators were given a flash-

light they could warn approaching vessels

of the cable at night by shining the light

on the cable and the stop signs attached to

it. But the operators were never equipped

with flashlights.

On August 17, 1977, the Corps con-

cluded that it had responsibilities con-

cerning the operation of the South Island

ferry. On that date the Corps' Acting Di-

vision Engineer of the South Atlantic Divi-

sion in Atlanta wrote Colonel Brown, the

District Engineer of the Corps in Charles-

ton, S.C., and stated in part:

2. Ferry cables are subject to regu-

lation by the Corps...under Section 10

of the 1899 Rivers and Harbors Act.

This finding is substantiated by the

reference to requirements for ferry

cables on page 4, paragraph 11, of EP

1145-2-1 dated October 1974 (Gray

Book) and 33 CFR 322.5(1) (3) printed

19 July 1977 in the Federal Register.

3. Inasmuch as the cables have been

found by a Federa stric ourt to

e ange rout and a hazard to naviga-

on e Strict should coordinate

Ww the ate e voas ua °

-17- *?

determine if additional warni

and/or osti is warranted ane to

seek voluntary removal of the cables.

In the event that you are unsuccessful

in voluntary removal, the District

should take appropriate legal action

concerning & structure... (Emphasis

added.)

On September 8, 1977, Brown wrote

the new Highway Engineer, Mr. Coffey, and

requested a meeting with Highway Department

officials, "to formulate a course of action

to abate any existing or foreseen hazard to

navigation which [the ferry] may pose."

Brown stated that "the Corps of Engineers

is the federal agency primarily responsible

for this type of activity, and has the law-

ful authority to permit and/or regulate its

continued operation."

At an October 14, 1977, meeting be-

tween the Corps, the Coast Guard, the High-

way Department, and the S.C. Wildlife and

Marine Resources Department, the Coast

Guard Commander stated that he had viewed

the warning system at the ferry and found

- 18 -

it adequate. A representative of the

Corps, however, stated that the present op-

eration of the ferry was hazardous and that

it was only a matter of time before the

Corps would have to close it. According-

ly, the State knew between August 17, 1977

and October 14, 1977, that in effect, the

ferry's authorization had been revoked and

that the cable ferry could no longer be

permitted to operate in that manner. Nev-

ertheless, the Highway Department continued

to ignore the Corps' directives until an

additional accident involving the cable oc-

curred on October 23, 1977 in which three

persons were injured.

On October 28, 1977, Brown prompted by

the recent accident, sent a telegram to

Coffey requesting a meeting to develop a

remedy to the ferry situation and directed

2. Tr. ps 671, lel. 16 to 25; p.672, 1.1. 1

- 5; plaintiff's Exhibit No. 21.

- 190 «

the Highway Department, pursuant to authori-

ty vested in the Corps pursuant to regula-

tions promulgated under the Rivers and Har-

bors Act of 1899, to minimize the operation

of the ferry.

On November 8 and 17, 1977, Coffey

wrote Brown, that a proposed revised

schedule would reduce the ferry crossings

from more than 30 per day to 24. Coffey al-

so stated inter alia that a back-up siren

would be installed on each side of the

ferry and 5 m.p.h. speed limit signs for

boats in the canal had been erected on each

side of the ferry crossing.

On November 18, 1977, Judge Blatt, in

Doyle vs. U.S., 441 F. Supp. at 701, held

that the injuries to the Doyle plaintiffs

were caused by the negligence and abuse of

discretion of the Corps and the Coast Guard

in failing to adequately warn vessels of

the danger of the ferry cable and in fail-

ing to take steps to improve the safety of

the situation.

On November 22, 1977, Brown wrote Cof-

fey, in response to his November 8 and 17

letters, that a proposed ferry operation

schedule was unacceptable since it would

result in only a 25% reduction in the num-

ber of crossings. Brown directed the

Highway Department to have in effect by De-

cember 2, 1977 a plan to further reduce the

the number of crossings, by scheduling

"minimal operation of the ferry to serve

the needs of the South Island residents on-

ly"; alter the wording of the "existing

warning signs...to stress the fact that

there is a cable across and above the water

surface when the ferry is in operation";

and, submit as agreed in the November 3

meeting, by December 2, 1977, "plans for a

permanent solution which will result in

complete removal of the cable associated

with the South Island ferry."

On December 1, 1977, Coffey advised

2 21 = hace eae

Brown that the Highway Department would

post flagmen with flashlights and public

address systems in boats upstream and

downstream of the ferry in hope that this

compromise plan would be acceptable.

By separate letter of December 1,

1977, Coffey wrote Brown confirming the

extension of the deadline to December 5,

1977, for the Highway Department's subomis-

sion of plans for a permanent solution to

the ferry problem. Coffey further stated

that his Department and others contemplated

taking prompt action to obtain funding for

a permanent solution.

On December 6, 1977, the Highway De-

partment installed the four bottom signs

reading CABLE ABOVE WATER WHEN FERRY IN OP-

ERATION. On December 9, 1977, Brown wrote

Coffey that the Highway Department's plans

to implement the revised schedule, add

warnings to the existing signs, and post

flagmen in the canal "were satisfactory and

in compliance with [Brown's] latest in-

structions and reiterated "[the Corps'] se-

rious concern over the [ferry cable hazard]

and [urged] that [the Highway Department]

secure an early removal of [the] cable."

But, Brown neither set time limits, nor

took actions to verify the State's compli-

ance with these directives.

Only after the Faust collision on De-

cember 11, 1977 did the two governments

move with any sense of urgency to remove

the acknowledged hazard. On December 12,

1977 the Highway Department belatedly auth-

orized the hiring of flagmen to operate the

advance warning boats previously proposed

by Coffey. Also, Highway Department Offi-

cials began corresponding with an engineer-

ing firm regarding a self-propelled ferry.

Specifications for the new self-propelled

ferry were completed in January 1978 and a

contract was let in February 1978.

In the meantime, on January 26, 1978,

- 23-

Brown wrote Cobb, the new Chief Highway

Commissioner, a highly suspect and self-

serving letter stating:

In accordance with...33 CFR

322.4(a)[sic], I have determined that

the South Island ferry is a permitted

structure since the cable was in-

stalled prior to 18 December 1968 and

there was no evidence available to the

Corps to indicate it posed a hazard to

navigation before the recent acci-

dents. °

Based upon the evidence presented

and the recent findings by a Federal

District Court Judge, I have deter-

mined that continued operation of the

cable ferry constitutes 1 hazard to

navigation in the area. In accordance

with 33 CFR 325.7..., I have reeval-

uated the circumstances and conditions

of the South Island ferry permit and

have determined that suspension of the

permit is in the public interest...

In the interim I consider that

continued modified operations current-

ly in effect may continue until 3

March 1978. At that time total sus-

pension of the operation of the cable

ferry must occur unless you receive

approval for operation from this of-

fice.

The March 3, 1978 deadline referred to

in the above letter was, as usual, put off

until April 29, 1978 when the self-

- 24 -

propelled ferry was put into operation at a

cost of approximately $100,000.00. The

total cost of the new ferry was paid by the

Highway Department out of funds on hand

before December 11, 1977 and it was fully

operational four months after Faust's

death.

Despite the fact that the Corps had

jurisdiction over the ferry site and was

charged with the responsibility of removing

obstructions in navigable waters it failed

to responsibly exercise its authority to

remove the admitted and acknowledged hazard

to navigation. Despite the fact that the

Coast Guard was charged with the duty of

responsibly marking obstructions in navi-

gable waters and with the duty of responsi-

bly maintaining and approving aids to navi-

gation, it too failed to responsibly exer-

cise its authority and duty to responsibly

sign and mark the acknowledged hazardous

crossings. And, despite the fact that the

South Carolina legislature had made the

State the owner and operator of the ferry,

and despite the well known risks involved

in its continued operation, the Highway De-

partment nevertheless opted to "...continue

operation of the present ferry, with the

resulting liabilities that might be

involved."

After the Faust collision, suit was

brought against the United States and State

of South Carolina as joint tort feasors for

the wrongful death of Faust and the person-

al injuries of Bennett and Muldrow. Juris-

diction was conferred by 28 U.S.C. §1333

and 46 U.S.C. §742, et. seq. (SIAA), The

Suits in Admiralty Act. After a bench

trial, a verdict was rendered for the peti-

tioners. The Court of Appeals panel then

reversed the District Court and set aside

the judgment rendered against both defen-

dants. In a 2-1 decision, the Court of Ap-

peals held that the United States owed no

statutory or common law duty to the peti-

tioners with respect to the cable because

the ferry was a "permitted" structure and

that the United States had unreviewable

discretion to ameliorate the hazard and

owed no duty under Indian Towing. The

Court further concluded that the Eleventh

Amendment insulated the State from a judg-

ment in Federal Court. A petition for an

en blanc rehearing was denied on December

13, 1983.

REASONS FOR GRANTING THE WRIT

Introduction

Certiorari should be granted because

the Fourth Circuit has issued an opinion in

conflict not only with itself, but also

with numerous decisions of other Courts of

Appeal. See, Lane v. United States, 529

F.2d 175 (4th Cir. 1975); Riggle v. State

of California, 577 F.2d 579 (9th Cir.

1978); DeBardeleben Marine Corp. v. United

States, 451 F.2d 140 (5th Cir. 1971); Nor-

5 a

folk and Western Co. v. U.S., 641 F.2d 1201

(6th Cir. 1980); and Tringali Brothers v.

U.S., 630 F.2d, 1089 (5th Cir. 1980). Ad-

ditionally, certiorari should be granted

because the Fourth Circuit has so far de-

parted from the well accepted general prin-

ciples of admiralty law as to require this

Court's exercise of its supervisory powers.

See Indian Towing Co. v. United States, 350

U.S. 61,76 (1955); Moragne v. States Ma-

rine Lines, Inc., 398 U.S. 375 (1970);

Sea-Land Services v. Gaudet, 414 U.S. 573

(1974); Mobile Oil Co. v. Higgenbotham, 436

U.S. 618 (1978). These departures concern

such important questions of federal mari-

time law that the issues need to be re-

solved by this Court within che context now

presented.

Additionally, certiorari should be

granted because the Fourth Circuit's deci-

sion is at odds with the Supreme Court's

holding in Parden v. Terminal Railway, 377

U.S. 184 (1964) as it has been tempered,

and with its progeny of cases finding a

waiver of Eleventh Amendment immunity in

certain instances where the State's

activities are intimately intertwined

within exclusive Federal spheres such as

Admiralty or Commerce. Left confused and

unsettled by the Circuit Courts are crucial

questions of Federal Admiralty law, i.e.

whether the Employees' doctrine and its

progeny applies in Admiralty and whether

this Court may judicially declare a waiver

just as clearly as Congress in the

Admiralty field. See, Moragne.

Admiralty jurisprudence, and its

uniquely judge-made law, has always been

inspirited with a "...special solicitude

for the welfare of those men who undertake

to venture upon hazardous and unpredictable

sea voyages... ." Moragne v. States Marine

Lines, supra, at 387; American Export

Lines, Inc. v. Alvez 46 U.S. 274, 100 S.Ct.

1673, 1679-1680, 64 L.Ed.2d 284 (1980). It

is a settled canon of maritime jurispru-

dence that "...it better becomes the humane -

and liberal character of procedings in ad-

miralty to give rather than to withhold the

remedy when not required to withhold it by

established and inflexible rules... ." Ame-

rican Export Lines, Inc. v. Alvez, supra,

at 1677 citing Moragne, supra, at 387,

quoting with approval, The Seagull, 21

F.Cas. 909, 910 (No. 12,578) (C.C. Md.

1865); accord, Sea-Land Services v. Gau-

det, supra, at 583. ° Accordingly, con-

sistent with the extension of this special

solicitude and benevolence to the depend-

ants of [seafarers], this Court should ap-

proach the resolution of the issues now be-

fore it, especially since the Supreme

Court, and not Congress has the primary re-

sponsibility for "...formulating flexible

and fair remedies in the maritime law... ."

See U.S. v. Reliable Transfer Co., Inc.,

421 U.S. 397, 409 (1975). Because Congress .

has largely left to the Federal Judiciary

- 30 -

the responsibility for developing the

controlling rules of Admiralty Law, and

because "no area of federal law is judge

made at its source to such an extent as the

law of Admiralty"3, the Fourth Circuit

should not have ignored the numerous

judicial comments and case law which have

developed around the landmark case of

Moragne.

If the law is in fact as the Fourth

Circuit has said it to be, then the Coast

Guard, Corps of Engineers and State Highway

Department may flout danger, act with im-

punity, and totally avoid all consequences

of their irresponsible conduct. In light

of the within facts, these defendants

should not be allowed to escape the conse-

quences of their unconscionable conduct and

cavalier attitude towards this deadly haz-

ard merely because of the inherently pro-

3 (Frankfurter, J.) Mitotell v. Trawler

Racer, Inc., 362 U.S. 5 1960

wo SS

tective shield sometimes afforded to

governmental conduct inasmuch as private

parties would have clearly been liable for

this negligence. Their callous disregard

for human life, in light of their knowledge

and understanding of the extreme hazard

involved, should not have been tolerated.

Moreover, this Court's resolution of these

issues should be made in conformity with

the emerging trend of admiralty law as

espoused by this Court. In view of the

actions of the Court of Appeals in setting

aside the petitioners' award for damages

and holding the respondents not liable, the

issues raised by this petition call for

this Court's exercise of its supervisory

powers.

THE UNITED STATES COAST GUARD AND

CORPS OF ENGINEERS OWED PETITIONERS A

DUTY IN ADMIRALTY AND THEY BECAME LI-

ABLE FOR THEIR FAILURE TO RESPONSIBLY .

MARK, SIGN, OR IN THE ALTERNATIVE RE-

MOVE THE KNOWN HAZARD TO NAVIGATION

WHICH THEY HAD ACTIVELY UNDERTAKEN TO

REGULATE AND CONTROL.

A. The SIAA and The Nonapplicabil-

ity of the Discretionary Function

Exemption

In reversing and setting aside the pe-

titioners' judgment against the United

States, the Court of Appeals held as a

matter of law that the United States owed

no statutory duty to the petitioners. The

majority reasoned that the Corps had an

unreviewable discretion either to issue a

permit or not to revoke its permit and that

the Coast Guard had wide discretion whether

or not to mark a "permitted structure".

Faust was properly brought against the

United States under the Suits in Admiralty

Act, (SIAA), 46 U.S.C.A. §74l1 et. seq.,

for a maritime tort caused by the govern-

ment's negligence inasmuch as the SIAA con-

templates that suit may be brought against

the United States in every instance where

if a private party were involved, an °

admiralty proceeding could be maintained.

Lane v. United States, supra, The Snug |

Harbor, 40 F.2d 27 (4th Cir. 1930);

DeBardeleben Marine Corp. v. U.S., supra,;

Gaspar v. United States, 460 F.Supp. 656

(D.C.Mass. 1978); Offshore Transp. Co. v.

U.S., 465 F.Supp. 976 (D.C.La. 1979);

Doyle v. United States, supra. While

there is a conflict of authority in some

circuits, the Fourth and Fifth Circuits

have expressly found that no "discretionary

function exemption" exists in the SIAA

whereas the First Circuit has taken the

opposite view. Compare Lane, supra,;

DeBardeleben, supra, and Gercey v. United

States 540 F.2d 536 (lst Cir. 1976). The

Supreme Court has never spoken specifically

to this very important question of Federal

law on which various Courts of Appeal have

reached different conclusions. °

Unlike in the SIAA, this discretionary

function exemption, is generally regarded

mas 34 - | ie: oS MR Be oy

(PTCA), 28 U.S.C.A $2674, et. seq. Thus,

there can be no parity of reasoning between

SIAA cases and FTCA cases. Nevertheless,

the Fourth Circuit placed unjustified reli-

ance in Faust on FICA cases, which could

not help but yield the wrong results and a

conflict between the circuits. Appendix B

p-p. B-16 to B-19 citing Zabala Clemente v.

United States, 567 F.2d 1140 (lst Cir.

1977) (decision that FAA employee's failure

to warn passengers that the aircraft they

were about to embark on was overweight and

lacked proper flight crew did not give rise

to a cause of action under FTCA; Boston

Edison Company v. Great Lake Dredge and

Dock Company, 423 F.2d 891 (lst Cir. 1970)

(decision by Corps of Engineers to dredge

river is discretionary, and so is not ac-

tionable under PICA; Lynch v. United States

Depart. of Army Corps of Engineers, 474

without opinion 601 F.2d 581 (4th Cir.

1979) tort of negligence or negligent mis-

representation is barred by discretionary

function exemption of PTCA). Thus, by re-

fusing to find either the Coast Guard or

the Corps liable once having exercised

their discretion to act or not to act on

the ferry hazard, the Fourth Circuit

created further conflict amongst the cir-

cuits and even with itself by finding the

FTCA discretionary function exemption ap-

plicable in SIAA cases as well. See Lane,

supra, which requires that discretionary

acts of the Coast Guard and Corps be exer-

cised responsibly. According to the Court

of Appeals, however, the government's dis-

cretion to mark, or its discretion to regu-

late, raised no duty and was no basis for

holding the United States liable. Here,

the United States was faced with a known

hazard which it had condemned regardless of

its being "permitted" or "unpermittec". In

extending immunity to the government, the

Court of Appeals ignored its own teaching

that "...duty is born of a danger to others

=. 3§-< | "*

as ‘ b ta

ay »! ., | "a z = 22.

reasonably perceived by the person charged

with guarding against the hazard." See

Dalldorf v. Higgerson-Buchanan, Inc., 42

F.2d 419, 427, (4th Cir. 1968).

B. The Indian Towing Argument

Further conflict in authority was cre-

ated by the Fourth Circuit's failure to ap-

ply the "Good Samaritan" precepts of Indian

Towing upon which much admiralty jurispru-

dence is based.4 See, Indian Towing |

Co. v. United States, supra; Lane v. United

States, supra, Tringali Brothers,’ supra.

In failing to apply Indian Towing the court

severely departed from a weil accepted

theory of liability in maritime matters and

thereby requires this Court's exercise of

its supervisory powers. Furthermore,

S~ These “good samaritan” precepts of

Indian Towing provide that once the Coast Guard or

Corps of Engineers exercises its discretion and

voluntarily undertakes to remedy a known hazard,

(regardless of the existence or non-existence of a

prior duty and regardless of ownership of the

instrumentality involved), they must act in a

reasonable and prudent manner and may become liable

for their negligence.

- 37 -

conflict was created by the Fourth

Circuit's blanket finding that Indian

Towing was inapplicable since the

Federal Government did not "own" the ferry,

but the issue of ownership is wholly irre-

levant to the question of liability under

Indian Towing. Id. at 53. These princi-

ples of law are well accepted and are reit-

erated by the Restatement of Torts 2d §323

entitled, Negligent Performance of Under-

taking to Provide Services, and §324 A, en-

titled Liability to Third Persons for Neg-

ligent Performance of Undertaking.

It is important to remember that the

Fourth Circuit did not disturb any of the

District Court's findings of facts, one of

which found that the government-ordered

"safety" devices and procedures as in-

stalled and implemented at the ferry "actu-

ally increased the risk caused by the cable

ferry." 527 F.Supp. at 1044, Thus, Faust

is actionable under Indian Towing since the

government's remedial measures misled the

boaters and were a proximate cause of the

accident. The Fourth Circuit previously

acknowledged such a cause of action could

exist in Magno v. Corros, 630 F.2d 1224

(4th Cir. 1980) but it misapplied and

misanalogized Magno to Faust and the Indian

Towing principles contained therein.>

5 The United States has argued in Faust

that Magno exculpates the conduct of the Coast Guard

and the Corps; this however, is not a correct

reading of that case in light of the facts in Faust.

In Magno, the United States was absolved of

negligence in its decision to mark in a certain way

a certain aid to navigation which was an obstruction

to navigability. Magno determined the dike in

question to be an aid to navigation. Id. 227. There

has never been any contention by the parties that

the ferry and ferry cable in Faust were aids to

navigation - only that the “advance warning signs”

were such aids.

Secondly, Magno is inapposite to Faust in that

there, the Coast Guard "...undertook only to light

the channel end of the dike with a light, and at no

time did it fail to perform that undertaking...”

Id. at 228. However, in Faust, the Coast Guard and

Corps undertook to devise and implement an entire

warning system so as to properly and effectively

mark the overall ferry operation and apprise

approaching boaters of the navigational hazards

ahead.

Thirdly, the Court in Magno found the record

".eeentirely void of any evidence showing that the

light would somehow induce a boater to believe that

there was nothing between [the dike] and land...”

Id. at 228. However, in Faust, there was substan-

Because, Faust is not a Magno type case, but

rather a Lane case, the United States can

be held liable for its failure to responsi-

bly exercise its discretion to effectively

mark and/or remove the known hazard to

navigation once it undertook to regulate,

control and remedy the dangerous ferry

situation. A substantial body of law

supports application of Indian Towing

principles but the Fourth Circuit

2 tial testimony and evidence from

several sources which indicated how the signs,

markings and warning system could easily misiead a

boater about the true nature of the peril with which

he was confronted, thereby inducing him to believe

that it would be safe to proceed when the ferry was

docked against the mainland bank. Moreover, in

Magno the Court found the Coast Guard never

undertook to provide additional lights or markings

on the dike; this, however, was clearly not the case

in Faust inasmuch as the additional signs, markings,

lights and warning devices installed were a direct

result of the interaction and direction between the

Coast Guard, Corps, and Highway Department. Thus,

while the activities in Magno might not have been

found to have engendered reliance on the additional

markings, there was ample support in Faust that the

additional markings there engendered the detrimental

interpretation of the danger at hand. While in

Magno there was nothing to indicate that the single

light at the end of the dike was a trap for the

unwary, the record in Faust is replete with

testimony supporting the conclusion that the ferry

warning system was a trap for the unwary.

departed from the accepted view and created

conflict among the circuits and within it-

self. See, Lane, supra, Greer v. U.S.,

505 F.2d 90, 92, (5th Cir. 1974); Tringali

Brothers v. U.S., supra.

C. Statutory Liability

As stated in Offshore Transp. Company _

v. U.S., supra, at 980, it is the need of

maritime navigation that is the touchstone

for determining whether the Coast Guard and

Corps have acted responsibly in the exer-

cise of their discretionary authority to

protect vessels from obstructions or haz-

ards. Read together, there can be no doubt

but that 14 U.S.C.A. §§81, 86 and 33

U.S.C.A. 401 et. seg. are intended to pro-

tect maritime traffic from the danger posed

by obstructions to navigation.

33 U.S.C. §§402, 403, forbid certain

structures in navigable waters without per-

mission. 33 U.S.C. §406 provides authori-

ty, couched in discretionary terms, to en-

force both 33 U.S.C.A. §§401, 403 although

it is well accepted that such statutory au-

thority is not needed. See U.S. v. Perma

Paving Co. 332 F.2d 754, 758 (2nd Cir.

1964). Nevertheless, the Corps and Coast

Guard procrastinated and never brought

forth the full force of their authority to

resolve the known dangers and hazards to

navigation until it was much too late.

As a matter of practice, the Corps did

not adequately supervise the navigation in

the canal and it must be liable for the re-

sulting damages. See Hogge v. S.S. _ York-

mar, 434 F.Supp. 715 (D.C.Md. 1977). In

addition to the above statutes, the Corps’

duty stems further from 33 U.S.C. §1 and

its own regulations promulgated pursuant to

that statute at 33 C.F.R. 209, et. seq.

The statutes and regulations give the

Corps plenary power and responsibility for

the supervision of the waterway. Por in-

stance, the regulations define an aid to

navigation as "any device external to a

vessel intended to assist a navigator to

determine his position or safe course or

warn him of dangers or obstructions to nav-

igation". 33 C.F.R. 66.01-5 (a). Under

66.05-40, the Corps also has control over

state aids to navigation. Having such po-

wer and duty it is therefore charged with

issuing safe procedures governing the pass-

age of vessels through the canal. In the

face of this heavy responsibility, the

Corps' efforts were plainly inadequate.

The Fourth Circuit's limited view of the

Corps' responsibility [by comparison to

FTCA cases] does not adequately account for

the Corps' plenary power as the overall su-

pervisory agency in charge of the canal.

The Corps simply cannot delegate away these

responsibilities.

The District Court record clearly

shows that the Corps and the Coast Guard

failed to adequately supervise and enforce

safe operating procedures. As previously

stated, if the government undertakes to

perform a certain function (whether or not

it had an original duty to perform that

function) it must perform it with due care.

Indian Towing, supra. Numerous other cases

have held the government (usually the Coast

Guard) liable for its negligent performance

of a gratuitous undertaking (often for

failure to place or maintain an aid to nav-

igation in accordance with 14 U.S.C. §§81,

86). See, e.g., Greer v. U.S., supra,

(failure to return to its proper place a

buoy which had drifted from its chartered

position); DeBardeleben Marine Corps v.

U.S., supra, (dissemination of an inaccu-

rate chart); Reliable Transp. Co. v. U.S.,

497 F.2d 1036 (2nd Cir. 1974) aff'd, 421

U.S. 397 (1975) (failure to maintain a

light); Afran Transp. Co. v. U.S., 435 F.2d

213 (2nd Cir. 1970) (failure to replace a

wandering buoy); Lane v. U.S., supra,

(failure to responsibly mark a known hazard

to navigation); 19 A.L.R. Fed. 282. Al-

though these cases refer to a particular

negligent act or omission regarding a sing-

le aid to navigation, they are equally per-

Suasive where, as here, the entire adminis-

tration of the Canal lacked the careful

planning and supervision required for such

an undertaking. The Coast Guard and Corps

undertook the responsibility of supervising

navigation of the canal; indeed they were

required to by their statutes and regula-

tions. Their slipshod performance of these

duties of supervision forces the conclusion

that their entire operation of the Canal

lacked due care. While such conclusion is

warranted by examination of other Circuit's

cases, as well as some Fourth Circuit ca-

ses, the Court of Appeals chose to depart

from those well-accepted theories of lia-

bility despite ample law that the United

States may be liable for its failure to

follow its own navigational laws. Eastern

Transp. Co. v. United States, 272 U.S. 675

(1927); The Snug Harbor, supra.

D. General Tort Liability

The general tort rule as to whether

one owes a duty to anticipate the negli-

gence of others is well stated by Prosser,

The Law of Torts, p. 172 (4th Ed. 1971).

Basically, such duty exists when the proba-

bility of negligence is relatively high,

the magnitude of harm which will result re-

latively great, the burden of exercising

due care relatively slight. Id. This is

precisely the situation with which the

Corps, Coast Guard and Highway Department

were faced. Further principles upon which

liability may be founded against the United

States are set forth in The Restatement of

Torts 2(nd) §343 entitled "Dangerous Condi-

tions Known To or Discoverable by Possess-

or", $343 (a), entitled "Known or Obvious

Dangers", and §364, entitled "Creation or :

Maintenance of Dangerous Artificial Condi-

tion". Therein, the law establishes the

incumbent duties and liabilities of a party

in the position which the United States

finds itself in the instant case. These

principles are equally appiicable in Admir-

alty and in fact are often applied, yet

were ignored by the Court of Appeals. Such

nonstatutory principles of Admiralty Law,

akin to principles of tort, make the United

States liable. For example, where the Uni-

ted States, as the government which owns,

controls, and exercises paramount power

with respect to marine highways on navi-

gable waters expressly or impliedly licen-

oes another to create and maintain in such

waters a dangerous structure, and the Uni-

ted States knows of that danger and does

less than a reasonable prudent person would

do to remove or alter or prohibit the

structure, and such failure causes injury

to a third person, then the United States

is liable for such injury.6

Thus, when the United States knows of ,

a hidden danger and undertakes to mark it,

it is subject to liability if the marking

constitutes "a trap for the ignorant or un-

wary, rather than a warning of danger".

See Somerset Seafood Co. v. U.S., 193

F.2d 631, 635 (4th Cir. 1951). The duty to

warn arises from knowledge by the United

States of the hidden danger and its satu-

tory authority to implement corrective mea-

sures independently of the ownership, con-

struction, maintenance or operation of the

dangerous obstruction. Doyle v. U.S., sup-

ra. Accordingly, whether the United States'

negligence arises from a uniquely govern-

mental activity such as marking obstruc-

tions and operating lighthouses, or from

proprietary activities similar to those un-

6 See dissenting opinion, Faust, Ap. B,

p-p- B-77 to B-79.

sth * 48 eo”

dertaken by private persons, such as oper-

ating motor vehicles on a public highway,

is of no consequence for the United States'

liability does not depend on the presence

or absence of identical private activity.

See Doyle, supra, at 709 citing Indian

Towing, supra.

THE STATE OF SOUTH CAROLINA WAIVED ITS

ELEVENTH AMENDMENT IMMUNITY AND IS LI-

ABLE IN ADMIRALTY FOR THE DAMAGES AND

INJURIES SUFFERED BY FAUST, BENNETT

AND MULDROW.

A. Introduction

Although the majority panel held the

Eleventh Amendment barred the District

Court judgment, the Court of Appeals stated

that if the State were amenable to suit, it

should be held liable for its negligence.

(Ap. B, p. B-24.) In holding that South

Carolina was insulated from liability, the

majority found that the Fourth Circuit de-

cision in Chesapeake Bay Bridge and Tunnel

Districts v. Lauritzen, 404 F.2d 1001 (4th

Cir. 1968), and this Court's decision in

Parden had been sharpiy curtailed by the

decisions in Edelman and Employees.

The Eleventh Amendment does not liter-

ally apply to admiralty actions although

this Court has found it to govern certain

admiralty proceedings. See, Florida De-

partment of State v. Treasure Salvors, 102

S.Ct. 3304, 3314, n.17 (1980); In re New

York 256 U.S. 490, 500 (1921) (both cases

were in rem admiralty proceedings to re-

cover property allegedly owned by the

State). However, even if the Eleventh

Amendment were to apply in Faust the State

should be found to have waived its immunity

under its unique facts either under Parden

or under the general maritime law estab-

lished in Moragne.

B. Waiver Pursuant to Parden

Waiver of Eleventh Amendment Immunity

has been found in two general situations;

first, when there has been a "clear state-

ment" by Congress that a state's waiver of

immunity is intended, and, secondly, when

the State engages in activity in an area in

which they have empowered the federal gov-

ernment to act. Compare, Employees v.

Missouri Public Health Department, 411

U.S.279 (1973); Edelman v. Jordan 415 U.S.

651 (1974); Parden v. Terminal Railway 377

U.S. 184 (1964). In Faust, the State's

ownership and operation of the ferry within

the (A.I.W.) created an intimate nexus with

the exclusive federal powers over commerce

and admiralty and subjected it to Federal

control. This is to be distinguished from

Edelman and Employees where the Court re-

fused to find a waiver where the States’

only activity was as a mere participant in

a Federal program. It is significant to

realize that Faust is not a "mere entry"

case as the Fourth Circuit categorizes Lau-

ritzen. Accordingly, the unique and inter-

woven relationship between the State's and

government's activities and controls over

the ferry operation in Faust allows it to

withstand an overturning of Lauritzen and

further allows for a finding of waiver un-

der Parden.

The State was intimately involved

within the federal spheres of Admiralty and

Commerce. For example, it assumed owner-

ship and operation of the ferry pursuant to

direct legislative enactment. Act No. 29

of the Acts of 1947, 45 8S. at L. 44;

§57-15-140 of the South Carolina Code of

Laws 1976 as amended. (Appendix E at p.p.

E-2 to E-5.) The State undertook its opera-

tion voluntarily and with knowledge of its

encroachmment into the federal sphere.

Moreover, the legislature specifically

chose not to include a clause excluding the

Highway Department from liability for neg-

ligence, personal injury, death or property

damage, as it had done in another existing

ferry statute, thereby giving rise to the

inference that the Highway Department could

be sued for its negligence in operating the

South Island Ferry. Compare, Act. No. 896

of the Acts of 1934, 38 S. at L. 1539,

which specifically provided that the High-

way Department would not be liable for its

negligence, etc. (Appendix E, p.p. E-6 to

E-8.) Furthermore, the State's operation

of the ferry was completely subordinate to

the authority of the Coast Guard and Corps

from which it constantly took directions

and with which it actively worked in an ef-

fort to comply with the standards of care

imposed by general maritime law and the ap-

plicable regulatory statutes.

It is well settled that the federal

government, when acting within a delegated

power, [such as admiralty or commerce] may

override countervailing state interests

whether those interests be described as

governmental or proprietary. See Sanitary

District of Chicago v. United States 266

U.S.405 (1925); Maryland v. Wirtz, 392 U.S.

183, 195-196 (1968) reversed on other

grounds, Somerset Seafood Co. v. United

States, supra. For example, the Federal

Government is charged with insuring that

navigable waterways, like any other routes

of commerce over which it has assumed con-

trol, remain safe and free from obstruc-

tion. See, Sanitary District, supra, and

Wyandotte Trans. Co. v. United States, 389

U.S. 191 (1967). Recalling Justice

Holmes' language in Sanitary District, sup-

ra, the federal power over commerce is

",..superior to that of the states to pro-

vide for the welfare or necessities of

their inhabitants..." Sanitary District,

supra, at 426. Thus, liability may be im-

posed upon the State, and its waiver of

Eleventh Amendment immunity may be predica-

ted upon its intimate activities within the

: - 54 - iy 4 ey bas Viy “ys

‘ee. iS ee wr ee MEAT ey gee ee Ae at aa os, :

exclusive federal spheres of commerce and

admiralty in conjunction with its activi-

ties under the supervision of the Corps and

the Coast Guard. Parden, supra.

The vitality of the Parden exception

was continued by U.S. Transp. Union v. Long

Island Rail Road Co., 455 U.S. 678, 684-687

(1982). There, in a case closely analo-

gous to Faust, this Court found that the

Tenth Amendment did not prohibit applica-

tion of the Railway Labor Act for a state-

owned railroad engaged in interstate com-

merce since its operation was not an inte-

gral part of traditional State activities

generally immune from Federal regulation.

Id. at 685. Federal regulation of a state-

owned railroad [or a state-owned ferry]

does not impair a State's ability to |

function as a state. Id. In view of the

fact that the commerce clause grants

Congress the plenary authority to regulate

labor relations in the railroad industry

{and that the exclusive grant of judicial

power in Admiralty in Article III coupled of

with the Necessary and Proper Clause has

long been considered by this Court to be a

grant of exclusive power in that area to

Congress]? an application of federal au-

thority to a state-owned railroad [or fer-

ry] does not impair the rights of a state

so as to come into conflict with the Tenth ,

or Eleventh Amendment, especially since the

states, merely by acquiring functions pre-

viously performed by the private sector may

not erode federal authority in areas tradi-

tionally subject to federal or statutory

regulation. Id. Nevertheless, the Fourth

Circuit failed to follow the teachings of

Parden and Long Island Railroad.

C. Waiver under Moragne

Additionally, waiver of the state's

7 Knickerbocker Ice Co. v. Stewart, 353

U.S. 149 (1920)

Eleventh Amendment immunity can be implied

under the general admiralty and maritime

law established by Moragne which created a

federal nonstatutory cause of action for

maritime wrongful death in state territori-

al waters. Moragne was intended to bridge

the gap which existed as a result of the

causes of actions allowed by the Jones Act,

46 U.S.C. §688, et. seq. and The Death on

the High Seas Act (DOHSA), 46 U.S.C. 761,

et. seg., i.e. that there was no actionable

statutory federal remedy for a nonseaman

injured within territorial limits until Mo-

Pagne.

This right of action was created by

the Supreme Court in Moregne in its capaci-

ty as the final arbiter of admiralty law

and procedure. The remedy was not created

by the Congress, but rather by the Judicia-

ry, and it was a "clear statement" no less

powerful or effective than that contempla-

ted in Edelman and Employees.

After a study of legislative history

of (DOHSA) in Moragne, the Supreme Court i

concluded that Congress expressed:

---No intention...of foreclosing

any nonstatutory federal remedies

that might be found appropriate

rel maritime law. fa. at 1767

Accordingly, a "clear statement" from Con-

gress (such as in Edelman and Employees) is

not the only means by which a waiver can be

effected since for all practical purposes,

such a "clear statement" could come equally

well from the Judiciary. And, such a j

"clear statement" has come from the Judici-

ary in Moragne. As recognized by the 5th

Circuit Court of Appeals:

---No longer does one need...

»»eDOHSA as a remedy. There is a fed-

eral maritime cause of action for

death on navigable waters - navi-

gable waters - and it can be enforced

in any court. Law v. Sea Drilli

ork 523 F.2d 793 (5th 798 Cis,

Thus, because this new judicially created

general maritime private cause of action is

intended to supplement Jones Act and

(DOHSA) causes of actions - both of which

will permit suit to be brought against the

State - this suit against the Highway De-

partment for the wrongful death of Faust is

also allowable under Moragne. See also In

Re: Holoholo, 512 F.Supp. 899, 902-907

(D.Ha. 1981). But, the Pourth Circuit

departed from the law as set forth in

Moragne and as established in the cases

construing Moragne. In doing so, the

Fourth Circuit has decided a crucial issue

of Federal Admiralty Law yet to be settled

by this Court, and seemingly in conflict

with the spirit of Moragne.

The remedies provided by (DOHSA) the

Jones Act, and general maritime law would

be rendered meaningless with respect to the

states if the Eleventh Amendment were to

serve as a complete shield behind which the

State could hide so as to avoid liability

for its own negligence and misdeeds. In

that regard, had the Faust collision oc-

curred while the ferry was in the water-

way, and the operator had been killed he

could have sued the State under the Jones

Act. Or, had the collision occured outside

the territorial limits, (DOHSA) would have

provided the mechanism for judicial recove-

ry. In such a situation, it would be wholly

contradictory to the well accepted judge-

made principles of maritime law to deny

Paust a remedy while granting the ferry op-

erator a cause of action as a result of the

same injuries sustained from the same acci-

dent merely because of geographic coinci-

dence.

D. Applicability of The Rivers

aos Harbors Lt

The petitioners further contend that,

regardless of whether there is an implied

waiver under Parden or 4 waiver under Mo-

ragne, 4 private right of action for per-

sonal injuries or death caused by the

State's tortious conduct is allowable under

§10 of the Rivers and Harbors Act of 1899,

33 U.S.C.A. §403. Various District Courts

and Courts of Appeal have so held although

there is no uniformity on that question.

Compare Riggle v. State of California, sup-

ra, ; Red Star Towing and Transp. Company

v. Dept. of Transp. of New Jersey, 423 F.2d

104, 105 (3rd Cir. 1970); Chesapeake Bay |

Bridge and Tun.¢l District v. Lauritzen,

supra.

In the recent case California v. Si-

erra Club, et al, 451 U.S. 287 (1981), this

Court held that there was no private right

of action for preserving navigability under

§10 of the Rivers and Harbors Act of 1899.

This holding was misapplied by the Appeals

Court in holding that neither can there be

a right of action to remedy tortious injury

suffered at the hands of the Highway De-

partment.

As a practical matter, it is undis-

puted that the purpose of the Rivers and

Harbors Act is to maintain and promote the

safety of navigation and to prevent inju-

ries to private parties as a result of ob-

structions in navigable waters. Atlantic

Refining Company v. Moller,320 U.S. 462

(1943) (dealing specifically with §15 of

the Act). Section 10, has often been in-

terpreted as establishing a standard of

care applicable in ordinary negligence ac-

tions for damages. See Red Star Towing Co.

v. Dept. of Transp. of N.J., supra., at 106

n.4 ; Atlantic Refining Company v. Moller,

supra, at 169 n.l, citing The Williams C.

Atwater, 110 F.2d 644 (2nd Circuit 1940).

Thus, it would seem that a tort action for

damages caused by another's negligence,

where it is harmonious with Admiralty, is

certainly within the purview of the Rivers

and Harbors Act §§9, 10, and 15.

It would be a serious misapplication

of Cort v. Ash, 422 U.S. 66 (1975) to

strictly apply its "four factors test" to

. the case at bar in light of the more recent

"implied right of action" cases which limit

it and the "four factors" to the status of

guidelines in ascertaining legislative in-

tent. See, e.g., Transamerica Mortgage —

Advisors, Inc. v. Lewis, 44 U.S. 1l

(1979). This court has recognized that

that one type of private remedy may be im-

| plied under a statute while another type of

remedy may not be. Id.; University's Re-

search Association v. Coutu, 450 U.S. 754,

769 (1981).

Because the law at the time of the Ri-

vers and Harbors Act would have allowed an

action for damages by implying a remedy for

personal injuries suffered, a private right

of action against the State of South Caro-

lina should also be allowed. Thus, the

Highway Department would be accountable

under the Rivers and Harbors Act for the

* petitioners’ injuries. rg

Conclusion

As demonstrated above, the United

States, through the Coast Guard and Corps

of Engineers had a duty to responsibly

sign, mark, or in the alternative remove

the known hazard to navigation and they be-

came liable for the injuries to the Peti-

tioners when they failed to do so. Addi-

tionally, the State of South Carolina

waives its immunity and is liable for the

injuries suffered by Faust, Bennett and

Muldrow. For the reasons set forth herein,

the petitioners respectfully request that

this Court reverse the Order of the Court

of Appeals and reinstate the Order of the

District Court.

Respectfully submitted,

P.O. Box 17 0

Florence, SC 2

(803)662-6321

y ent NRG + ty fe” Se aa eee = SPUN ees

. - " Pe oe rel &

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Oo. —

Alean Hester Faust, Admintstratrix of the

Estate of Charles Lonnie Faust, deceased,

Tommy Bennett, Curtis L. Muldrow,

Appellees,

vs.

South Carolina State Highway Department,

Appellant,

and

United States of America,

Defendant.

No. 82-1209

Alean Hester Faust, Administratrix of the

Estate of Charles Lonnie Faust, deceased,

Tommy Bennett, Curtis L. Muldrow,

Appellees,

vs.

South Carolina Highway Department,

Defendant.

and

United States of America,

Appellant.

On Petition for Rehearing

Submitted: November 14, 1983

Decided: December 13, 1983

Before WINTER, Chief Judge, WIDENER, Cir-

cuit Judge, and Wyzanski,*® Senior District

Judge.

# Honorable Charles Edward Wyzanski, Jr.,

Senior United State District Judge for

the District of Massachusetts, sitting

by designation .

ORDER AND DISSENT

Upon consideration of the

appellees' petition for rehearing and

Suggestion for rehearing en banc, and no

judge having requested a poll on the

suggestion for rehearing en banc,

IT IS ADJUDGED and ORDERED that the

petition for rehearing is denied.

Entered at the direction of Judge

Winter with the concurrence of Judge

Widener. Judge Wyzanski dissents for the

reasons set forth in his supplemental

dissenting opinion.

For the Court,

s/William K. Slate

CLERK

WYZANSKI, Senior District Judge, voting

in favor of the plaintiffs-appellees'

petition for rehearing:

1. The facts in this case are

undisputed. The assuredly most

comprehensive, and it seems to me the most

accurate, version is set forth in my

dissent. From that dissent the majority

unabashedly draw such portions as seemed to

it appropriate for its majority opinion.

No part disagrees, at least in print, with

the factual summary given in the dissent I

have written.

2. So far as concerns the defendants’

negligence, thte court like the district

court has agreed that the plaintiffs have

proved their case so far as concerns The

Highway Department of South Carolina. The

only reason that the majority of this court

relieves the Department from liability is

the Eleventh Amendment.

3. With respect to the negligence of

the United States, the district court and I

have no difficulty in holding the United

States liable. Apparently both of us agree

that the non-statutory principles of

admiralty law, akin to principles of tort,

make the United States liable. It is one

of such principles that the United States,

as the government which owns, controls, and

exercises paramount power with respect to

marine highways on navigable waters, when

it expressly or impliedly licenses another

to create and maintain in such waters a

dangerous structure, and the United States

knows of that danger and does less than a

prudent, reasonable person would do to

remove or alter or prohibit the structure,

and such failure causes injury to a third

person, the United States is liable for

such injury. THE DENIAL OF THAT PRINCIPLE

BY THE MAJORITY OPINION HAS RESULTED IN A

JUDGMENT WHICH SEEMS TO ME PLAINLY AT ODDS

WITH ELEMENTARY DOCTRINE, AND IF LEFT

STANDING BOUND TO CREATE MISCHIEF. (The

statutory theories of the district court

and their discrediting by the majority of

this court, I need not consider.)

4. With respect to the issue of the

‘liability of the South Carolina's agency, I

believe that the majority has based its

judgment on a misunderstanding and

erroneous application of the Eleventh

Amendment to the United States Constitution

and of such interpreting Supreme Court

opinions as Parden v. Terminal Railway, 377

U.S. 184 (1964). As explained in my

dissent, it is my view that:

(a) the majority has misapplied a

Supreme Court governing precedent,

(bd) the majority has failed to

recognize that the facts of this case

involve a waiver (of the type recognized by

the Supreme Court) by the State of South

Carolina of any immunity otherwise

? available to it under the Eleventh

Amendment, and

recognize that when a state accepts from

the federal government a license to create

a structure upon navigable waters, the

state engages in an activity which if it

causes injury to another does not fall

within the scope of the Eleventh Amendment,

(a point expressly made again and again in

‘ decisions by the Supreme Court and inferior

federal courts, as we ourselves illustrated

in Chesapeake Bay Bridge and Tunnel

District v. Lauritzen, 404 F.2d 1001 [4

Cir. 1968] per Haynsworth, C.J., now called

by the majority "not a viable authority and

[one which] should not longer be

followed". )

APPENDIX B

APPENDIX

UNITED STATES COURT OF APPEALS

POR THE FOURTH CIRCUIT

No. 82-1288

Alean Hester FPaust, Administratrix

of the Estate of Charles Lonnie

Faust, deceased, Tommy Bennett,

Curtis L. Muldrow,

Appellees,

South Carolina State Highway

Department,

Appellant,

and

United States of America,

Defendant.

Alean Hester Paust, Administratrix

of the Estate of Charles Lonnie

Paust, deceased, Tommy Bennett,

Curtis L. Muldrow,

Appellees,

Vv.

South Carolina State Highway Department,

Defendant,

and

United States of America, |

Appellant.

Appeals from the United States District

Court for the District of South

Carolina, at Charleston. Falcon B.

Hawkins, District Judge.

78-776-1 , 78-778-1 , 78- 80-1

Argued May 9, 1983

Decided November 1, 1983

Before WINTER, Chief Judge, WIDENER,

Circuit Judge, and WYZANSKI,*® Senior

District Judge.

WINTER, Chief Judge:

The decedent of the plaintiff '

administre’ x was killed and the two

other plai”.i/fs were injured when, on

the night of December 11, 1977, the

decedent's motorboat collided with a

steel guide cable used by the South

*® Honorable Charles Edward Wyzanski,

Jr., Senior United States District

Judge for the District of '

Massachusetts, sitting by

designation.

Carolina State Highway Department

(Highway Department) in the operation of

a cable ferry across a canal in the

Atlantic Intracoastal Waterway.

Plaintiffs sued the United States and

Highway Department in admiralty alleging

that they were joint tortfeasors in the

operation and maintenance of the ferry.

The district court gave judgment to the

administratrix against both defendants

for $499,069.00 and to the other

plaintiffs for $18,000.00 and $5,000.00,

respectively, with prejudgment interest.

Both defendants appeal.

We reverse. We conclude that there

was no negligence on the part of the

United States, and it is entitled to

judgment as a matter of law. While we

conclude that there may have been

negligence on the part of the Highway :

Department, as well as contributory :

negligence on the part of the decedent

and the other plaintiffs, we think it

necessary to reexamine our decision in

Bay B e 1

District v. Lauritzen, 404 F.2d 1001 (4

Cir. 1968), on which the liability of

Highway Lepartment was predicated. We

conclude that Lauritzen has been

sufficiently undermined by subsequent

Supreme Court decisions that it should

no longer be followed. As a consequence

we conclude that under the Eleventh

Amendment Highway Department is not

amenable to suit and we reverse the

judgment against it.

In the view we take of the case, the

facts need not be elaborately stated.

On the night of the tragedy--a

Sunday, the decedent, Charles Lonnie

Paust, together with plaintiffs, Tommy

+» See

Bennett and Curtis L. Muldrow, went

fishing in Paust's eighteen-foot open

inboard/outboard motor boat in

unfamiliar waters, near Georgetown,

South Carolina. They launched the boat

from a public landing on the Sampit

River to which they had been directed

and they fished in an area to which they

were taken by a professional fisherman

who accompanied them after they

encountered him on the water in his

disabled boat. After fishing for

several hours and collecting shellfish,

they returned to their guide's disabled

boat where he left them. He gave them t

directions how to return whence they had

come, but because they erroneously

identified their point of origin, he

directed them to a landing in close

proximity to one of the landings of the

South Island Ferry. In addition to no

familiarity with the waters of the area,

they neither had, nor had they

consulted, any maps or charts.

The South Island Ferry is a cable

operated ferry, operating across a canal

of the Intracoastal Waterway. Since

1940, it has employed a separate 5/8

inch steel guide cable. When not in

operation, the ferry is moored on the

east or island side of the canal and the

guide cable is slack and rests on the

bottom. When the ferry is in operation

the guide cable is raised to four feet

above the water's surface.

Prior to December 11, 1977, there

had been a number of collisions between

boats and the ferry cable. There was

an elaborate system of warnings about

the hazard of the ferry and the cable.

When the ferry is in operation various

warning lights and sirens are activated.

Two signs, having flashing red lights

and flood lights, were posted on either

side 500 feet northeast of the crossing,

the direction from which Paust

approached, as well as south of the

crossing. The crossing is approximately

300 feet wide. The signs variously

advise that there is a cable ferry 500

feet ahead, that the cable is above

water when the ferry is in operation and

that mariners should stop on red. The

sides of the ferry, painted with

I. One such collision was litigated in

Doyle v. United States, 441 F. Supp. 701

(D. 5.0. 1977). There recovery was

sought from both the United States and

South Carolina. South Carolina settled

the suit, and the district court held

the United States liable under 14 U.S.C.

Section 86 for failure to mark the cable

adequately. Subsequent to that case,

some additional warnings were

established.

luminous paint in a black and orange

striped pattern, also bear signs reading

"Cable Ferry - Stop on Red." Some of

these warning devices were installed

after the litigation in Doyle, see supra

note 1, when a district judge voiced

sharp criticism of the hazard. Other

warning devices recommended by the Corps

of Engineers had not yet been

established. On December 11, 1977 the

United States Corps of Engineers was

also pressing for replacement of the

ferry and South Carolina was in the

process of procuring a self-propelled

ferry. After the guide was returned to

his disabled boat, Faust entered the

Intracoastal Waterway and proceeded down

the middle of the channel at a planing

speed of 15-25 m.p.h. It was dark; the

weather was good; and the tide, against

which Faust was proceeding, was rising.

The ferry was in operation, but the

Paust boat passed the warning signs

without decrease in speed and struck the

cable. Faust was killed end his

passengers injured. Apparently the

speed of the boat drowned out the sirens

which were sounding.

II.

Liablility of the United States

The district court found liability

on the part of the United States. Since

it was an uncontested fact that the

cable ferry operated in navigable waters

of the United States, the district court

reasoned that the United States was

"charged by law with various

resporsibilities and duties concerning

the cable ferry" which the United States

failed to carry out. Specifically the

district court held that the Coast Guard

failed to carry out its duty under 14

U.S.C. Section 81 to mark properly an

obstruction in navigable waterways. The

district court also held that the Coast

Guard breached its duty, imposed by case

law, to warn mariners of hidden dangers

to navigation. The Corps of Engineers,

so the district court ruled, had a duty

under 33 U.S.C. Section 401, et seqg., to

remove obstructions to navigation in the

navigable waters which it failed to

perform when it took no steps to ensure

that Highway Department had supplemented

its warning system or removed the cable.

Finally, the district court appeared to

conclude that the Corps of Engineers had

breached its common law duty to remove

obstructions or to require that they be

properly marked.

We do not doubt that if the United

States, through the Coast Guard or the

Corps of Engineers, breached some duty

imposed by statute or the common law by

failing to mark the cable adequately or

to require its removal, plaintiffs would

have a meritorious cause of action

against it under the Suits in Admiralty

Act (SIAA). See 46 U.S.C. Section 742;°

Lane v. United States, 529 F.2d 175 (4

Cir. 1975) (Coast Guard's failure

adequately to mark wreck is actionable

under SIAA). The question however, is

to determine if the Coast Guard and Army

Corps of Engineers' actions or inaction

violated some statutory or common law

duty. As a source of such a duty,

plaintiffs and the district court cite

two statutes--14 U.S.C. Section 81 and

2. The SIAA permits suits in admiraity

against the United States "In cases

where . . . if a private person or

property were involved, a proceeding in

admiralty could be maintained..."

That is, it renders the United States

liable to suit to the same extent that a

private person would be liable. Lane,

529 F.2d at 179.

86,2 which empower the Coast Guard to

establish aids to navigation and mark

obstructions, and 33 U.S.C. Section 403,

which requires Army authorization of

structures placed in navigable waters--

and the common law duty, recognized in

Indian Towing Co. v. United States, 350

U.S. 61 (1955), of one who undertakes to

warn the public of a danger to do so in

a careful manner. We consider these

sources seriatim.

A. 14 U.S.C. Section 81, 86

Section 81 states, in pertinent

part, that "[iJn order to aid navigation

and to prevent disasters, collisions and

wrecks of vessels .. . the Coast Guard

may establish, maintain, and operate:

(1) aids to maritime navigation

3. In Doyle v. United States, supra

note l, Ttabiiity of the United States

in a similar accident was predicated

upon this provision.

required to serve the needs of ... the

commerce of the United States ...,"

while Section 86 states, insofar as

pertinent, that "the Secretary may mark

for the protection of navigation any

sunken vessel or other obstruction

existing on the navigable waters...

in such manner and for so long as, in

his judgment, the needs of maritime

navigation require." It further

provides that the Secretary may charge

the owner of the obstruction for costs

incurred in marking it. Prior to 1965

Section 86 was phrased in mandatory

terms, and the Army was charged with

marking abandoned wrecks.

We have twice had occasion to rule

on the duty imposed on the Coast Guard

by these two sections. In Lane v.

United States, 529 F.24 175 (4 Cir.

1975), we held that the United States

could be held liable for damage caused

to a pleasure boat by a collision with a

poorly marked sunken barge. We

concluded that while, after the 1965

amendments, the duty to mark was not

mandatory, the section "at least,

requires care and prudence to mark

submerged wrecks which constitute

substantial hazards to navigation." Id.

at 179. In Magno v. Corros, 630 F.2d

224 (4 Cir. 1980), on the other hand, we

ruled the United States could not be

held liable for the Coast Guard's

alleged failure adequately to mark a

dike. We reasoned there that the duty

to mark imposed by that section did not

encompass things, such as the dike,

which were placed as an aid to

navigation and which were authorized by

Congress. We concluded that "Section 86

is inapplicable to a structure...

which was constructed for a proper

governmental purpose." Id. at 228. The

cable, of course, is a purposefully

constructed and not an accidental

obstruction, and thus under our

reasoning in Magno the Coast Guard was

under no duty to mark it under Section

86. There could therefore be no breach

of a duty to mark on the part of the

United States.

B. 33 U.S.C. Section 403.

This statute prohibits the

construction of any structure ina

navigable river “except on plans

recommended by the Chief of Engineers

and authorized by the Secretary of the

Army." In fact a permit for operation

of the ferry had been issued on

condition that there be certain

markings.

We do not think that the United 4

States may be held liable for permitting

an obstruction under Section 403. We

know of no dvetiiad holding the United

States liable in tort on the basis of an

alleged failure by the Corp of Engineers

to fulfill its statutory mandate to

regulate obstructions placed in the

4 The assumption

navigable waterways.

by the government of authority to

regulate a particular activity should

not render it liable in tort when it :

fails to exercise that authority to

protect an individual from injury.

Zabala Clemente v. United States, 567

F.2d 1140 (1 Cir. 1977), cert. denied,

q, The United States may be held liable

under the Rivers and Harbors Act if it

places an obstruction in navigable

waterways in violation of its

provisions. See, e.g., Norfolk & F:

Western Co. v. Uni States, 041 F.2d ve

Harbor, 40 A

F.2d 27 (4 Cir. 1930} i

435 U.S. 1006 (1978). At common law an

undertaking to protect a person from

harm does not give rise to a duty

enforceable in tort unless the

undertaking is in satisfaction of an

antecedent legal duty, or increases the

risk of harm, or the person relies to

his detriment upon the undertaking.

Restatement of Torts 2d Section 323.

Thus, at common law the undertaking by

the United States to regulate

obstructions in navigable waters does

not, standing alone, give rise to a duty

to do so enforceable in tort. Moreover,

particularly strong reasons exist for

not imposing such a duty upon the

government, for that would deny to it

the power to determine how best to

allocate scarce resources to satisfy the :

; wide range of ambitious regulatory

programs which the government has

undertaken. Gercey v. United States,

540 F.2d 536, 538-39 (1 Cir. 1976).

It has authoritatively been held

that the exercise of the function to

issue permits is an unreviewable

discretionary function. In California

v. Sierra Club, 451 U.S. 287 (1981), the

Supreme Court held that the provisions

of the Rivers and Harbors Act, Section

401 et seg., did not provide a private

cause of action to challenge the

construction of an unpermitted structure

in navigable waters. Similarly, several

courts have held the grant of a permit

thereunder to be an unreviewable

discretionary function. See Gemp v.

United States, 684 F.2d 404, 408 (6 Cir.

1982) (decision by Corps to post

warnings at dam is discretionary);

Boston Edison Co. v. Great Lake Dredge &

Dock Co., 423 F.2d 891 (1 Cir. 1970)

(decision by Corps to dredge river is

discretionary, and so is not actionable

under the Tort Claims Act); Lynch v.

U.S. Dep't of Army Corps of Engineers,

474 FP, Supp. 545, 550, 552 (D. Md.

1978), aff'd without opinion, 601 F.2d

581 (4 Cir. 1979). If the issuance of

the permit is unreviewable, we cannot

see how the United States can be held

liable for having issued a permit to

allow a hazardous obstruction to exist,

because of necessity such liability

would involve a determination either

that the permit should not have been

issued or, once issued, that it should

have been revoked.

We thus conclude that the United

States could not be liable in this case

under 33 U.S.C. Section 403.

Cc. Common Law

We are aware of no authority and

a “ys 4 we Oh

2. ai f : ee ‘ a! - B-19_ A one we Vin Galt be od § ie“, leeks

AT Lae ee ONT a Eel ORES ie ae Loree ‘Bie PRR he ty

counsel has cited none which holds that

the United States may be held liable on °

a@ common law tort theory of failure to

maintain safe conditions on navigable

waters which it "owns." Of course, in

Indian Towing Co. v. United States,

350 U.S. 61 (1955), the United States

was held liable for damage sustained by

a@ vessel which ran aground after a

lighthouse light operated by the Coast

Guard was negligently allowed to go out.

The Supreme Court stated that once the a

Coast Guard chose to operate the light

and engendered reliance on the guidance

afforded by it, it was obligated to use

due care to ensure the light was kept in

operation. Id. at 69. The principle

laid down in Indian Towing requires no

more than that the government not injure

sailors or boaters by inducing reliance ‘

on misleading navigational aids. It

imposes no general duty upon the

government to ensure navigable waters

are safe or to provide warning devices.

In Magno v. Carros, 630 F.2d 224, 228 (4

Cir. 1980), for example, we held that

the Coast Guard could not be held liable

under Indian Towing for failing to

provide additional lighting or marking

on a dike so long as the light it

provided worked properly and did not

mislead the boater. Similarly, in Chute

v. United States, 610 F.2d 7, 13-15 (1

Cir. 1979), it was held that allegedly

inadequate warning devices were not

actionable under Indian Towing so long

as the devices provided worked properly.

Recognizing this 1l!mivation upon the

liability of the government at common

law, plaintiffs suggest Incian Towing is

applicable here because lights placed on

the ferry at the government's suggestion

“a aes

ferry would fool a boater into believing

no danger existed. Id. at 1031-32.

This, however, is no basis for finding

liability on the part of the United

States since it was not directly

responsible for the safety devices

installed.

In sum we do not perceive any basis

for saying that the United States

breached or failed to carry out any duty

imposed on it by statute or by common

law so as to render it liable in this

case. Accordingly the judgment against

the United States will be reversed.

III.

Liability of South Carolina

The district court found South

Carolina liable,> but we conclude that

6 insulates it

the Eleventh Amendemnt

from a judgment rendered by a federal

court. It would not be amiss for us to

distracted them from the cable and thus

misled them. When by its remedial

measures the government misleads a

boater and that causes an accident it is

actionable under Indian Towing. We

recognized that possibility in dicta in

Magno, and at least one court has so

held. Donily v. United States, 381 F.

Supp. 901 (D. Ore. 1974) (United States

liable for misleading weather

information provided by Coast Guard).