# Petition — Faust v. South Carolina State Highway Department > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1279%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1226 ## Text 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 I 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? II 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 4 4 I. 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 Be 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, 1 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 3 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, 4y 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, ae 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 54 28 , 30 48,54 30 34,46 62 63 28,37, 4) 42 30 a 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 63 54 35 26 42 41 17,41 61 41 41 41 41 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 57,60 52 53 2,52 45 42 43 17,24 38 al 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 50 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- * ae 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 os 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 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 ee 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. II 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- 4 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 & M > . 2 . . . A a ae aay . i eieaes 35 | i ad y ed ~ ™, 7s Ls a. , ~ 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 (c) the majority has failed to 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 OF 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, v. 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. I. 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 a 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 ¢ 7 “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). See also De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5 Cir. 1971) (United States would be liable if it negligently furnished misleading charts to navigator). In the instant case, the district court found that the safety devices installed "actually increased the risk caused by the cable ferry," 527 F. Supp. at 1044, presumably because the flashing lights of a landed explain why we decide this aspect of the case on this ground. From our examination of the record, we have no doubt that were South Carolina amenable to suit it should be held liable to some extent. It argues that plaintiffs are barred from recovery by their contributory negligence. The district court found that plaintiffs, and especially the decedent, were not quilty of contributory negligence as a result of the consumption of alcoholic beverages and that fir.cing is not 5. The parties concede that Highway Department is an agency of the State of South Carolina and a suit against Highway Department is a suit against the state. 6. The Amendment reads as follows: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. clearly erroneous. But there was other evidence of negligence--operating at excessive speed at night, without lights and without charts, in unknown waters-- and we have no doubt that there was some negligence on the part of decedent and perhaps the other plaintiffs. This case, however, is one in admiralty where the doctrine of comparative negligence obtains, and we are unable to agree that negligence on the part of plaintiffs and the decedent was the sole proximate cause of the collision. It is appropriate therfore that we consider an aspect of the case on which we can reach a judgment. In addition, Edelman v. Jordan, 415 U.S. 651, 677-78 (1974), states that an Eleventh Amendment defense is in the nature of a jurisdictional defense that may be raised at any time. Thus by deciding the case on this ground, we do no violence to the established canon that courts should not reach or decide constitutional issues except where they cannot be decided on non-constitutional grounds. A state's defense under the Eleventh Amendment can, of course, be waived, and the district court concluded that under our decision in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001 (4 Cir. 1968), South Carolina had impliedly waived its right to immunity and consented to suit when it undertook to operate a ferry on a navigable body of water subject to federal regulation. We agree that application: of the holding in Lauritzen to the facts of this case would result in that conclusion, but the decision in Lauritzen embodied a reading of Parden v. Terminal R. Co., 377 U.S. 184 (1964), which later Supreme Court decisions have shown is untenable. It follows therefore that Lauritzen is not a viable authority and should no longer be followed. In Lauritzen, we said, quoting Parden, 377 U.S. at 196, that "when a State leaves the aphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation." We applied that language to mean that when Virginia constructed and maintained a bridge-tunnel spanning the Chesapeake Bay at the Virginia capes--clearly navigable waters of the United States-- Virginia consented to be sued for damages sustained from a submerged obstruction in the waters. The sweep of the language of Parden on which we relied has been sharply curtailed by two later decisions. In Edelman v. Jordan, 415 U.S. 651 (1974), the Eleventh Amendment question which was decided was whether Illinois had waived its Eleventh Amendment immunity and consented to be sued by participating in a federal-state program of aid to the aged, blind and disabled. Reliance for an affirmative answer was placed, inter alia, on Parden. The Court, however, said that a state waives its immunity by entering an area subject to congressional regulation only where the governing statute required such a4 waiver "'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.'" Id. at 673, quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171 (1909). With respect to Parden, the Court said that its rationale was that it "involved a congressional enactment which by its terms authorized suit by designated plaintiffs against a general class of defendants which literally included States or state instrumentalities". Id. at 672. Even before Edelman was decided, in Employees v. Missouri Public Health Dept., 411 U.S. 279 (1973), the Court held that the Eleventh Amendment barred suit by state employees against the State of Missouri for overtime compensation under the Fair Labor Standards Act, because that Act, although it obligated Missouri to pay minimum wages and overtime, did not ae ae for obstructing navigable waters or expressly repeal a state's Eleventh Admendment immunity. Parden was again limited to the fact that the state (Alabama) conducted an activity normally carried on by private persons and corporations and thus brought itself squarely within the terms of the statute authorizing the proprietor to be sued. There is no claim in this case that there is any federal statute allowing a 3 private cause of action against states negligently operating a ferry. South Carolina has no state tort claims Statute. All there is is the fact that South Carolina operates a ferry in navigable waters. But under Parden, as explained by Edelman and Employees, this is not an implid waiver of Eleventh Amendment immunity and consent to suit, Faia ee ae ae” Rae fees 2. PR we - ee present operation of the ferry was hazardous and that it was only a matter of time before the Corps would have to close it down. On October 23, 1977, there was an accident involving the South Island ferry cable in which three persons were injured. On October 28, 1977, Brown, prompted by that recent accident, sent a telegram to Coffey in which he (1) requested a meeting on November 3, 1977 "to develop specific plans to remedy the South Island Ferry situation," and (2) directed the Highway Department, "pursuant to authority vested in the District Engineer by regulations promulgated under the Rivers and Harbors Act of 1899," to "minimize the operation of the ferry by restricting its use to the compelling needs of the South Island residents and those County, State and Federal Government personnel whose presence on the Island is necessary to the performance of their official duties." On November 3, 1977 there occurred the requested meeting of the representatives of the Corps, the Coast Guard, and the Highway Department, as well as other interested parties. On November 8, 1977, Coffey wrote to Brown, informing him that a schedule had been devised under which the ferry would operate on the hour, twenty-four hours a day, and that this schedule would reduce the number of ferry crossings from 30 to 24 per day. Coffey also stated that (1) a back-up siren would be installed on each side of the ferry, (2) the orange and white stripes on the side of the ferry had been repainted, and (3) speed limit signs reducing the speed of boats in the canal to 5 miles per hour had been erected on each side of the ferry crossing. On November 17, 1977, Coffey wrote to Brown advising him that the ferry would be operated every hour on the half-hour, instead of on the hour as proposed in the November 8 letter, and seeking the Corps' approval for this schedule. On November 18, 1977, United States District Judge Blatt, in the Doyle case, supra, 441 F. Supp. at 701, found 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 adequately to warn vessele of danger of the ferry cable and in failing to take steps to improve the safety of the situation. On November 22, 1977, Brown wrote to Coffey, in response to Coffey's November ' 8 and 17 letters, that the proposed schedule for operation of the ferry would result in only a 25% reduction in the number of crossings and was therefore unacceptable to the Corps. Brown directed the Highway Department to: (1) have in effect by December 2, 1977 a plan for further reduction of the number of crossings, by scheduling "minimal operation of the ferry to serve the needs of the South Island residents only"; (2) alter the wording of the "existing signs ... to stress the fact that there is a cable across and above the water surface when the ferry is in operation, and (3) 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." By a letter dated November 30, 1977, Coffey sent to Brown a revised schedule for operation of the ferry allegedly "based on the actual needs of the island residents." (Emphasis in originai.) In this letter Coffey also advised Brown that the Highway Department was "proceeding with the alterations to the existing warning signs to state in positive terms that 'There is a cable across and above the water surface when the ferry is in operation.'" On December 1, 1977, Coffey advised Brown that the Highway Department would post flagmen in boats upstream and downstream of the ferry, equipping those boats with flashing lights and electronic public address systems to be used to warn traffic of the hazard posed by the cable. Coffey stated his hope that the Corps would approve the State's proposal--consisting of the revised schedule, the alteration of the warning signs, and the stationing of the flagmen--to allow it to continue operating the ferry. By separate letter of December l, 1977, Coffey wrote to Brown confirming the Corps' extension of the deadline, from December 2 to December 5, 1977, for the Highway Department to submit plans for a permanent solution to the ferry cable problem. Coffey further stated the the Highway Department, with the aséistance of the Wildlife and Marine Resources Department, contemplated taking prompt action to obtain funding for a permanent solution. On December 6, 1977, the Highway - Department installed the four bottcm Signs reading CABLE ABOVE WATER WHEN FERRY IN OPERATION which existed on the night of the Faust accident, as earlier stated. On December 9, 1977, Brown wrote to Coffey that the Highway Department's plans to implement the revisd schedule, add warnings to the existing signs, and post flagmen in the canal "were satisfactory and in compliance with (Brown's) latest instructions." Brown reiterated "(the Corps') serious concern over the (ferry cable hazard) and (urged) that (the Highway Department) secure an early removal of (the) cable." -~ Brown neither set time limits, nor took actions to verify, the State's 4 completion of these goals. On December 11, 1977 there occurred “a the collision involving the Faust boat ; which is the subject of the case at bar. On December 12, 1977 the Highway Department authorized its District ' Engineer to hire flagmen to operate the advance warning flag boats proposed by Coffey to Brown in the December 1 letter. After December 11, 1977, Highway Department officials began corresponding with representatives of an engineering firm regarding the design of a self-propelled ferry. Brown and Coffey continued to correspond about the ferry. Specifications for the new self-propelied ferry were completed in . January 1978 and a contract was let for the construction of the ferry in February 1978. In the meantime, on January 26, 1978, Brown wrote to Mr. Cobb, by then the Chief Commissioner of the Highway “ Department, a letter stating: In accordance with... 33 CFR 322.4(a), I have , determined that the South Island ferry is a permitted structure since the cable was installed 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 accidents. Based upon the evidence presented and the recent findings by a Federal District Court Judge, I have determined that continued operation of the cable ferry constitutes a hazard to navigation in the area. In accordance with 33 CPR 325.7 . . ., I have reevaluated the circumstances d 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 currently in effect may continue until 3 March 1978. At that time total suspension of the operation of the cable ferry must occur unless you receive approvai for operation from this office. . The March 3, 1978 deadline referred to in the above letter was later extended to April 29, 1978. On April 29, 1978 the self-propelled ferry was put into operation at a cost of approximately $100,000. The total cost of the new ferry was paid for by the Highway Department out of funds that were on hand before December 11, 1977. In its opinion, Faust v. South Carolina Highway Department, 527 F. Supp. 1021 (D.S.C. 1981), the district court followed a path of reasoning which, although it included reference to principles of the common law of torts, also offered as an alternate basis for its conclusion certain federal statutes to which I need not refer. Unlike my brethren, I agree with the district court's judgment that on the facts of this case each of the defendants is liable to each of the a plaintiffs upon the basis of the companions who were fellow travellers. Such negligence was the only proximate cause of the death of Faust and of the injuries sustained by Bennett and Muldrow. Hence, I contrary to the majority of this court, am of opinion that, quite apart from the issue of causation, there was as a matter of fact no contributory negligence on the part of Faust or Bennett or Muldrow. But I do not stop with that statement about lack of causation. I stress that the district court found as a fact that the defendant Highway Department and the defendant United States did not bear the burden, which rested upon them, of showing that Paust, Bennett, or Muldrow was intoxicated. That finding is fully supported by the evidence: a half bottle of whisky, split among three or - a Ws LS » Aitaet eS Se a BO , We te) ee a a ee companions who were fellow travellers. Such negligence was the only proximate cause of the death of Faust and of the injuries sustained by Bennett and Muldrow. Hence, I contrary to the majority of this court, am of opinion that, quite apart from the issue of causation, there was as a matter of fact no contributory negligence on the part of Faust or Bennett or Muldrow. But I do not stop with that statement about lack of causation. I stress that the district court found as a fact that the defendant Highway Department and the defendant United States did not bear the burden, which rested upon them, of showing that Faust, Bennett, or Muldrow was intoxicated. That finding is fully supported by the evidence: a half bottle of whisky, split among three or maybe four persons, consumed by drinking over a span of several hours in one afternoon does not indicate that any of the imbibers was intoxicated at or after 6:15 p.m. on December 11, 1977. The district court also, in effect, found that neither defendant bore the burden of showing that Faust or his companions were contributorily negligent in not possessing on board and examining, or examining without possessing, nautical charts or other available published data before they set off on their recreational fishing trip in the canal. The district court was fully supported by the ratio decidendi in Lane v. United States, 529 F.2d 175, 180 (4th Cir. 1975). And in any event, the district court, independently of our own earlier guidance, was warranted in concluding that the plaintiff's lack of familiarity fe with charts and the like did not constitute contributory negligence, especially since the defendants did not prove that those documents showed that the cable was invisible at night. What is even more important is that were we to hold that Faust and his companions were at fault in having drunk whisky early in the day, or were at fault in not having read the available charts, or were at fault in proceeding at an unreasonably fast rate of speed, there would not be the slightest evidence to sustain the defendants’ burden of proving that had there been no such fault the accident would not have occurred. The defendants have not shown that had Faust and his fellow travellers been attentive they would have seen, or have been warned to take heed of, an “4 INVISIBLE CABLE. The majority have a invented a causation of which there is no evidence in the record and which is repugnant to the findings of the district judge. I now come to what seems to me the Achilles heel in the majority's opinion -~- the holding that South Carolina Highway Department is immunized from suit in the federal court by the Eleventh Amendment which provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. It is quite plain that the text of the Eleventh Amendment when read literally does not apply to this or any other suit in admiralty (as distinguished from a "suit in law or equity"), and does not apply to any type of action brought against a state by citizens of that state -- such as this suit by Faust against his own state of South Carolina (as distinguished from a suit "against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."). However, more than ow 4 century ago Ex Parte in the Matter of State of New York, No. 1, 256 U.S. 490, 497-500 (1921) conclusively settled that "the immunity of a State from suit in personam in the admiralty brought by a private person without its consent, is clear." Id. at 500. Thus the issue here is whether by its erecting a ferry cable as a structure over and in navigable waters, admittedly within the federal Jurisdiction, the State of South Carolina impliedly waived its immunity from suit in the federal court for damages caused by the negligent operation of that cable while lying in navigable waters. This question would be answered affirmatively were this court to adhere to the doctrine of Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001 (4th Cir. 1968). But the majority of this panel are prepared to overrule that case, out of deference to cited opinions both of the Supreme Court and of inferior federal courts. In my opinion, the cited Supreme Court cases are not governing, and the cited inferior court pantera are either not sound or not applicable to this case. I do not propose to subject to microscopic examination the cases cited by the majority, for I find a most helpful analysis of the relevant Supreme Court rulings has already been made by Lawrence H. Tribe, American Constitutional Law, 130-143 (1978) -- pages which are set forth in an appendix to this opinion, inasmuch as probably they would regrettably be otherwise not readily available to the judges and bar of the Fourth Circuit and perhaps other circuits. Stimulated by Professor Tribe's analyses, I first note that there is, so far as I am aware, no act of Congress which has explicitly provided that a person injured on navigable waters by another's negligent act in those waters shall have a cause of action in admiralty or otherwise. But such a person (or his representative if he has been killed by the other's negligent act) is nonetheless entitled to bring an action under federal maritime law against the wrongdoer, if he or it is a private person. Moragne v. States ¥ Marine Line Inc., 398 U.S. 375 (1970). Moragne stands for the proposition that there is a common -- in the sense of non-statutory -- law of federal origin, created by the federal judiciary, which applies to injuries in navigable waters. Were there an act of Congress which provided for the present action, then under the teaching of Parden v. Terminal © ilway of the Alabama State Docks Dept., 377 U.S. 184 (1964) -- a case whose vitality was recognized last year in United Transportation Union v. Long Island Rail Road Co., 455 U.S. 678, 685 (1982) -- it is indubitable that the state of South Carolina in connection with the operation of a ferry cable over = and in navigable waters would, despite general constitutional provisions inferentially including the Eleventh Amendment, have been subject to the jurisdiction of the United States courts in an action brought by a person who suffered damages through an injury caused by the states's or the state's agent's negligence. Operation of a ferry like "operation of a railroad engaged in interstate commerce is not an intergral part of traditional state activities generally immune from federal regulation." United Transportations Union v. Long Island Rail Road Co., Supra. Noi, by parallel reasoning, is it immunized, by the text of the Eleventh Amendment, from suit in the courts of the United States. The majority opinion's failure to recognize the continued vitality of r Parden is contra-canonical as the parts of Professor Tribe's book set forth in the appendix to this opinion demonstrate. Of course, this case at bar is unlike Parden or United Transportation Union because here there is not a Congressional statute which explicitly provides for liability to persons injured by negligent acts performed on navigable waters. But the policy considerations which underlay Moragne v. States Marine Line's Inc. dictate a conclusion that the absence of a statute is not a fatal flaw in the plaintiffs' case at bar. To be sure, where Congress has passed a relevant statute, there is a clear basis for saying that it is reasonable to suppose that state interests will have been adequately considered while the legislation was being adopted. But specific legislation ae a 7 Ca “" is unnecessary on personal injuries. The whole trend of twentieth century legislation and other governmental activity would convince any objective observer that the American people by enactments of many types and manifestations of popular will intend to subject state and federal governments to liability for damages for personal injuries which such governments have negligently caused individuals. It would be a work of supererogation to recite the long list of indicia of that attitude. Cf. Moragne, supra. Were the matter of liability of the Highway Department of South Carolina to suit in the federal courts on a personal injury claim of a person injured by the state's negligence on navigable waters doubtful, there would be a compelling reason on the facts of this case to navigable waters are governed by the principle that a person who creates a4 * structure or other artificial condition on land, or on water over land, whether the land be his own or another's, which he realizes or should realize will involve an unreasonable risk of physical harm to another is subject to liability to that other for such physical harn. Restatement (Second) Torts Section 364. In the case at bar, on water over land, the Highway Department created a . ferry cable which was (according to the evidence apparently believed by the district court) invisible at night, 527 F. Supp. 1030, lines 9-10, by travellers proceeding at either a reasonable or unreasonable rate of speed on the channel. The Department's conduct, in creating such a cable was, as a matter - of law, negligent toward Faust and his r sustain the state's liability here. This is not a case in which the plaintiffs were injured by a vessel owned by the state and licensed by the federal government to sail in navigable waters controlled by the federal government. Cf. Frankfurter, J. dissenting in Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 288 (1959) lines 12-16. Here we are concerned with an injury inflicted by a structure on the navigable waters. Were these only a vessel involved, no one could suppose that the United States would itself become liable to a third person-for an injury caused by the state's operation of the vessel. But it is otherwise with a structure placed by the state on navigable waters. If this structure be placed there with the conset, express or implied, or even the knowledge and acquiescence, of the United States, it is at least arguable (in fact, as I shall later demonstrate it is more than arguable) that the United States would be liable to third persons who are injured by the negligent construction, operation, or maintenance of the structure. Hence it is only reasonable for a court to infer that when the United States permitted the state to erect and maintain such a structure both the United States and the state contemplated an implied waiver by the state of its immunity under the Eleventh Amendment to suits brought by third persons based on negligent state construction, operation, or maintenance of the structure (i.e., the cable). In short, I am of opinion that in the case at bar the Highway Department * impliedly waived its Eleventh Amendment immunity. I also disagree with the conclusion of the majority that the United States is not liable to the plaintiffs -- and it seems to me that on this as on the preceding point this court has fallen into such fundamental and potentially mischievous error likely to mislead later courts as to furnish strong support for a petition by the plaintiffs for a writ of certiorari from the Surpreme Court of the United States. I can see no plausible ground for not applying, by analogy, to the United States the familiar principle that "the duty of maintaining a highway (on land or sea) in a condition safe for travel is .. +. placed upon the municipal subdivision (or other public body) which holds the highway open to the public for . travel." Restatement (Second) Torts Section 349, comment b. In the case at bar it was the duty of the United States to travellers on its channel to maintain in free of an INVISIBLE ferry cable or alternatively in the clearest terms to warn travellers of this hidden and hardly to be anticipated hazard, the nature and danger of which were fully known to the responsible officers of the United States. The argument that neither the Highway Department nor the United States should have been expected to take immediate action to make by phosphorescence or other means the cable wholly visible at night and to warn in the most explicit terms of the danger to life from the hidden cable is an argument that seems to prefer money to “4 lives. So far as appears, it did not take a legislative act of South Carolina to buy phosphorescent paint and to post visible notices with explicit warnings. Any decent regard for the concern expressed by District Judge Blatt in his direct communication to the responsible federal officials, written after that judge sat in an earlier case parallel to the present case, probably would have saved Faust's life. I would affirm the district court's judgment awarding compensation to Faust's administratrix and his companions. To sum up the matter: l. On the issue of the alleged negligence of the defendant Highway. Department of South Carolina, I agree with my brethren that the Department was negligent in continuing to maintain, as of December 11, 1977, a cable which was invisible at night. 2. On the issue of the alleged contributory negligence of Faust and his companions, I dissent from my brethren's opinion (a) that those plaintiffs were contributorily negligent and (b) that their supposed negligence was a cause of their injuries. But I do not suggest that, if it stood alone, this point would merit review by this court en banc or by the Supreme Court. However, if other points do merit such review, then it might be thought that this point would properly deserve further consideraton. 3. Unlike my brethren, I do not regard the Eleventh Amendment as a barrier to the plaintiffs' claim. (a) One reason is that Congress has the constitutional power to require a state to respond in a federal court to the suit of a plaintiff who claims that he 22 was injured over navigable waters as to which the United States has paramont ’ power. Admittedly, here the Congress has not in haec verba so required. But in a plethora of.recent enactments Congress has subjected to liability not only others but, as the Federal Tort Claims Act emphasizes, the federal government itself to an obligation to meet in the United States Courts this type of claim. Only one who seeks a formal, technically-apt declaration would insist on more proof that Congress has adopted a policy of imposing liability on South Carolina. (b) A quite independent reason for my ‘ conclusion that the State of South Carolina cannot successfully invoke the E Eleventh Amendment is that the State has clearly waived the application of that a Amendment. The correspondence of the 4 parties shows that South Carolina consciously chose to be subject to liability as the price of continuing the cable in operation. In his April 7, 1977 letter Cobb informed Judge Blatt that the Highway Department was discussing with the South Carolina Attorney General the very course of conduct the Department adopted: i.e., "continued operation of the present ferry, with the liability that may be involved." What South Carolina's authorized representatives meant by "the liability that may be involved" is indisputable: it is the kind of liability on which Judge Blatt had premised judgment in Doyle v. U.S., supra. That is the very type of liability upon which rests the district court's judgment in this case. (c) A further independent reason for my conclusion is that a waiver should be implied because it is plain that the United States would not have licensed South Carolina, and South Carolina would not have expected to receive a license from the United States, to lay a cable across navigable waters unless the State of South Carolina had impliedly, if not expressly, agreed to be liable for any injuries caused travellers by the negligent construction, operation, or maintenance of that cable. If such 4 cable were negligently constructed, operated, or maintained, the government of the United States would have been at least arguably (and, as this opinion declared, would indeed have been) liable for injuries caused by the continued operation of the cable. The liability is that which flows from ownership of an area upon which, with the owner's a aa =“ consent, another person created or maintained the structure which caused the damage for which compensation is sought. 4, Contrary to my brethren, I regard the liability of the United States to the plaintiffs as fully supported by the Federal Tort Claims Act. If we had a suit against the City of Charleston, South Carolina, for an injury cause to the plaintiff by a barrier a third person negligently erected to block a public road, the City as owner of the roadway would be liable to the plaintiff. Pari passu the United States is liable to these plaintiffs. decision that it made any attempt to carry out the Supreme Court's mandate a felony punishable by hanging without benefit of clergy. Other reactions were only less extreme. At least part of the anti-Chisholm clamor sounded in self-interest: the states feared ruinous suits on Revolutionary War debts.” Contemporary critics, jealous and perhaps fearful of the newly created power of the federal judiciary, must also have heard the whisper of betrayal, 3. See G. Gunther, Cases and Materials on Constitutional Law 4. See Cullison, "Interpretation of the Eleventh Amendment," 5 Houston L. Rev. 1, 7, 9, 16 (1967); Jaffe, "Suits Against Governments and Officers: Sovereign Immunity," 77 Harv. L. Rev. 1, 19 (1963). Other pecuniary motives included the desire to avoid suits seeking restitution of confiscated Loyalist property and the desire to retain lands placed in the public domain by legislative flat. nee C. Jacobs, The ™ , n. . ’ for the most ardent constitutionalists had given positive assurances that article III did not work a surrender of state sovereign immunity. Within five years, Chisholm could claim the distinction of being the first Supreme 5. "Yt Is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without (the Sovereign's) consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. nless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States ..." The Pederalist No. 81, at 487-88 (C. Rossiter ed. 19561) (A. Hamilton). This Blackstonian rhetoric, compare W. Blackstone, t » at » may been as much political expedient as political theory. Pollock and Maitland found sovereign immunity in England to be an historical "accident" caused by the ramidal structure of feudal courts, and not a basic idea implicit in ay concept of sovereignty. See 1 F. Pollock & FP. Maitland (24 ed. : Court case to be overruled by «a constitutional amendment. Eleventh amendment ® jurisprudence has left no doubt that the amendment not only reversed Chisholm, but also countermanded any judicial inclination to interpret article III as self-executing abrogation of state immunity from suit, thereby reinstating the original understanding that the states surrendered sovereign immunity only to the extent inherent "in the acceptance of the constitutional plan."’ 6. The eleventh amendment provides that: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against any one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. 7. Monaco v. Misstosipes 292 U.S. 313, 330 " e quo anguage is a : paraphrase of Hamilton's Federalist No. 82, quoted in note 5, SHEER on's understand or tates had not surrendered It is therefore not suprising that the Surpeme Court, in deciding eleventh amendment cases, has focused not on the language of the eleventh amendment, but on the concept of sovereign immunity of which it is a reminder and "exemplification."® Thus, unlike the identical reference to "the judicial 7. Ceontinued) sovereign immunity by ratifying article III is corroborated by statements of Madison and Marshall before the Virginia Convention. See 3 Elliot's Debates 533 (2d ed. 1901) (Madison); id. at 557 (Marshall), quoted in Monaco v. Mississippi, supra, at 323-20. The Monaco Court adopted Hamilton's view that the structure of the federal union implied that state sovereign immunity was limited in at least two cases: suits against a state by another state, see id. at 327-28; and suits by the United States against a state, see id. at 328-29. 8. See, e.g., Ex parte New York, 256 U.3. 497 (1921). See also H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 806-07 (tent.ed. 1958) (Court has treated eleventh amendment "as if it were a precedent to the opposite of Chisholm"). Power of the United States" in article III--a power which cannot be expanded by legislation? or by consent of the parties to a lawsuit?°--the language of the eleventh amendment has not been interpreted to prohibit a suit once a 11 Under a state has given its consent. similarly flexible interpretation, suits against nonconsenting states brought by foreign nations are barred, 12 although this array of parties is not proscribed by the terms of the constitutional provision. 5. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 10. See Louisville & N.R.R. v. Mottle 211 U.S. ; Mansfie : L.M. Ry. v. Swan, 111 U.S. 379 (i884). ll. See Clark v. Barnard, 108 U.S. 436, 447 (1883) (*immurity se suit belonging to a State... is a personal privilege which it may waive at pleasure") 12. Monaco v. Mississipp!, 292 U.S. 313 (1934). ~~ —_ _—~ = APPENDIX FEDERAL JUDICIAL POWER Section 3-35 The Bleventh Amendment as an Exemplification of Sovereign unity In Chisholm v. Geor ia,? the Supreme Court accepted original jurisdiction of @ suit brought against the State of Georgia by two South Carolina citizens to collect a debt owed an estate. The Court took article III literally, refusing to condition the constitutional grant of authority to the federal courts to adjudicate ~Atroversies .. =. between a Stes and Citizens of another State"* on the defendant state's consent to suit. Response to Chisholm was not mixed. The Georgia House of Representatives was so exercised by the I. 2 U.S. (2 Dall.) 419 (1793). 2. U.S.Const. art. III, Section 2. the officer for the specific actions contested. °° Second, if the plaintiff 22. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1975); Great Nothern Life Ins. Co. v. Read, 322 U.S. 47, 50-51 (1944); In re Ayers, 123 U.S. 443, 500-01 (1887) ("the defendants, though professing to act as officers of the State, are threatening a violation of the personal or property rights of the complainant"). See also United States v. Lee, 106 U.S. 196 (1882) (action In ejectment against United States officers not barred by sovereign immunity). See generally P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal system 930-37 (2d ed. 1973). One court has suggested that damage awards against an individual officer might violate the eleventh amendment if the officer were indemnified by the state. See Hallmark Clinic v. North Carolina Dep't of Human Res., 360 F. o7k} > a nN. (E.D.N.C. 1974) (three-judge court). See also Edelman v. Jordan, 415 U.S. 651, 664 ese funds will obviously not be paid out of the pocket of petitioner Edelman"). Such a voluntary assumption of an officer's liability ought to be insufficient to create eleventh amendment immunity. In the parallel case of intergovernmental tax immunities, assumption by the federal executive of state taxes levied against @ private party is not enou to create tax immunity. See Section 6-28 to 6-30, @- Belli 25. An excellent example of this schizophrenia can be found in Parden v. 25. (continued) Terminal Ry., 377 U.S. 184, 192 (1964): y empowering Congress to regulate commerce, then, the States necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation. . - »« Our conclusion is simply that Alabama, when it began operation of an interstate railroad approximately 20 years after enactment of the FELA, necessarily consented to such suit as was authorized by the Act." Section 2-38 The Conundrum of onstructive Waiver Prior to 1964, eleventh amendment cases imposed an exacting requirement of proof of state consent to suit: "express language or... such overwhelming implication from the text [of the state statute claimed to waive immunity] as would leave no room for any other reasonable construction." But in Parden v. Terminal Railway, the Supreme Court employed a new concept of "constructive waiver" to remove the eleventh amendment bar to a negligence action brought by Alabama citizens under the Federal Employers Liability Act (FELA) against a railway owned by the State of Alabama and operated by it in a. eee v. Wilson Distilling Co., 213 ewe 7 . 2. 377 U.S.. 184 (1964). = ~ ~ . 5 Ae , Jt ee Le oe Oe ee: oa ee ee + interstate commerce. The Alabama constitution and Alabama Supreme Court decisions foreclosed the possibility that the state had actually "consented" to the suit under traditional standards. The FELA, however, specifically provided that "[e]very common carrier by railroad" engaged in interstate commerce would be liable in damages to injured employees in "an action. . . brought in a district court of the United States . . ."3 The Parden Court held that this legislation transmuted the state's operation of the railroad into a constructive "waiver" of eleventh 4 It insisted that amendment immunity. Congress' power to regulate interstate commerce, delegated by the states in article I, is plenary and thus necessarily brooks no restraint by the 3. 45 U.S.c.A. Sections 51, 56. 4, 377 U.S. at 190-92. ; ¥ ve ‘ . me ~~" : ~ ee ei Ce a en. ae ae - s - states on its exercise.” When Congress has authorized federal courts to entertain suits in the necessary and proper furtherance of the regulation of interstate commerce, sovereign immunity can be no bar.© For this reason, Alabama by its actions in operating a railroad subject to national regulation had "necessarily consented to such suit as was authorized by" the FELA. ! The Parden Court refused to make state law dispositive of the waiver question, fearing that Congress' article I power would be rendered "meaningless if the State .. . could conclusively deny the waiver... _08 Thus, Parden clearly indicated that even a contemporaneous 5. id. at 192. 6. Ia. 7. Ia. 8. Id. at 196. -B-il8= | state expression of nonconsent could be disregarded: “Where a State's consent . » « is alleged to arise from an act... - within a sphere... subject to the constitutional power of the Federal Government, the question whether the State's act consititutes the alleged consent is one of federal law."9 In the 1973 case of Employees v. Department of Public Health and Welfare, /° the Supreme Court reaffirmed Congress' power to bring "the States to heel, in the sense of lifting their immunity from suit in a federal court," but signaled that exercise of such power would not be presumed without clear evidence of congressional purpose. Thus, although section 16(b) of the Fair 9. Id. 10. 441 U.S. 279, 283 (1973); see id.-at 284-85. ~ 4 t zx ‘ B * - B19 - we ae eS . win Te) PTS nN Oa oe ee « : re 3 * If concerns of federalism T3. E.g., North Dakota v. Minnesota, 263 U.S. 365, 372-73 (1923). 14. E.g., United States v.Mississippi 380 U.S. 1 - 15. Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 379- Bs. 407 (1821); accord, ee v. Reeves, 178 U.S. 436, 445 a ugh state may Limit consent to suits in its own courts, supremacy _ Absent such a4 choice, Justice Marshall would deny that even the most explicit congressional specification of state amenability to suit can empower a federal court to hear a case. 2° Justice Marshall was, 35. Id. at 296. Although Justice Marshall's opinion in Employees used the idion of private rights, he wisely did not posit a complete congruence between state immunities and private rights, concepts at best tenuously connected. 36. Id. at 293-97. Justice Marshall argued that, although Congress could not compel a state to submit to a Section 16(b) suit in federal courts, it could compel such submission in state courts. See id. at 297-98. It is not clear, however, whether Justice Marshall based his assertion that the eleventh amendment is "nothing more than a regulation of the forum," id. at 298, in which a federal-question plaintiff may ~ B-130 - beginning its railroad operations. > The difficulty with Justice Marshall's position, however, is that.it proves too much. For if states have a right under article III and the eleventh amendment not to be subjected to unconsented suits in federal court, then it would seem that Congress lacks the power to condition even their subsequent entry into various activities upon state forfeiture of that right, however knowing and voluntary. 2° Even a state 36. (continued [2]) state itself. See 411 U.S. at 297-98 &n. 12. This clearly oversteps Testa's bounds: How can a state be charged with discrimination against a federal claim when it allows no suits in state courts against the sovereign? 37. 411 U.S. at 296. 38. See, e.g., Terral v. Burke Const. Co., 257 U.S. 529 (1922) (corporation cannot be compelled to waive right to resort to federal courts in order to do business in state); ef. Shapiro v. Thompson, 394 U.S. 618 (T5965) urational residency requirement for that "chose to participate in an unconstitutionally conditioned program with its eyes wide open"39 would presumably be protected against imposition of an independently offensive condition. The only ready escape from that conclusion is to deny that the state in fact has a right, in the sense that private persons have rights, against congressionally compellei 38. (continued) receipt of welfare benefits invalidated as burden on right to travel); United States v. Jackson, 390 U.S. 570 (1968) Cunconstitutional to force defendant to choose between guilty plea and trial by jury where jury, but not judge, could impose death penalty). See generally Yale, "Unconstitutional Conditions and Constitutional Rights," 35 Colum. L. Rev. 321 (1935); Note, "Unconstitutional Conditions," 73 Harv. L. Rev. 1595 (1960); Note, "Another Look at Unconstitutional Conditions", 117 U.Pa. L. Rev. 144 (1968). But see note 35, supra. 39. Edelman, 415 U.S. at 893 (Marshall, J., dissenting). - B-133 - Bast oe Labor Standards Act (FLSA) made employers liable to private damage suits "in any court of competent jurisdiction, "24 the Court declined to construe a 1966 amendment extending the Act's coverage to state hospitals and 12 schools as enforcing a corresponding waiver of eleventh amendment immunity .>> The Court indicated that the authority of the Secretary of Labor to bring suit 12. See id. Sections 203(d), (r), (s). 13. See 411 U.S. at 285. The Court seemed influenced by two notions: first, that the schools and hospitals in Employees were somehow more an expression of "sovereign" power and less an extension of "proprietary" state interests than the railroad in Parden, sec 411 U.S. at 284-85; Parden v. Terminal Ay 377 U.S. 1st 196 (1964) semble when a State leasves the sphere that is exclusively its own"); and second, that the double damages provision of Section 16(b) appeared inconsistent with a “harmonious federalism," 411 U.S. at 286. - B-120 - re = to enjoin further violation and recover unpaid wages adequately safeguarded federal interests in FLSA enforcement.!4 The stark result in Employees, however, was that the remedies available for FLSA violations affecting public employees were limited by the preexisting presumption that "a federal court is not competent to render judgment against a eld 16 nonconsenting Stat Edelman v. Jordan, decided in 1974, continued the Court's chary approach to constructive waiver. The Edelman Court held that a federal district court could not order Illinois officials to "release and remit" federally-subsidized welfare benefits if, Kil U.S. at 285-86. 15. Id. at 284, 16. 415 U.S. 651 (1974). rs ¢ illegally withheld from Illinois citizens.!’ ‘The Court concluded that state participation in a federal program could not in itself be taken to signify "consent on the part of the State to be sued in the federal courts ."28 State officers may be sued in federal court to compel future compliance with welfare regulations, -? but the Court declined to f'nd constructive waiver where the "only 17. Federal regulations provided that benefits under the Aid to the Aged, Blind, and Disabled categorical grant program should be paid within a prescribed period following submission of a qualifying application. lilinois paid benefits only after applications were approved, even if state application review procedures overran the federal deadlines. Id. at 653-55 & nn. 3, 4. 18, 415 U.S. at 673. 19. See, e.g., Graham v. Richardson, 403 U.S. 365 (1971); Goldberg v. Kelly, 397 U.S. 254 (1970). They may also be sued to compel them to share future costs of compliance with a decree remedying violations for which they shared responsibility. Milliken v. Bradle (II), 97 S.Ct. 27 ° om ‘ ry - B-122 - we Ree ee ”, es . 7. - ist? ee Se ee language in the [federal legislation] which purported to provide a federal sanction against a State [by cutting off future fund) .. . by its terms did not authorize suit against anyone. . _n20 Finally, in Fitzpatrick v. Bitzer, the Court found the clear evidence of 21 congressional purpose it could not find in Smployees and Edelman. Congress, in adopting the Equal Employment Opportunity Act of 1972, °° had amended Title VII of the Civil Rights Act of 196423 to include "governments, governmental agencies [and] political subdivisions" Thus, the prerequisite for application of Parden's constructive waiver doctrine, absent in Employees and Edelman, had at last been met; the only issue was whether Congress in this case indeed possessed the power to roll back the states' eleventh amendment immunity. Treating the 1972 Act as an exercise of congressional authority under Section 5 of the fourteenth amendment, the Court held that Congress could in fact require ° Ve at 451-52. = Bel24a- oe Ma er amenability to suit in federal court. 1° This possibility in turn suggests a broader reformulation of the theory underlying Parden and its progeny. WO. Another possible alternative would be to approve enforced waiver only when the need is "compelling." Cf. Storer v. Brown, 415-.U.S. 724, 728-37 (1974) Was statute burdening right to vote upheld because of compelling state interest). Such an approach, however, partakes of the difficulty inherent in distinguishing between measures that are merely rationally related to achieving a legitimate federal purpose and those that are absolutely necessary. See Note, "The First Amendment Overbreadth Doctrine," 83 Harv. L. Rev. 844, 914 (1970). Moreover, a case-by-case search for "compelling" federal interests in coerced waiver of state immunity would enable the federal courts to deny sovereign immunity on the basis of their independent evaluation of federal interests: this would be tantamount to using the article III grant of federal question jurisdiction to abrogate sovereign immunity, a result against which the eleventh amendment surely argues. See, e.g., Employees v. Department of Pub. Health & Waifare, 411 U g 279 (1973) (federal question jurisdiction insufficient to prevent successful plea of sovereign immunity): 40. (continued) Duhne v. New Jersey, 251 U.S. 311 (1920) (same): Hans v. ' Louilsana, 134 U.S. 1, 15 (1890)(same). Section 3-37 An Alternative Theory o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1279%3A1. Public record. Not legal advice.