Salvaging a Capsized Statute: Putting the Public Vessels Act Back on Course

• Publication year: 2010

Georgia State University Law Review

Volume 29 j 5

Issue 2 Winter 2013

4-3-2013

Salvaging a Capsized Statute: Putting the Public Vessels Act Back on Course

Jefferson A. Holt

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Recommended Citation

Holt, Jefferson A. (2013) "Salvaging a Capsized Statute: Putting the Public Vessels Act Back on Course," Georgia State University Law Review: Vol. 29: Iss. 2, Article 5.

Available at: http://digitalarchive.gsu.edu/gsulr/vol29/iss2/5

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SALVAGING A CAPSIZED STATUTE: PUTTING THE PUBLIC VESSELS ACT BACK ON COURSE

Jefferson A. Holt

Introduction

"Originally, the words of the Public Vessels Act seemed to mean what they said."¹

The Public Vessels Act (PVA) waives federal sovereign immunity for, among other things, "damages caused by a public vessel of the United States."² At first sight, these words seem clear enough. But, under a deceivingly calm surface awaits a riptide of uncertainty and tangled history. Since 1916,³ Congress has enacted various statutes intended to waive sovereign immunity in the admiralty context.⁴ As a result, there is significant and confusing overlap between the extant statutes.⁵ On account of such overlap, the Maritime Law Association of the United States (MLAUS) in 1983 recommended that Congress repeal the PVA.⁶ Despite such a credible call for reform, nearly thirty years later the statute remains.⁷

* J.D. Candidate, 2013, Georgia State University College of Law. With sincere gratitude to those who helped guide me and this project along the way; thank you for forcing me to think harder and write better every day. And with love to all of my family—especially my wife Lana and our son Tucker—for their inimitable patience, encouragement, and support.

1. Marine Coatings of Ala. v. United States, 71 F.3d 1558, 1562 (11th Cir. 1996).

2. 46 U.S.C. §§ 31101-31112 (2006).

3. Shipping Act of 1916, ch. 451, 39 Stat. 728 (repealed 1996 with select provisions currently

codified in 46 U.S.C.).

4. See generally United States v. United Cont'l Tuna Corp., 425 U.S. 164 (1976); Thomas J. Schoenbaum, Admiralty and Maritime Law 861-70 (2d ed. 1994); Fritz G. Faerber, Admiralty Claims Against the United States, 20 F. 122 (1985).

5. See, e.g., Tobar v. United States, 639 F.3d 1191, 1199 (9th Cir. 2011) (finding claim alleging negligence of Coast Guard crew in interdiction, search, and towage of fishing vessel to fall within the scope of the PVA); Uralde v. United States, 614 F.3d 1282, 1288 (11th Cir. 2010) (holding claim alleging negligence of Coast Guard crew members in application of medical care during interdiction at sea to be governed by the Suits in Admiralty Act).

6. Comm. on Mar. Legislation of the Mar. Law Ass'n of the U.S., Document No. 646, Recommendations for Repeal of the Public Vessels Act and Amendment of the Suits in Admiralty Act (1983) [hereinafter Repeal], available at http://www.mlaus.org (select "Library" hyperlink; then "Numbered MLA Historical Documents" hyperlink); see also Peter Child Nosek,

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Today, the scope of the PVA's "damages caused by a public vessel" provision ("Damages Provision") is uncertain.⁸ In particular, it is unclear whether the claimed damages must be a direct result of the negligent operation or navigation of the public vessel, or if the mere involvement of a public vessel is sufficient to trigger the PVA's waiver of sovereign immunity.⁹ It is also unclear whether the PVA should be limited to those contract claims expressly enumerated within its provisions (i.e., towage and salvage claims),¹⁰ or whether plaintiffs can also entertain general contract claims involving public vessels under the Damages Provision.¹¹ The Supreme Court on two occasions intimated that a generally broad construction of the PVA is proper.¹² However, the Court's decisions do not establish a clear and definitive standard.¹³

As a result of the Supreme Court's reticence, the circuit courts— led by the divergent views of the Ninth and Eleventh circuits—differ as to the scope of the Damages Provision.¹⁴ The Ninth Circuit

Unifying Maritime Claims Against the United States: A Proposal to Repeal the Suits in Admiralty Act and the Public Vessels Act, 30 J. Mar. L. & Com. 41 (1999).

7. See 46 U.S.C.A. § 31102 (West, Westlaw current through P.L. 112-42 (excluding P.L. 112-40, 112-41)). Admittedly, the arguments in favor of repealing the PVA are convincing. However, this Note presumes the statute will retain its force and does not seek to renew the calls for reform.

8. See Schoenbaum, supra note 4, at 869 (recognizing that "difficult and unique questions arise when it comes to applying the standard of due care to certain governmental functions," while identifying a discretionary function exception in the PVA). But see Taghadomi v. United States, 401 F.3d 1080, 1088 (9th Cir. 2005) (holding a claim alleging negligent search by the crew of a Coast Guard vessel falls within scope of the PVA). For a summary of the factual background and reasoning in Taghadomi, see infra note 103.

9. Compare Tobar, 639 F.3d at 1198-99 (merely involved), with Uralde, 614 F.3d at 1288 (in the operation of).

10. 46 U.S.C. § 31102(a)(2) (2006).

11. Compare Marine Coatings of Ala. v. United States, 71 F.3d 1558 (11th Cir. 1996) (no general contract suits), with Thomason v. United States, 184 F.2d 105 (9th Cir. 1950) (opposite).

12. See Am. Stevedores, Inc. v. Porello, 330 U.S. 446, 454 (1947) (extending the PVA to claims for personal injuries caused by a public vessel when a ship's beam fell into the hold and struck a longshoreman); Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 223-24 (1945) (extending the PVA to noncollision cases when the negligence of Naval personnel in operation of a vessel as a tow caused a private vessel to strike a submerged wreck); see also discussion infra Part II.C.

13. See, e.g., United States v. United Cont'l Tuna Corp., 425 U.S. 164, 180-81 & n.21 (1976) (intimating no view as to whether contract claims not enumerated in the PVA may be brought under the act); Calmar S.S. Corp. v. United States, 345 U.S. 446, 456 n.8 (1953) (suggesting it should not be assumed that all contract claims may be brought under the PVA).

14. See Tobar, 639 F.3d at 1199 n.3 ("We recognize that the Eleventh Circuit has disagreed with our broad reading of the [PVA]."); Marine Coatings, 71 F.3d at 1563-64 (identifying the Ninth Circuit's interpretation as "by far the broadest reading any court has given the PVA").

2013] PUBLIC VESSELS ACT 495

construes the PVA broadly and permits suit for all damages, sounding in contract or tort, which arise out of the operation of a public vessel.¹⁵ In contrast, the Eleventh Circuit construes the statute strictly: a contract claim must be of the type enumerated in the PVA,¹⁶ and a tort claim must involve damages caused by the operation or navigation of a public vessel or by the public vessel itself.¹⁷ A recent Ninth Circuit opinion¹⁸ brings this split of authority to the fore and invites a resolution to establish reliability and consistency across the circuits.

This Note considers the waiver of federal sovereign immunity in the admiralty context and attempts to define the proper and intended scope of the PVA. Part I briefly introduces sovereign immunity and admiralty law generally, reviews the history of the United States' waiver of sovereign immunity in the admiralty context, and analyzes the decisions creating the circuit split.¹⁹ Part II considers the statute in context, applies rules of statutory interpretation, reconsiders relevant Supreme Court precedent and the legislative record, and briefly considers important policy implications of the alternative interpretations.²⁰ Part III proposes a solution that, rather than advocating repeal of the PVA, employs a strict interpretation of its terms and promotes coherent application in harmony with the Suits in Admiralty Act (SAA).²¹

15. Tobar, 639 F.3d at 1198-99 (negligent search and towage of fishing vessel by Coast Guard); Thomason, 184 F.2d at 107-08 (wage claims of seamen working aboard public vessel).

16. Only towage and salvage claims are expressly enumerated in the PVA waiver. 46 U.S.C. § 31102(a)(2) (2006).

17. Uralde v. United States, 614 F.3d 1282, 1286-87 (11th Cir. 2010) (alleged negligence of Coast Guard crew while aboard interdicted private vessel not justiciable under PVA); Marine Coatings, 71 F.3d at 1563-64 (maritime lien claim outside scope of PVA).

18. Tobar, 639 F.3d 1191.

19. See discussion infra Part I.

20. See discussion infra Part II.

21. 46 U.S.C. §§ 30901-30918 (2006); see discussion infra Part III. For a similar but more narrowly defined discussion of the PVA published shortly before this Note went to print, see generally Kenneth P. Raley III, Comment, The Public Vessels Act and Maritime Injustice: Provi[di]ng Redress to Deserving Foreign Admiralty Tort Victims, 10 Loy. Mar. L.J. 429 (2012) (analyzing only the Damages Provision of the PVA and proposing a strict construction in situations where government agents cause injury to foreign individuals or their property while aboard a private vessel).

496 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 29:2

I. First Principles: Sovereign Immunity And Admiralty Law

A. Sovereign Immunity: American As Apple Pie?

Sovereign immunity is based in the English common law maxim "the king himself can do no wrong."²² Despite the lack of any direct reference to federal sovereign immunity in the Constitution,²³ it is hornbook law that the United States cannot be sued without its consent.²⁴ Chief Justice Marshall recognized: "[t]he universally received...