No. 99-1671
In the Supreme Court of the United States
CHRISTINA BREWER, PERSONAL REPRESENTATIVE FOR THE ESTATE OF RICHARD BREWER,
DECEASED, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
ROBERT S. GREENSPAN
JOHN P. SCHNITKER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
The government's liability for maritime torts under the Suits in Admiralty
Act (SIAA), 46 U.S.C. 741 et seq., is the same as that "obtaining in
like cases between private parties." 46 U.S.C. 743. Suits for maritime
torts under the Public Vessels Act (PVA), 46 U.S.C. 781 et seq., "shall
be subject to and proceed in accordance with" the requirements of the
SIAA, to the extent the SIAA is not inconsistent with the PVA. 46 U.S.C.
782. The question presented is:
Whether, for purposes of suit under the SIAA and PVA, the conduct of the
Coast Guard in attempting to rescue a stranded vessel is subject to the
"Good Samaritan" standard applicable to private parties or to
a different standard.
In the Supreme Court of the United States
No. 99-1671
CHRISTINA BREWER, PERSONAL REPRESENTATIVE FOR THE ESTATE OF RICHARD BREWER,
DECEASED, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-3a) is unpublished, but
the judgment is noted at 210 F.3d 381 (Table). The opinion of the district
court (Pet. App. 1c-15c) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on December 30, 1999. The
petition for a writ of certiorari was filed on March 24, 2000. This Court's
jurisdiction is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. Petitioner Christina Brewer claims that the United States Coast Guard
is responsible for the death of her husband, Richard Brewer (Brewer), in
a boating accident in Monterey Bay, California. On October 29, 1994, Brewer
and David Hoover went fishing in Monterey Bay on Brewer's boat, the Foxtrot.
About a half-mile from shore, the Foxtrot experienced engine difficulties
and Brewer and Hoover were unable to get it restarted. Pet. App. 2c. Brewer
established radio contact with Brandon Hansen, the Coast Guard operator
on duty, and told him that they required assistance because the Foxtrot's
motor had gone out. Hansen, under the supervision of Gary Walker (the Coast
Guard Officer of the Day and the Search and Rescue controller for Monterey
Bay), requested the Foxtrot's position and asked whether they were in immediate
danger. Id. at 2c-3c. Brewer advised Hansen of the Foxtrot's position and
stated that they were not in immediate danger. Hansen asked them to anchor
the Foxtrot and don life jackets. At the same time, Walker informed Dennis
McGraw, coxswain of Coast Guard Vessel 367, that the Foxtrot was disabled,
and directed him to conduct a routine patrol of the Bay. Id. at 3c.
Brewer advised Hansen that he and Hoover had donned life jackets but that
the Foxtrot was without anchor. After a further discussion about conditions
near the Foxtrot (interrupted several times because of another boat's transmissions),
Hansen learned that the Foxtrot was drifting toward shore. Based on that
information, Walker upgraded the Foxtrot's status to a distress case and
instructed McGraw to go pick up Brewer and Hoover. McGraw started preparing
Vessel 367 for departure six minutes and 40 seconds after Brewer and Hansen
first made radio contact. Pet. App. 4c.
One minute later, Hansen informed Brewer that a Coast Guard vessel was on
its way to his position. Hansen requested further information from Brewer
about the Foxtrot's location and about any medical problems that he or Hoover
was experiencing. Brewer advised Hansen that they had no medical problems
but that the waves were breaking right in front of the Foxtrot. At that
point, 12 minutes and four seconds after first making radio contact with
Brewer, Hansen issued an emergency message to all boaters. In that message,
Hansen described the Foxtrot's location, indicated it was disabled and drifting
toward shore, and asked all vessels to assist if possible. After a few minutes
communicating with other Coast Guard vessels about the Foxtrot, Hansen attempted
to reestablish contact with Brewer but was unable to do so. Pet. App. 5c.
McGraw's vessel left the Coast Guard dock 13 minutes and ten seconds after
radio contact was first made. About 17 minutes and 32 seconds after first
contact, McGraw radioed to Hansen that the Foxtrot had capsized on Del Monte
beach. Hoover was thrown clear of the boat when it capsized, but Brewer
was trapped underneath and drowned. Pet. App. 5c.
2. Petitioner filed the instant suit against the Coast Guard under the Suits
in Admiralty Act (SIAA), 46 U.S.C. 741 et seq.,1 and the Public Vessels
Act (PVA), 46 U.S.C. 781 et seq.,2 alleging that the Coast Guard negligently
failed to timely rescue Brewer. The district court granted summary judgment
for the government. Pet. App. 1c-15c. Observing that the SIAA and PVA grant
petitioner "no greater rights against the United States than she would
have against a private person under similar circumstances," id. at
7c, the district court analyzed whether the Coast Guard's conduct fell below
the standard for Good Samaritan rescuers established in Berg v. Chevron
USA, Inc., 759 F.2d 1425 (9th Cir. 1985).
Under Berg, a Good Samaritan may be held liable only if: (1) the rescuer's
conduct was negligent and that conduct worsened the position of the victim;
or (2) the rescuer engaged in reckless and wanton conduct while performing
the rescue. 759 F.2d at 1430. On the first Berg prong, the district court
found no evidence that the Coast Guard's conduct worsened Brewer's condition
and noted that petitioner presented no argument on that point. Pet. App.
9c. On the second Berg prong, the court observed that a finding of reckless
and wanton conduct requires a showing that the Coast Guard acted "intentionally
or with conscious disregard for a known or obvious risk of danger."
Id. at 11c. The court found no evidence that the Coast Guard acted in that
manner in this case. Acknowledging that "more tha[n] six minutes elapsed
between the time McGraw was directed to rescue Brewer and Hoover and when
the Coast Guard vessel left the dock," the court also noted the presence
in the record of "essentially uncontradicted evidence that this delay
of more than six minutes did not represent any uncommon or unusual amount
of time in launching the rescue vessel." Ibid. In light of that uncontroverted
evidence, the court held that such an interval "certainly did not represent
reckless and wanton conduct," id. at 11c-12c, and granted the government's
motion for summary judgment. Id. at 15c.
3. The court of appeals affirmed in an unpublished opinion. Pet. App. 1a-3a.
Applying Berg, the court held that the Coast Guard's conduct was neither
reckless nor wanton and did not worsen Brewer's position. Id. at 2a-3a.
While the court was willing to "assume that some of the delay in reaching
the [Foxtrot] and summoning ground emergency services is attributable to
negligence," it found "nothing in the record to support a finding
that the Coast Guard intentionally delayed the rescue or acted with a conscious
disregard for the risks involved." Id. at 2a. The court also declined
to "reexamine the scope of liability of the Coast Guard under established
federal law." Id. at 3a.
ARGUMENT
The decision of the court of appeals is correct and does not conflict with
any decision of this Court or any other court of appeals. This Court's review
is therefore not warranted.
1. Under the SIAA, the United States waives its sovereign immunity and subjects
itself to suit for the actions of its employees only in circumstances where
a private party would be subject to maritime tort liability for the same
conduct. See 46 U.S.C. 742 (1994 & Supp. III 1997) (permitting "any
appropriate nonjury proceeding in personam" in cases where "if
a private person or property were involved, a proceeding in admiralty could
be maintained."). The PVA, in turn, permits suits "in admiralty
* * * against the United States * * * for damages caused by a public vessel
of the United States," 46 U.S.C. 781, and provides that such suits
"shall be subject to and proceed in accordance with the provisions"
of the SIAA to the extent the SIAA is not inconsistent with the PVA. 46
U.S.C. 782. Accordingly, the SIAA and PVA together authorize suit against
the United States only for conduct during a maritime rescue that would yield
tort liability if undertaken by a private party.
As petitioner concedes (Pet. 12-17), a private party undertaking a maritime
rescue is subject to the Good Samaritan standard. See Berg, 759 F.2d at
1429-1430; Furka v. Great Lakes Dredge & Dock Co., 755 F.2d 1085, 1088
(4th Cir. 1985). Under that standard, "a rescuer will be held liable
only (1) for negligent conduct that worsens the position of the victim or
(2) for reckless and wanton conduct in performing the rescue." Berg,
759 F.2d at 1430. Recognizing that the SIAA and PVA subject the United States
to the same standard of care to which private parties are subject in like
circumstances, the district court properly applied the Good Samaritan standard
to the Coast Guard's actions in this case and concluded that there was no
record evidence to support a finding of liability. See Pet. App. 8c-15c.
Petitioner insists (Pet. 12-17) that the Good Samaritan standard should
apply only to private parties and not to the Coast Guard. Congress, however,
has specified that the government's liability under the SIAA and PVA shall
be the same as that "obtaining in like cases between private parties."
46 U.S.C. 743; see 46 U.S.C. 782 (PVA suits "shall be subject to and
proceed in accordance with" the requirements of the SIAA). Having acknowledged
(Pet. 12-17) that the Good Samaritan standard applies to private parties
undertaking maritime rescues, petitioner offers no reading of the controlling
statutes that would permit holding the Coast Guard to a different standard.
2. Contrary to petitioner's assertions (Pet. 6-8), the court of appeals'
unpublished opinion in this case does not conflict with the Fifth Circuit's
decision in United States v. Gavagan, 280 F.2d 319 (1960). In Gavagan, the
Fifth Circuit held the Coast Guard liable under the Federal Tort Claims
Act (FTCA), 28 U.S.C. 1346(b)(1) (1994 & Supp. IV 1998), 28 U.S.C. 2674
et seq., and the Death on the High Seas Act, 46 U.S.C. 761 et seq., for
the loss of a shrimp boat and its crew in a storm. Strictly speaking, therefore,
Gavagan involved statutory provisions not at issue in this case. Not until
1960, after the events at issue in Gavagan, did Congress make the SIAA the
sole remedy against the United States for maritime torts, and provide that
such suits could no longer be brought under the FTCA. See 28 U.S.C. 2680(d);
United States v. United Continental Tuna Corp., 425 U.S. 164, 172-177 &
n.14 (1976); Miller v. United States, 725 F.2d 1311, 1314 (11th Cir. 1984)
(discussing the amendment's impact on Gavagan's exercise of FTCA jurisdiction).
To the extent Gavagan's discussion of FTCA liability has some bearing here
since that statute, like the SIAA, incorporates standards of conduct applicable
to private parties, Gavagan is consistent with the court of appeals' decision
in this case. In Gavagan, the Fifth Circuit found the Coast Guard liable
"not for the failure * * * to reach a vessel in distress in time,"
280 F.2d at 321 (internal quotation marks omitted), but rather for the negligent
failure of the Coast Guard employees directing the rescue operation to pass
on and evaluate vital information concerning the location of the sinking
vessel. Id. at 321-325. While the Fifth Circuit did not focus its analysis
on the Good Samaritan standard, it did find that the facts in that case
"fully [met] the requirements of the Good Samaritan doctrine"
because the Coast Guard "'worsen[ed]' the plight of the [shrimp boat's]
crew members." Id. at 328 (quoting United States v. Lawter, 219 F.2d
559, 562 (5th Cir. 1955) (Coast Guard is liable when it places the victim
"in a worse position than when it took charge")). Because the
Fifth Circuit found the Coast Guard liable even under the Good Samaritan
standard, any difference in approach between that case and this case would
not lead to disparate outcomes.3
3. Petitioner is also mistaken in her contention (Pet. 8-11) that the court
of appeals' decision conflicts with other decisions of the Ninth Circuit.
Bunting v. United States, 884 F.2d 1143 (1989), did not address the appropriate
standard of conduct for the Coast Guard during maritime rescues. Rather,
that case involved a suit against the Coast Guard under the FTCA for medical
malpractice, in connection with emergency medical services rendered on land
by a Coast Guard physician. That distinction aside, the court in Bunting
held that the Coast Guard was entitled to the protection of the Alaskan
Good Samaritan statute and thus was not liable for less than gross negligence
in rendering emergency services, a standard similar to the one applied in
this case. See 884 F.2d at 1145-1147.4 Thus, Bunting is fully consistent
with the result here.
Similarly, there is no conflict with Huber v. United States, 838 F.2d 398
(9th Cir. 1988). That case arose out of the loss of a yacht in a storm off
the coast of California. The plaintiffs sued the United States and a private
party under the SIAA, and the defendants settled. The United States and
the private defendant then filed cross-claims for contribution, and it was
those claims that the Huber court addressed. See 838 F.2d at 399. In so
doing, the court did not reach any legal conclusion regarding the appropriate
standard of conduct for the Coast Guard under the SIAA.5
Even if the court of appeals' decision in this case were in tension with
other Ninth Circuit precedents, such intra-circuit conflicts are best resolved
by the court of appeals concerned and generally do not warrant this Court's
review. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) ("It
is primarily the task of a Court of Appeals to reconcile its internal difficulties.").
4. Assertions of conflict aside, petitioner incorrectly contends that the
Coast Guard was under a statutory obligation in this case to "perform
any and all acts necessary to rescue and aid persons and protect and save
property." Pet. 16 (quoting 14 U.S.C. 88(a)(1)). Petitioner omits the
opening clause of the statutory provision she cites, which makes clear that
the Coast Guard is permitted-not required-to undertake such rescues. See
14 U.S.C. 88(a) (providing that the Coast Guard "may" so act).
Moreover, the waiver of sovereign immunity contained in the SIAA does not
extend to suits challenging the Coast Guard's discretionary decisions regarding
whether to undertake a rescue in the first instance. As the Ninth Circuit
has explained, "the Coast Guard, because of its limited resources,
[can] not help all ships in distress, and [has] to make a policy judgment
to use its resources to help [a particular] ship. This decision [is] a protected
discretionary decision" and is not subject to challenge in a suit under
the SIAA or PVA. Arizona Maintenance Co. v. United States, 864 F.2d 1497,
1503 (9th Cir. 1989); see Good v. Ohio Edison Co., 149 F.3d 413, 418-419
(6th Cir. 1998) (United States retains its sovereign immunity under the
SIAA for "discretionary functions"); Cassens v. St. Louis River
Cruise Lines, Inc., 44 F.3d 508, 511 (7th Cir. 1995); Sea-Land Serv., Inc.
v. United States, 919 F.2d 888, 891 (3d Cir. 1990); In re Joint E. &
S. Dists. Asbestos Litig., 891 F.2d 31, 35 (2d Cir. 1989); Canadian Transp.
Co. v. United States, 663 F.2d 1081, 1085-1087 (D.C. Cir. 1980); Gercey
v. United States, 540 F.2d 536, 539 (1st Cir. 1976), cert. denied, 430 U.S.
954 (1977).
Accordingly, petitioner's references (Pet. 3, 7, 9) to the total elapsed
time between Hansen and Brewer's first radio contact and Brewer's ultimate
death are inapposite. The Coast Guard is subject to potential liability
only for its conduct in connection with a rescue attempt once it begins
to undertake that rescue. See Huber, 838 F.2d at 401 (observing that the
Coast Guard may not be held liable for its choice of "whether or how
to attempt to assist" a vessel in distress). In this case, the interval
between the Coast Guard's decision to attempt to help the Foxtrot and the
rescue vessel's departure from the Coast Guard dock was approximately six
and one-half minutes. Pet. App. 10c. Neither the district court's application
of the Good Samaritan standard to the Coast Guard's actions during that
interval nor its determination that the record contains no evidence capable
of supporting a finding of liability under that standard warrants further
review by this Court.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
ROBERT S. GREENSPAN
JOHN P. SCHNITKER
Attorneys
JUNE 2000
1 46 U.S.C. 742 (1994 & Supp. III 1997) permits "appropriate nonjury
proceeding[s] in personam * * * against the United States," in cases
where, "if a private person or property were involved, a proceeding
in admiralty could be maintained." Under 46 U.S.C. 743, the government's
liability for maritime torts under the SIAA is the same as that "obtaining
in like cases between private parties."
2 46 U.S.C. 781 permits suits "in admiralty * * * against the United
States * * * for damages caused by a public vessel of the United States."
Under 46 U.S.C. 782, suits brought pursuant to the PVA "shall be subject
to and proceed in accordance with the provisions" of the SIAA, to the
extent the SIAA is not inconsistent with the PVA.
3 Neither does the court of appeals' decision conflict with the Fifth Circuit's
decision in Coumou v. United States, 107 F.3d 290, amended 114 F.3d 64 (1997).
Coumou was not a maritime rescue case. Rather, the issue in that case was
whether the government breached a duty of care by failing to inform the
Haitian government that the captain of the drug-laden vessel it seized was
a government informant, thereby resulting in the captain's six-month incarceration
in a Haitian jail. In deciding that issue, the Coumou court had no occasion
to address the appropriate standard for assessing the Coast Guard's conduct
during maritime rescues.
4 The Alaska Good Samaritan statute eliminates civil liability for emergency
aid unless damages are the result of gross negligence, recklessness or intentional
misconduct. See Bunting, 884 F.2d at 1145-1147.
5 None of the other cases cited by petitioner involved alleged Coast Guard
negligence during a maritime rescue. Chaffin v. United States, 176 F.3d
1208 (9th Cir. 1999) (FTCA claim resulting from polar bear attack at remote
Air Force radar site in Alaska); Sutton v. Earles, 26 F.3d 903 (9th Cir.
1994) (SIAA claim arising from alleged negligence in failing to warn of
an obstruction to navigation); Eklof Marine Corp. v. United States, 762
F.2d 200 (2d Cir. 1985) (SIAA claim arising from alleged negligence in marking
obstruction to navigation); Olympia Sauna Compania Naviera, S.A. v. United
States, 670 F. Supp. 1498 (D. Or. 1987) (SIAA liability for negligently
implementing grid positioning project and mis-positioning a Coast Guard
buoy, causing a failure to warn mariners of navigational obstructions).