Opinion
CASE NO. 16-CV-10013-JLK
08-31-2016
Robert E DUEITT, Jr., Plaintiff, v. UNITED STATES of America and United States Coast Guard, Defendants.
Jason Robert Margulies, Lipcon Margulies, Alsina & Winkleman, P.A., One Biscayne Tower, Suite 1776, 2 S. Biscayne Boulevard, Miami, FL 33131, 305-373-3016, Fax: 305-373-6204, Email: crewlawyer@aol.com Carol Lynn Finklehoffe, Lipcon Margulies Alsina & Winkleman, PA, One Biscayne Tower, Suite 1776, 2 South Biscayne Blvd, Miami, FL 33131, United Sta, 305-373-3016, Fax: 305-373-6204, Email: cfinklehoffe@lipcon.com, Carlos Felipe Llinas Negret Law Offices of Lipcon, Margulies & Alsina P.A., 2 South Biscayne Boulevard, One Biscayne Tower, Suite 1776, Miami, FL 33131, (305) 373 3016, Fax: (305) 373 6204, Email: cllinas@lipcon.com Michael W. Kerns, United States Department of Justice, Torts Branch, Civil Division, PO Box 14271, Washington, DC 20044-4271, 202-616-4020, Email: michael.kerns@usdoj.gov Jesse Houck, U.S. Department of Justice, P.O. Box 14271, Washington, DC 20044, 202-616-4035, Email: jesse.l.houck@usdoj.gov
Jason Robert Margulies, Lipcon Margulies, Alsina & Winkleman, P.A., One Biscayne Tower, Suite 1776, 2 S. Biscayne Boulevard, Miami, FL 33131, 305-373-3016, Fax: 305-373-6204, Email: crewlawyer@aol.com
Carol Lynn Finklehoffe, Lipcon Margulies Alsina & Winkleman, PA, One Biscayne Tower, Suite 1776, 2 South Biscayne Blvd, Miami, FL 33131, United Sta, 305-373-3016, Fax: 305-373-6204, Email: cfinklehoffe@lipcon.com, Carlos Felipe Llinas Negret Law Offices of Lipcon, Margulies & Alsina P.A., 2 South Biscayne Boulevard, One Biscayne Tower, Suite 1776, Miami, FL 33131, (305) 373 3016, Fax: (305) 373 6204, Email: cllinas@lipcon.com
Michael W. Kerns, United States Department of Justice, Torts Branch, Civil Division, PO Box 14271, Washington, DC 20044-4271, 202-616-4020, Email: michael.kerns@usdoj.gov
Jesse Houck, U.S. Department of Justice, P.O. Box 14271, Washington, DC 20044, 202-616-4035, Email: jesse.l.houck@usdoj.gov
ORDER TRANSFERRING CASE TO EASTERN DISTRICT OF NORTH CAROLINA
HONORABLE JAMES LAWRENCE KING, UNITED STATES DISTRICT JUDGE
This matter came before the Court upon Defendants' Motion to Dismiss or Transfer Venue (DE 12). Plaintiff commenced this action on March 31, 2015 against Defendants seeking relief for injuries he sustained on November 23, 2014. DE 1. Plaintiff alleges jurisdiction under the Suits in Admiralty Act ("SAA"), 46 U.S.C. § 30901 (2012)et seq., the Public Vessels Act ("PVA"), 46 U.S.C. §§ 31101 et seq., and alternatively, the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 (2012)et seq. Defendants' Motion argues the PVA controls this case, and, as such, venue is improper with this Court.
Factual Background
On the evening of November 23, 2014, Plaintiff was working aboard the S/V Kinsail. While transiting in the Intracoastal Waterway near Tyrrell County, North Carolina, the vessel ran aground. DE 1 at ¶¶ 13-15. Plaintiff contacted the United States Coast Guard for assistance. Id. at ¶ 17. Coast Guard Station Elizabeth City dispatched a 29-foot search and rescue vessel, CG-29207, to assist Plaintiff. Id. at ¶ 18. The crewmembers onboard CG-29207 attempted to pass a towline from their vessel to the Kinsail by attaching the towline to a weighted ball and then tossing the towline to Plaintiff. Id. at ¶ 20. During an attempt to toss towline, Plaintiff was temporarily blinded by a spotlight onboard CG-29207 and the weighted ball stuck Plaintiff in the face, breaking his eye socket and nose. Id. at ¶¶ 19-20.
On March 31, 2016, Plaintiff commenced this action against the United States in this Court, alleging that the Coast Guard's negligence caused Plaintiff's injuries. Id. at ¶¶ 46-50. Defendants responded by filing a Motion to Dismiss or Transfer Venue (DE 12) pursuant to Fed. R. Civ. P. 12(b)(3) arguing that under the PVA venue is improper in this District.
Discussion
The PVA provides that a "civil action under this chapter [46 U.S.C. §§ 31101 et seq. ] shall be brought in the district court of the United States for the district in which the vessel or cargo is found within the United States" 46 U.S.C. § 31104(a) (2012). A public vessel is "found" in the district in which the vessel is physically present at the time of filing the complaint. Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 221 , 65 S.Ct. 639, 89 L.Ed. 901 (1945) . Only if a vessel is beyond the territorial waters of the United States is a plaintiff able to bring the action in the district in which he or she resides. 46 U.S.C. § 31104(b).
In support of their motion, Defendants presented the Declaration of Boatswain's Mate Chief Petty Officer Steve J. Christy, the Officer in Charge of Coast Guard Station Elizabeth City, North Carolina, which states "CG-29207 is wholly owned and operated by the United States Coast Guard. On March 31, 2016, CG-29207 was located at Station Elizabeth City, whose address is 1664 Weeksville Road, Elizabeth City, North Carolina 27909." DE 12-2. Plaintiff does not dispute that CG-29207 is a public vessel of the United States, or that it was located in Elizabeth City, North Carolina on March 31, 2016. However, Plaintiff asserts that the SAA, rather than the PVA, governs this case.
The United States may only be sued in strict conformity with the conditions by which it has waived its sovereign immunity from suit. Hercules Inc. v. United States, 516 U.S. 417, 422, 116 S.Ct. 981, 134 L.Ed.2d 47 (1996) ; United States v. Sherwood, 312 U.S. 584, 586–87, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) ; Zelaya v. United States, 781 F.3d 1315, 1321–22 (11th Cir.2015). The SAA and PVA act as waivers of the sovereign immunity of the United States in admiralty cases. Trautman v. Buck Steber, Inc., 693 F.2d 440, 443–44 (5th Cir.1982)
The SAA provides that "[i]n a case in which, if a vessel were privately owned or operated, or if cargo were privately owned or possessed, or if a private person or property were involved, a civil action in admiralty could be maintained, a civil action in admiralty in personam may be brought against the United States or a federally-owned corporation." 46 U.S.C. § 30903. The PVA provides that an action in admiralty may be brought against the United States for "damages caused by a public vessel of the United States." Id. § 31102(a). The SAA and the PVA appear to overlap, as both govern admiralty claims brought against the United States involving public vessels. Marine Coatings of Ala. v. United States, 71 F.3d 1558, 1560–61 (11th Cir.1996) ; see also United States v. United Cont'l Tuna Corp., 425 U.S. 164, 181, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976).
The PVA applies to cases where "the negligence of the personnel in the operation of the ship ," or the ship itself, causes the damage. Canadian Aviator , 324 U.S. at 224, 65 S.Ct. 639 (emphasis added). Defendants submit that the actions of the crewmembers onboard CG-29207 were in the operation of the ship, and therefore Plaintiff may file suit only under the PVA. Plaintiff argues that the actions of the crewmembers onboard CG-29207 were not in the operation of the vessel, and therefore, suit under the SAA is appropriate.
The Supreme Court "has never clearly described what claims actually fall under the Public Vessels Act; in fact, it has explicitly refused to do so" Marine Coatings of Ala., 71 F.3d at 1562. The Eleventh Circuit Court of Appeals concluded that "[w]e are left, then, primarily with Canadian Aviator and American Stevedores to help us determine" when a claim may fall under the PVA. Id. at 1563. In Canadian Aviator, the owners of a private vessel were able to bring suit under the PVA for damages caused to their vessel after it was directed to follow astern of a public vessel while entering a waterway, and in doing so, struck a submerged object. See Canadian Aviator, 324 U.S. at 217, 229, 65 S.Ct. 639. In American Stevedores, a longshoreman was able to bring suit under the PVA after he sustained injuries while loading a public vessel moored to a pier. See Am. Stevedores, Inc. v. Porello, 330 U.S. 446, 454, 67 S.Ct. 847, 91 L.Ed. 1011 (1947). While the Marine Coatings court ultimately concluded that a suit for the recovery of damages under a maritime repair lien was not a claim authorized by the provisions of the PVA, but rather the SAA, the case is instructive because it provides guidance for distinguishing PVA claims from SAA claims. See Marine Coatings of Ala., 71 F.3d at 1558.
Additional cases provide examples of the types of claims covered by the PVA or the SAA. See, e.g., Justice v. United States, 6 F.3d 1474 (11th Cir.1993) (a claim under the PVA was permitted where plaintiff fell down a stairway onboard a public vessel, alleging the crew was negligent in allowing a dog onboard); Mid-S. Holding Co. v. United States, 225 F.3d 1201, 1203 (11th Cir.2000) (where Customs Service and Coast Guard personnel conducted joint-boarding of commercial fishing vessel docked at pier, there was no public vessel involved in search, and therefore, SAA applied rather than PVA); Taghadomi v. United States, 401 F.3d 1080, 1088–90 (9th Cir.2005) (where kayakers claimed that Coast Guard was negligent in carrying out rescue operation and failing to contact local authorities who had better rescue equipment, negligent rescue claim involved a public vessel and therefore, PVA applied to it; failure-to-communicate claim involved Coast Guard personnel on land and therefore, SAA applied to it); Uralde v. United States, 614 F.3d 1282 (11th Cir.2010) (decisions made by Coast Guard personnel onboard private vessel under interdiction concerning whether and how to provide medical treatment to passengers on board private vessel were distinct from the operation of a public vessel and therefore, the PVA did not apply).
Under the facts alleged by Plaintiff in the present case, this Court finds that the PVA must control. The Coast Guard personnel who responded to the call for help did so in the execution of their duties. The key act identified by the Plaintiff, the throwing of the towline, was carried out by a Coast Guard crewmember onboard CG-29207 to initiate the process of towing the Kinsail off the shoal upon which it had run aground. Plaintiff's negligence claims stem from an action that occurred from Coast Guard personnel's operation of equipment onboard a public vessel. Therefore, because Plaintiff does not dispute the public vessel status of CG-29207, or the location of the vessel on the date of filing this action, this Court finds the proper venue for this action is the Eastern District of North Carolina.
It is hereby ORDERED , ADJUDGED , and DECREED :
1. Defendant United States of America's Motion to Dismiss or Transfer Venue (DE 12) be, and the same is, hereby GRANTED and this matter is TRANSFERRED to the United States District Court for the Eastern District of North Carolina; and
2. the Clerk of Court for the Southern District of Florida is hereby DIRECTED to TRANSFER the docket and record of the above-styled action to the Clerk of Court for the United States District Court for the Eastern District of North Carolina.
DONE and ORDERED in chambers in the James Lawrence King Federal Justice Building and United States Courthouse in Miami, Florida this 31st day August, 2016.