Coast Guard Immune from Suit in Shark Attack Death

Taghadomi v. U.S., 401 F.3d 1080 (9th Cir. 2005).

Danny Davis, 3L, University of Mississippi School of Law

The Ninth Circuit recently dismissed a lawsuit against the Coast Guard following a shark attack because the plaintiffs could not file suit under the Public Vessels Act (PVA), the Suits in Admiralty Act (SAA), or the Federal Tort Claims Act (FTCA).

Background
While kayaking in Maui, Monazzami Taghadomi, a U.S. resident, and his wife, Nahid, an Iranian citizen, lost control of their kayak due to high winds and waves. Nahid fell overboard, was attacked by a shark and died. Monazzami was rescued three days later and spent several days in the hospital. While the couple was struggling with the kayak, a witness on land contacted the Coast Guard in Maui to inform it of the couple’s distress. Twenty minutes later the Maui office called the Coast Guard’s Operations Center, which directed a Coast Guard cutter to conduct a search and rescue mission. Nightfall prevented the Coast Guard from conducting more than a brief search.

Monazzami, along with Nahid’s family, filed suit against the kayak rental company and later added the Coast Guard. The Coast Guard was left as the only defendant when the plaintiffs settled with the rental company. The plaintiffs brought the claims against the Coast Guard under the FTCA, alleging that the Coast Guard was negligent in its rescue mission and its failure to contact local authorities with access to better rescue equipment. The district court granted summary judgment in favor of the Coast Guard because the claims were not allowed under the FTCA.

Federal Immunity
A claim may be brought against the U.S. only if the U.S. has waived its sovereign immunity. The Ninth Circuit determined that none of the three immunity-waiving statutes relevant to this case, the PVA, SAA, or the FTCA, were applicable. The PVA and SAA waive immunity in some maritime suits. Some non-maritime claims can be asserted under the FTCA. A tort falls within the admiralty jurisdiction of the federal courts if the tort occurred on or over navigable waters (the “locality test”) and it bears a significant relationship to traditional maritime activity (the “relationship test”).1

The plaintiffs asserted that their claims do not fall under admiralty jurisdiction because they fail both tests; therefore they appropriately brought suit under the FTCA. First, the plaintiffs argued that the tort did not pass the “locality test” because the tort occurred on land. The plaintiffs argued that the alleged negligence by the Coast Guard was a failure by the land-based Operations Center to contact local authorities with access to better rescue equipment. Secondly, the plaintiffs argued that the tort did not pass the “relationship test” because the activity was purely recreational in nature, not commercial.

The court disagreed with the plaintiffs’ argument that the tort claims failed both tests. The court stated that the “locality” of the tort is where the injury occurred, in this case on navigable waters. The court also concluded that the tort met the “relationship test.” A court must ask two questions to determine if there is a “significant relationship to traditional maritime activity.” The first inquiry is whether the incident would have a potentially disruptive impact on maritime commerce. Even though the activity was recreational in nature, the kayak accident gave rise to an activity by the Coast Guard. The court stated that negligent search and rescue could disrupt maritime commerce.

The second question is whether the “general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.”2 The court again looked not only at the activity of the plaintiffs, but also the activity of the Coast Guard. The court stated that a search-and-rescue mission carried out by the Coast Guard most assuredly does have a substantial relationship to maritime activity.

Interaction of PVA, SAA, and FTCA
After determining that both claims, failure to communicate and negligent search and rescue, were maritime in nature, the court stated that the claim could not be brought under the FTCA because the act is not applicable to maritime claims that can be brought under either the PVA or the SAA.3

Under the PVA, the U.S. is liable for torts where the “damage is caused by a public vessel of the United States.”4 Public vessels are vessels owned and operated by the U.S. in a public manner. The court determined that the plaintiffs’ claim of negligent search and rescue fell under the PVA because the alleged negligent act occurred on a Coast Guard cutter. Nahid’s parents, however, are barred from bringing a claim under the PVA because of a reciprocity clause that “permits foreign nationals to sue the U.S. government only if their country of nationality would permit a similar suit by a U.S. citizen.”5 Because U.S. citizens could not bring a suit similar to the plaintiff’s in Iran, the parents’ claim is barred.

The plaintiffs argued, however, that even if the non-citizen claims are barred under the PVA, the claims could still be brought under the FTCA or the SAA because those statutes do not have a reciprocity clause. The court disagreed, stating that a non-citizen could not escape the reciprocity clause of the PVA by bringing the claim under another act. As for the U.S. plaintiffs, their claims were time-barred because the statute of limitations had lapsed.

The plaintiffs’ failure to communicate claim did not involve a public vessel and therefore fell within the SAA. Unfortunately for the plaintiffs their claim was still barred, despite the SAA’s lack of a reciprocity clause, because the statute’s two-year statute of limitations had expired.

Conclusion
The court upheld the summary judgment ruling by the district court. The court stated that the claims could not have been brought under the FTCA because the FTCA does not apply to maritime claims. Nor could the claims be brought under the PVA or SAA because the statute of limitations had run for both.

Endnotes
1. Taghadomi v. U.S., 401 F.3d 1080, 1084 (9th Cir. 2005).
2. Id. at 1086.
3. The FTCA does not apply to “any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States.” (28 U.S.C. § 2680(d), referring to the PVA and SAA).
4. 46 U.S.C. App. § 781.
5. Taghadomi, 401 F.3d at 1083.