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WATER LOG 2006
VOL. 26:3
Cranford, from page 5
erwise impenetrable shield of the federal government, the Eleventh Circuit warned future plaintiffs against becoming overly optimistic about their chances of prevailing on claims brought against the U.S. because “the waivers [in both the SAA and PVA] are subject to the discretionary function exception of the Federal Tort Claims Act.”6
Applying the first step of the Gaubert test, the court quickly concluded that the Coast Guard’s marking of the wreck “involved elements of judgment or choice.”12 After reviewing applicable statutes, regulations, and internal guidelines, the court noted the “broad discretion [that the Coast Guard had been given] in deciding how to mark a wreck.”13 More importantly, the court noted the plaintiffs’ “fail[ure] to The Discretionary Function Exception identify ‘a federal statute, regulation, or policy [that] The discretionary function exception seeks to “prevent specifically prescribe[d] a course of action embodying judicial ‘second-guessing’ of legislative and administra- a fixed or readily ascertainable standard.’”14 tive decisions grounded in social, economic, and politThe court appeared willing to accept an argument 7 ical policy through the medium of an action in tort.” that the Coast Guard failed to ground its decision in In U.S. v. Gaubert the Supreme Court “‘developed a considerations of public policy; however, the plaintiffs two-step test to determine whether the government’s advanced an ineffective argument that the Coast Guard conduct meets the discretionary function exception.’”8 had considered nothing more than the financial impliFirst, courts are required to “consider . . . whether the cations of its decision. Although the court agreed with conduct involves ‘an element of judgment or choice.’”9 the plaintiffs that “[f ]inancial considerations alone may If the government adhered to “‘a federal statute, regula- not make a decision one involving policy,”15 it found tion, or policy specifically prescrib[ing] a course of the government’s argument more persuasive. The govaction embodying a fixed or readily ascertainable stan- ernment admitted that the Coast Guard had “evaludard,’”10 the conduct will be afforded the protection of at[ed] . . . resource constraints,” but it also argued that sovereign immunity because the Coast Guard considered it did not involve an element both “the knowledge and cusof judgment or choice. If not, toms of international mathe conduct still remains eliriners” and the competing gible for protection if it pass“needs of pleasure and comes the second step of the mercial watercraft.”16 Be c a u s e t h e C o a s t Gaubert test: if the conduct Guard’s marking of the Fort that involved an element of Morgan Wreck satisfied both judgment or choice “is the first and second steps of grounded in considerations 11 the Gaubert test, the court of public policy,” then the court must find that the confound that the Coast Guard Photograph of sunken wreck courtesy of the United States duct remains safely protected had not waived its immunity. Environmental Protection Agency. from attack behind the shield of sovereign immunity. The Decision Not to Remove the Wreck Cranford and the Melechs also contended that the The Marking of the Wreck Coast Guard waived its immunity by failing to remove Cranford and the Melechs first argued that the Coast the Fort Morgan Wreck because, they claimed, the Guard should be held liable based on its marking of the decision failed the first step of the Gaubert test. Fort Morgan Wreck. In addition to their belief that the Pointing to a federal statute that “specifically preCoast Guard had acted negligently by designating the scribe[d] a course of action embodying a fixed or readwreck with only one marker, the plaintiffs also faulted ily ascertainable standard,” the plaintiffs argued that the Coast Guard for its careless placement of that mark- the Coast Guard’s decision not to remove the wreck er. Undisputed evidence indicated that the Coast involved an impermissible “element of judgment or Guard had initially “plac[ed] the marker 164 feet away choice.”17 The plaintiffs argued that section 409 of the from the wreck” and had never moved the marker clos- Wreck Act “impose[d] a nondiscretionary duty on the er to the wreck despite numerous reports of collisions government to remove the . . . [w]reck” because of its prohibition against obstructing waters and the with the wreck over the years.