Rolando Olvera, United States District Judge.
Before the Court is the "Magistrate Judge's Report and Recommendation" ("R&R") (Docket No. 221) in the above-captioned case. This case arises from the death of Patricia Guadalupe Garcia Cervantes ("Cervantes"). See Docket No. 22. Francisco Ortega Garcia ("Plaintiff") filed this suit in several capacities: individually, as Cervantes's surviving spouse, successor to Cervantes's estate, and as next friend of V.S.O.G., Cervantes's minor child (collectively "Plaintiffs"). The R&R recommended the Court dismiss all of Plaintiffs' claims.
On the evening of April 23, 2015, Cervantes and Galindo Ruiz-Hernandez
The evening's weather conditions allowed for six-mile visibility. Thus, after scanning the water ahead of the Vessel and finding no ships or objects in the water, the USCG accelerated the Vessel to "come up to plane".
A federal court acts as a federal "common law court" when exercising admiralty jurisdiction. See Exxon Shipping Co. v. Baker, 554 U.S. 471, 507, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008). "In formulating federal maritime law, the federal courts may examine, among other sources, judicial opinions, legislation, treatises, and scholarly writings." Air and Liquid Systems Corp. v. DeVries, ___ U.S. ___, 139 S.Ct. 986, 992, 203 L.Ed.2d 373 (2019).
A maritime negligence claim requires: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached the duty, (3) the plaintiff sustained damages, and (4) the defendant's wrongful conduct caused the plaintiff's damages. Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005). Courts determine the threshold element of duty predominately by the "foreseeability of the harm suffered by the complaining party." Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987). A harm is foreseeable if "harm of a general sort to persons of a general class might have been anticipated by a reasonably thoughtful person, as a probable result" of a defendant's conduct. Id. at 68.
Plaintiffs failed to identify what duty the Government owed Cervantes—an undocumented alien ("UDA") swimming in the Channel at night trying to avoid detection. Although aware of the possibility that a UDA might use the Channel as a crossing point, before Cervantes, no USCG member interviewed by Plaintiffs had ever encountered a UDA swimming across the Channel at night. See Docket No. 112 Ex. 2 at 14. The Government did not owe Cervantes a duty unless the USCG had actual knowledge about the probability of hitting Cervantes as she swam across the Channel. See Republic of France v. United States, 290 F.2d 395, 401 (5th Cir. 1961).
Again, Ruiz-Hernandez was the smuggler trying to transport Cervantes across the Channel. Plaintiffs incorrectly rely on language in his case before the Fifth Circuit which states that "it was reasonably foreseeable that a person swimming across a high-traffic ship channel in the dark of night would be struck by a passing ship" to allege that the Government owed a duty to Cervantes. United States v. Ruiz-Hernandez, 890 F.3d 202, 211 (5th Cir. 2018); see also Docket No. 237 at 4. However, Ruiz-Hernandez did not contemplate foreseeability from the perspective of a boat navigating through a "high-traffic ship channel in the dark of night." See id. The Fifth Circuit's decision and above stated language was limited in scope to the foreseeability issue from the perspective of a human smuggler directing UDAs to swim across the "high traffic" Channel. See id. Thus, Ruiz-Hernandez does not apply here.
For these reasons, Plaintiffs failed to establish the Government owed Cervantes a duty and failed to allege prima facie claim of negligence. Thus, Plaintiffs' negligence-based claims against the Government warrant dismissal.
Plaintiffs claim both Safe Boats and Mercury Marine "had a duty to provide the [Government] with post-sale warnings
The Supreme Court and the Fifth Circuit apply Section 402A of the Restatement (Second) of Torts to maritime product liability cases, which requires the alleged harm came to the product's ultimate user or consumer. See Saratoga Fishing v. J.M. Martinac & Co., 520 U.S. 875, 879, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997); see also Vickers v. Chiles Drilling Co., 822 F.2d 535, 538 (5th Cir. 1987). Cervantes was neither a user nor a consumer of the Vessel manufactured by Safe Boats or the Vessel's three engines manufactured by Mercury Marine. See Restatement (Second) of Torts § 402A(1) cmt. 1 (Am. Law Inst. 1965). Instead, Cervantes's incidental contact with these products made her a "casual bystander" who lacks standing to bring a maritime product liability claim. See id. cmt. o ("Casual bystanders, and others who may come in contact with the product, as in the case of ... a passer-by injured by an exploding bottle, or a pedestrian hit by an automobile, have been denied recovery."). Thus, Plaintiffs' maritime product liability claims against Safe Boats and Mercury Marine warrant dismissal for lack of standing.
Recovery is available for wrongful death when tortious conduct caused the death of another person or legal entity. See, e.g., Restatement (Second) of Torts § 925, cmt. a (Am. Law Inst. 1965) ("a cause of action against the one who tortiously caused the death") (emphasis added). State statutes govern wrongful death actions where the decedent was a non-seafarer and the death occurred on navigable waters. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 215, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). Thus, Plaintiffs must establish Cervantes would have had a right to sue Defendants for injuries deriving from the incident had she lived. See Tex. Civ. Prac. & Rem. § 71.003. As a result of the Court's dismissal of the "underlying [tort] claims, Plaintiff failed" to adequately allege a wrongful death claim against Defendants. Green v. Toyota Motor Corp., No. 3:11-cv-0207-N, 2012 WL 13103033, at *4 (N.D. Tex. July 18, 2012). Thus, Plaintiffs' wrongful death claims against all Defendants warrant dismissal.
After a de novo review of the record, the Court
Ignacio Torteya, III, United States Magistrate Judge.
Pending before the Court are various motions filed by the parties seeking distinct types of relief. See Dkt. Nos. 109, 114, 115, 117, 118, 120. For the reasons provided below, it is recommended that: (1) Plaintiffs' products liability claims
This case is about the death of Patricia Guadalupe Garcia Cervantes (hereinafter, "Cervantes") on or about April 23, 2015. That night, Cervantes was swimming in the Brownsville Ship Channel (hereinafter, the "Channel") when she was struck by a United States Coast Guard Law Enforcement Vessel, the "CG 33124." Cervantes died following the impact. Her body was discovered the next day. On February 3, 2017, Francisco Ortega Garcia (hereinafter, "Garcia") filed this lawsuit individually, as the purported surviving spouse of Cervantes, as the purported successor to Cervantes' estate, and as next friend of his and Cervantes' minor child, V.S.O.G (hereinafter, collectively, the "Plaintiffs"). Initially, Plaintiffs only sued the United States (hereinafter, the "United States" or the "Government"). Plaintiffs subsequently added claims against Safe Boats International, LLC (hereinafter, "Safe Boats") and Mercury Marine, a division of Brunswick Corporation (hereinafter, "Mercury Marine"), to this civil action. Safe Boats produced the CG 33124—the vessel that struck Cervantes—pursuant to a contract with the United States. Mercury Marine manufactured the three engines, which included propellers, outfitted on the CG 33124 at the time of the incident. Plaintiffs bring a series of products liability claims, negligence claims, and wrongful death claims against the collective Defendants.
In August of 2006, the Government issued a Request for Quotation (hereinafter, the "RFQ") inviting businesses to bid on a contract to produce up to ninety-five vessels. Dkt. No. 109-3. A "Specification" was attached to the RFQ, setting out standards for the proposed vessel designs and providing information about the Government's needs in terms of minimum requirements and performance. Id. at 8-63. The RFQ and Specification were developed by various "stakeholder offices within the Coast Guard," including "a Naval architect," "somebody from electronics," "engineers," "boatswain's mates," and "the program office
Multiple bids were submitted in response to the RFQ and Specification, including a bid from Safe Boats. A "Technical Evaluation Team" from the Government, composed of the same stakeholders who drafted the RFQ and Specification, then evaluated the proposals. Dkt. No. 109-2 at 31-32. The Technical Evaluation Team memorialized its process in both a "Technical Evaluation Worksheet" and a "Technical Evaluation Report." Dkt. No. 109-2 at 32-40; Dkt. No. 109-6; Dkt. No. 109-7. The contract was awarded to Safe Boats, resulting in a "Blanket Purchasing Agreement" between Safe Boats and the Government. Dkt. No. 109-2 at 28-29. Once Safe Boats produced the contracted-for vessels and delivered them, the Government conducted acceptance trials. Dkt. No. 109-2 at 50; see also Dkt. No. 112-6 at 31-32 (describing the Government's conditions on acceptance of the vessels). The CG 33124 underwent these trials and was accepted. The Government determined that the CG 33124 complied with all terms of the Blanket Purchasing Agreement when Safe Boats delivered it. Dkt. No. 109-2 at 40, 47.
At the time the CG 33124 was transferred from Safe Boats to the Government, it was outfitted with three 275-horsepower engines. Dkt. No. 117-6 at 3. Those engines bore the following serial numbers: 1B465712, 1B460122, and 1B465707. Id. Some time after delivery of the CG 33124, those engines were replaced with three 300-horsepower engines, bearing the serial numbers: 1B968050, 1B979881, and 2B036644. Dkt. No. 117-3 at 2-4. The latter set of engines powered the CG 33124 on April 23, 2015. Id. The record does not indicate how or by whom the engines were replaced, except that Safe Boats avers it did not install the new engines. See Dkt. No. 120-2 at 2-3.
On the evening of April 23, 2015, four members of the Coast Guard (hereinafter, the "crew") embarked on a routine law enforcement patrol in the Channel aboard the CG 33124. Dkt. No. 117-4 at 1. The crew consisted of a certified coxswain, a break-in-coxswain, a boarding officer, and a crewmember. Id. at 5. That same evening, Cervantes and a man named Galdino Jose Ruiz-Hernandez were swimming in the Channel, attempting to enter the United States from Mexico without detection from law enforcement. Dkt. No. 125-1. They did not have any noise-making or illuminating equipment to alert others of their presence in the Channel.
As the crew was patrolling the Channel, the break-in-coxswain requested permission from the coxswain to bring the CG 33124 up onto plane.
After hearing the "thud," the break-in-coxswain stopped the vessel, doubled back toward where the impact occurred, and began searching in the water. Dkt. No. 117-4 at 8. Prior to coming up and throughout the search, the CG 33124's navigation lights were illuminated. Id. The coxswain utilized the vessel's spotlight to search the water. Id. Ultimately, the crew located a small pink innertube. Id. at 8-9. The boarding officer stated that "once [they] found the inner tube, it made sense that [the thud] was the sound like if you hit an inner tube." Id. at 61. The crew did not see any other objects, debris, or people in the water, and determined that the inner tube had caused the noise. Id. at 9, 53-54, 60-61. They continued conducting their routine patrol and returned to the Coast Guard Station on April 24, 2015, at approximately 12:40 a.m. Id. at 1. Upon their return, the crew reported the incident to officials within the Coast Guard, including showing their superior officers the inner tube. Id. at 10, 54.
Later that morning, at approximately 6:10 a.m., a Shrimp Basin complex security guard was approached by Ruiz-Hernandez, who reported seeing a body washed up along the north shore of the Channel. Dkt. No. 117-4 at 9. The guard conducted a search, but did not locate a body. Id. Ruiz-Hernandez did not accompany the guard on his search. Some time later that morning, the Port of Brownsville Police Department (hereinafter, the "PBPD") received an anonymous call about a body and its exact location on the shore of the Channel. Id. When the PBPD went to search for the body, Ruiz-Hernandez approached the officers to say he had made the call. Id. at 10-11. Ruiz-Hernandez stated he had been with the decedent, attempting to smuggle her into the United States, when she was struck by a vessel. Dkt. No. 142-4 at 9. Three days later, an autopsy was conducted, revealing that the injuries on the decedent's body were consistent with the shape of the CG 33124's propeller blades. Dkt. No. 117-4 at 10. The coroner determined that the decedent, Cervantes, "died nearly instantly because of the initial blunt force trauma and blood loss." Id. In the weeks and months after Cervantes' death, the Government conducted an investigation which was summarized in a Major Incident Investigation Report ("MII Report"). Dkt. No. 112-2. The MII Report was completed on July 14, 2015, and copies of it have been submitted to the Court. Dkt. Nos. 112-2, 117-4, 139-3, 142-4.
Since its inception, this lawsuit has been riddled with avoidable problems: failure of the parties to communicate or respond to one another,
Plaintiffs filed the instant action against the United States on February 3, 2017. Dkt. No. 1 (hereinafter, Plaintiffs' "Initial Complaint"). The Initial Complaint includes claims brought by Garcia in various capacities: (1) individually; (2) as Cervantes' surviving spouse; (3) as successor-in-interest to Cervantes' estate; and (4) as next friend of V.S.O.G.—his and Cervantes' child.
On June 18, 2018, Plaintiffs filed a "Motion for Leave to Amended (sic) Complaint" on grounds that Plaintiffs had "additional facts to add to [their] Complaint." Dkt. No. 74. The Court granted leave (Dkt. No. 83), and Plaintiffs' "Second Amended Complaint" (Dkt. No. 84) was filed on July 6, 2018. In response, the United States filed a Motion to Dismiss, primarily arguing that it had not waived sovereign immunity for the claims that Plaintiffs brought against it. Dkt. No. 109. Safe Boats has filed multiple motions seeking summary judgment on specific issues. See Dkt. No. 114 (Punitive Damages); Dkt. No. 115 (Garcia's Lack of Standing); Dkt. Nos. 117, 118 (Proximate Cause); Dkt. No. 120 (Government Contractor Defense). Mercury Marine has joined Safe Boats' Motion for Summary Judgment on Proximate Cause. See Dkt. No. 119.
From the outset of this case, there has been disagreement between the parties over the jurisdictional bases of Plaintiffs' claims. In their Initial Complaint, Plaintiffs invoked both the Federal Tort Claims Act ("FTCA") and, alternatively, the Suits in Admiralty Act ("SIAA") as possible bases for subject-matter jurisdiction. Dkt. No. 1 at 2-3 (citing 28 U.S.C. §§ 1346(b), 2671-80 and 46 U.S.C. §§ 30901-13, respectively). Then, in their First Amended Complaint, Plaintiffs added 28 U.S.C. § 1332 (a)(1) as yet another basis for subject-matter jurisdiction. Dkt. No. 28 at 3. In their Second Amended Complaint, Plaintiffs again cite the FTCA, the SIAA, and diversity of citizenship as three separate bases for subject-matter jurisdiction. Dkt. No. 84 at 3 (citing 28 U.S.C. §§ 1346(b), 2671-80; 46 U.S.C. §§ 30901-13; and 28 U.S.C. § 1332(a)(1), respectively).
Due to the consequences of designating a case as an admiralty proceeding, the Court ordered each party to file an advisory addressing whether the Court's admiralty jurisdiction had been invoked on any or all of Plaintiffs' claims. Dkt. No. 130. Each party complied. See Dkt. Nos. 134, 136, 137, 138. The United States and Mercury Marine both advised the Court that the claims made against each of them were brought pursuant to the Court's admiralty jurisdiction. See Dkt. No. 134 at 2; Dkt. No. 137 at 3. Plaintiffs also informed the Court that they were "electing to bring this suit under admiralty." Dkt. No. 138 at 5. Safe Boats, however, took the "position that Plaintiff[s] clearly elected not to proceed against Safe Boats in admiralty." Dkt. No. 136 at 7.
Whether a case or claim proceeds in admiralty depends in part on whether the plaintiff properly designated the action as such. "There are special procedures for invoking the admiralty jurisdiction of a federal district court," and those procedures are set forth in Rule 9(h) of the Federal Rules of Civil Procedure. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1547 (5th Cir. 1991); FED. R. CIV. P. 9(h). That rule states:
FED. R. CIV. P. 9(h).
Rule 9(h) identifies two types of admiralty cases: (1) those that fall exclusively under admiralty jurisdiction; and (2) those that fall under admiralty jurisdiction as well as under some other form of federal subject-matter jurisdiction. In the first category, the plaintiff need not make an explicit statement invoking admiralty jurisdiction.
In the second type of case, the issue is "how specific a party must be in identifying an admiralty claim in a complaint when that party is pleading alternative theories of subject matter jurisdiction." Foulk v. Donjon Marine Co., Inc., 144 F.3d 252, 256 (3d Cir. 1998). Although the preferred method of making an admiralty election is explicit reference to Rule 9(h), the absence of such language is not dispositive. See Teal v. Eagle Fleet, Inc., 933 F.2d 341, 345 (5th Cir. 1991) (noting the "preferred technique is to expressly invoke Rule 9(h)," but that in the Fifth Circuit, "a party need not make a specific reference to Rule 9(h) in order to fall under ... admiralty jurisdiction"); see also Borque v. D. Huston Charter Servs., Inc., 525 F.Supp.2d 843 (S.D. Tex. 2007). Rather, whether a complaint sufficiently invokes admiralty jurisdiction is evaluated based on the totality of the circumstances,
Here, the Court is called upon to consider all relevant circumstances to determine whether Plaintiffs have shown an intent to proceed in admiralty or at law. "One important factor in determining whether a claimant has elected to proceed in admiralty is whether he demanded a jury trial." Concordia, 115 F.3d at 72 (citations omitted). Whether such a demand was made is probative because a plaintiff who has invoked admiralty jurisdiction is not entitled to a jury trial. See FED. R. CIV. P. 38(e); Concordia, 115 F.3d at 70-71; Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1054 (9th Cir. 1997). Courts interpret the absence of a demand for a jury trial as support that a plaintiff with an admiralty claim intends to proceed under admiralty jurisdiction rather than at law. See Rachal v. Ingram Corp., 795 F.2d 1210 (5th Cir. 1986) (finding that the initial complaint with a Jones Act claim and a jury demand was an election to proceed at law; however, the amended complaint, which omitted the jury demand, properly invoked admiralty jurisdiction). Plaintiffs here did not include a jury demand in any of their three Complaints. See Dkt. Nos. 1, 28, 84. While not dispositive, this absence of a jury demand evinces Plaintiffs' intention to proceed in admiralty.
Plaintiffs' Advisory regarding their desire to proceed in admiralty (Dkt. No. 138) is also probative. Although Plaintiffs' Advisory alone is not determinative of whether the case proceeds in admiralty or at law, the Court accords due weight to the clear manifestation of their intent. The Court finds that the Plaintiffs did intend to proceed in admiralty, and will address the jurisdictional bases for Plaintiffs' claims, although not in the order presented.
The United States is immune from suit unless it has waived its sovereign immunity, thereby consenting to be sued. See, e.g., United States v. Thompson, 98 U.S. 486, 489, 25 S.Ct. 194 (1878). Absent an express waiver of sovereign immunity, federal courts lack subject-matter jurisdiction over suits against the United States. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 S.Ct. 1058 (1941).
The PVA allows civil, in personam admiralty actions to be brought against the United States for "damages caused by a public vessel of the United States." 46 U.S.C. § 31102(a)(1). A vessel that is owned and operated by the Government falls squarely within the scope of the PVA. See Pascua v. Astrocielo Neptunea Armandora, S.A., 614 F.Supp. 984, 985 (S.D. Tex. 1985); Helgesen v. United States, 275 F.Supp. 789 (S.D.N.Y. 1966). The PVA applies whether the alleged tortious acts were committed by crewmembers or the vessel itself. Pascua, 614 F. Supp. at 985; Motors Ins. Co. v. United States, 239 F.Supp. 121 (S.D.N.Y. 1965); Page v. United States, 105 F.Supp. 99 (E.D. La. 1952); The Roah Hook, 64 F.Supp. 288 (E.D.N.Y. 1945). Suits brought under the PVA are "subject to the provisions of [the SIAA] except to the extent inconsistent with" the PVA. 46 U.S.C. § 31103.
A federal court's authority to hear admiralty cases is rooted in the Constitution, which "extend[s]" federal judicial power "to all Cases of admiralty and maritime Jurisdiction." U.S. CONST., art. III, § 2. Congress reiterated that authority in a statute giving federal district courts "original jurisdiction ... of ... [a]ny civil case of admiralty or maritime jurisdiction[.]" 28 U.S.C. § 1333(1). A party seeking to invoke federal admiralty jurisdiction over a tort claim pursuant to 28 U.S.C. § 1333(1) must demonstrate that the alleged tortious activity: (1) occurred on navigable water, or the injury suffered on land was caused by a vessel on navigable water; and (2) bears a connection with maritime activity. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed. 2d 1024 (1995); see also Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed. 2d 292 (1990).
In the instant case, the locality element of the test for admiralty jurisdiction is satisfied. The incident underlying this suit—the death of Cervantes—took place on navigable water. Further, the instrumentality that caused her death—the CG 33124—was on navigable water at the time of the incident. See Ayers v. United States, 277 F.3d 821 (6th Cir. 2002) (finding admiralty jurisdiction where the improper operation of a lock caused the drowning death of a swimmer, because both the swimmer and the lock were on navigable water).
The connection element has two components. First, a court must "assess the general features of the type of incident involved" to determine whether the incident has "a potentially disruptive impact on maritime commerce." Sisson, 497 U.S. at 362-63, 110 S.Ct. 2892. Second, a court must consider whether "the general character" of the "activity giving rise to the incident" shows a "substantial relationship to traditional maritime activity." Id. at 365, 110 S.Ct. 2892.
Here, the "type of incident" underlying Plaintiffs' suit is a death which occurred as a result of a collision between a mechanically-powered vessel and a swimmer in a commercial ship channel, along an international maritime border. So characterized, the incident clearly has the potential to affect maritime commerce. In general, rescue and recovery efforts result from this type of incident. Where, as here, the rescue and recovery would occur on a highly trafficked ship channel, near a boat ramp, on an international maritime border, commercial activity may experience significant interruption.
Courts next consider whether the alleged tortious activity was substantially related to traditional maritime activity. Grubart, 513 U.S. at 539, 115 S.Ct. 1043. Plaintiffs' claims sounding in products liability satisfy this component of the connection test. For claims with a less-than-obvious connection to traditional maritime activity, the Fifth Circuit considers four factors to determine whether this component is satisfied: (1) the functions and roles of the parties, (2) the types of vehicles and instrumentalities involved, (3) the causation and type of injury, and (4) traditional concepts of the role of admiralty law. Kelly v. Smith, 485 F.2d 520, 525 (5th Cir. 1973), cert. denied, 416 U.S. 969, 94 S.Ct. 1991, 40 L.Ed. 2d 558 (1974).
Applying those four factors to Plaintiffs' claims purportedly brought against Mercury Marine and Safe Boats, they clearly fall under this Court's admiralty jurisdiction. Mercury Marine and Safe Boats are both involved in producing, designing, and/or manufacturing vessels for maritime activity. Additionally, the instrumentalities which collided with Cervantes—the CG 33124 and the three 300horsepower engines' propellers—are of a maritime character. Cervantes' injuries and the alleged cause of those injuries are both related to maritime activity. The fourth and final Kelly factor requires courts to balance "the national interest in uniformity of the law governing the care and safety of those engaged in maritime service" against "the demands of federalism and the interest in preventing the displacement of state law where similar claims have traditionally been relegated to local resolution." Woessner v. Johns-Manville Sales Corp., 757 F.2d 634, 643 (5th Cir. 1985). The overriding concern of the maritime law is the federal interest in uniformly developed laws regarding maritime industry, and the manner that vessels may properly move upon navigable waters. See Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed. 2d 454 (1972); see also Foremost Insurance Co. v. Richardson, 457 U.S. 668, 677, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). The instant case implicates these uniquely federal interests. Taken together, the four Kelly factors support a
"With admiralty jurisdiction comes the application of substantive admiralty law." East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed. 2d 865 (1986). Pursuant to the Preemption Clause of the Constitution, federal law preempts any conflicting state law. U.S. CONST., art. VI, cl. 2. The Supreme Court has explicitly allowed for the application of state law when it serves to supplement, but not contravene, the general maritime law, and the state law fills a gap therein. See, e.g., Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed. 2d 578 (1996). There are limits, however; a state law may not supplement the general maritime law where the state law: (1) conflicts with an applicable law of Congress, (2) materially prejudices a characteristic feature of the general maritime law, or (3) interferes with the proper harmony and uniformity of the general maritime law in its international and interstate relations. Southern Pacific Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 61 S.Ct. 1086 (1917).
General maritime law is "`an amalgam of traditional common-law rules, modifications of those rules, and newly created rules,' drawn from both state and federal sources." Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 878, 117 S.Ct. 1783, 138 L.Ed. 2d 76 (1997) (citing East River S.S. Corp., 476 U.S. at 865, 106 S.Ct. 2295). Even though maritime suits are governed by federal substantive and procedural law, courts may adopt state law by either express or implied reference when state law does not conflict with federal law. Palestina v. Fernandez, 701 F.2d 438, 439 (5th Cir. 1983).
The Supreme Court and the Fifth Circuit apply Section 402A of the Restatement (Second) of Torts to maritime products liability cases. See Saratoga Fishing, 520 U.S. at 879, 117 S.Ct. 1783; see also Vickers v. Chiles Drilling Co., 822 F.2d 535 (5th Cir. 1987) (applying § 402A to a design defect claim). Negligence is also an actionable wrong under the general maritime law. See Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005) (internal citations omitted). The elements of a maritime negligence cause of action are essentially the same as those for non-admiralty negligence claims under the common law. Id. Those elements are: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the plaintiff sustained damages, and (4) the defendant's wrongful conduct caused the plaintiff's damages. Id.; see also In re Great Lakes Dredge & Dock Co., LLC, 624 F.3d 201, 211 (5th Cir. 2010) (internal citations omitted). With these principles in mind, the Court now turns to the substance of Plaintiffs' claims for relief.
One set of claims that Plaintiffs bring relate to the design and sale of the CG 33124. They contend that the CG 33124 was defective because of forward visibility obstructions when the boat came up on to plane and the lack of a propeller guard. Dkt. No. 84 at 10, 13. Plaintiffs also contend that both Mercury Marine and Safe Boats had a duty to warn the United States about these alleged defects. Id. at 11-12, 14-15. Plaintiffs purport to bring these claims against Mercury Marine and Safe Boats, since they manufactured the engine/propeller and produced the vessel, respectively. However, there are myriad
As noted above, Section 402A of the Restatement (Second) of Torts provides the standard for these causes of action. That Section provides:
RESTATEMENT (SECOND) OF TORTS § 402A (AM. LAW INST. 1965).
The most glaring issue in the instant case is that sellers and manufacturers are only liable for defective products that cause physical harm to the "ultimate user or consumer." Critically, Cervantes does not fall into either of these categories. She is more properly categorized as a "casual bystander" or an individual whose contact with the product(s) was incidental. Comments 1 and o to § 402A explicitly state that products liability has not been expanded to cover these categories of injured parties. See RESTATEMENT (SECOND) OF TORTS § 402A cmt. l, cmt. o (Am. LAW INST. 1965) ("Casual bystanders, and others who may come in contact with the product, as in the case of ... a passer-by injured by an exploding bottle, or a pedestrian hit by an automobile, have been denied recovery."). Plaintiffs do not cite to a single case in the general maritime law, and the Court has uncovered none, that permits a non-user or non-consumer to recover on products liability grounds.
Even if Cervantes were somehow determined to be a "user or consumer," the claims would fail because the United States has not waived subject-matter jurisdiction for such claims. Although Plaintiffs purport to bring these claims against Safe Boats and Mercury Marine, it is clear the boats were constructed and delivered pursuant to a government contract. It is the decisions of the United States—as documented in the RFQ, the Specification, and the acceptance trials—that are at the heart of the Plaintiffs' products liability claims.
Although the SIAA and the PVA—the statutes which provide jurisdiction over the United States for this suit—do not contain any express exceptions to the waiver of sovereign immunity, the FTCA does contain an express exception with respect to claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). This express exception, commonly referred to as the "discretionary function exemption," has been incorporated into the SIAA and PVA. See Wiggins v. United States, 799 F.2d 962, 964 (5th Cir. 1986); Gemp v. United States, 684 F.2d 404 (6th Cir. 1982); Estate of Callas v. United States, 682 F.2d 613, 619-20 (7th Cir. 1982); Canadian Transport Co. v. United States, 663 F.2d 1081, 1085-86 (D.C. Cir. 1980); Chute v. United States, 610 F.2d 7 (1st Cir. 1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2155, 64 L.Ed. 2d 789 (1980). Thus, even though Plaintiffs' claims against it are brought pursuant to the SIAA and the PVA, the United States has not waived its sovereign immunity if the discretionary function exception applies.
Here, the Government exercised discretion during the design and acquisition process, pursuant to which CG 33124 was built. Government stakeholders spent months developing, vetting, and finalizing the RFQ and Specification. Dkt. No. 109-2 at 10-12. That same group of stakeholders conducted an extensive review process, and accepted Safe Boats' bid, resulting in the execution of the Blanket Purchasing Agreement. After the contracted-for vessels were built, the Government tested them to ensure compliance at the time of delivery. Plaintiffs have not cited a single limitation on the Government's discretion at any of these decision points, nor are any such limitations revealed in the record. These procedures exemplify the sort of decision-making process that requires the "exercise of authority."
Each of the aforementioned Government decisions was also "susceptible to policy analysis" because of their relation to military strategy, effectiveness, and preparedness. It has long been recognized that military design decisions fall squarely within the discretionary function exemption. See, e.g., Boyle v. United Techs. Corp., 487 U.S. 500, 511, 108 S.Ct. 2510, 101 L.Ed. 2d 442 (1988) (reasoning that "the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function" because these decisions involve "judgment as to the balancing of many technical, military, and even social considerations" such as "the trade-off between greater safety and greater combat effectiveness").
A. Claims Against the United States for Acts/Omissions of the Coast Guard Crew
Plaintiffs bring a set of claims alleging that the Coast Guard crew's negligent conduct resulted in Cervantes' death.
The existence of a "duty" and to whom that duty is owed are both questions of law. In re Great Lakes, 624 F.3d at 211. Whether the defendant owes a duty to the plaintiff "depends on a variety of factors, `most notably the foreseeability of the harm suffered by the complaining party.'" Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 377 (5th Cir. 2000) (quoting Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987)). Said differently, duty "is measured by the scope of the risk that negligent conduct foreseeably entails." Cansol. Aluminum, 833 F.2d at 67 (quoting Harper, James & Grey, The Law of Torts, Scope of Duty in Negligence Cases § 18.2 at 655 (2d ed. 1986)). In the context of maritime torts, the Fifth Circuit has defined the concept of foreseeability as follows:
Consol. Aluminum, 833 F.2d at 68.
Here, Plaintiffs have failed to allege a prima facie case of negligence against the United States in two respects. First, although they have amended their complaint twice during the more-than two years that this case has been pending, Plaintiffs have failed to identify what duty the crew owed Cervantes. The only attempt Plaintiffs make to meet this prima facie burden is to state that the "crew had a duty ... to not cause personal injury or death by their own wrongful or negligent acts or omissions." Dkt. No. 84 at 9. Plaintiffs add that the "crew further had a duty to act with due care, including, but not limited to,
Second, even if Plaintiffs had identified a legal duty, they have not shown that Cervantes was in the class of persons to whom that duty would be owed. Under the principles of negligence law, "a tortfeasor is accountable only to those to whom a duty is owed." Consol. Aluminum, 833 F.2d at 67. "The critical inquiry is the foreseeability of the injury to" the injured party.
In sum, Plaintiffs have failed to allege even a prima facie case of negligence at this late stage of their lawsuit. Plaintiffs do not allege that the presence of swimmers in the Channel in the middle of the night was foreseeable, nor do they identify the existence of a specific duty that the crew violated. Without such allegations, and with unrefuted evidence to the contrary in the record (Dkt. No. 112-4), Plaintiffs' negligence claims against the United States should be dismissed.
B. Claims Against Mercury Marine and Safe Boats
Plaintiffs also bring claims against Mercury Marine and Safe Boats for alleged "failure to warn/inadequate instructions or warnings." In their. Second Amended Complaint, Plaintiffs contend that both Mercury Marine and Safe Boats "had a duty to provide the [Government] with post-sale warnings and instructions and failed to do so." Dkt. No. 84 at 12, 15. In maritime failure-to-warn cases, as in
Plaintiffs also bring wrongful death claims against the United States, Mercury Marine, and Safe Boats. Dkt. No. 84 at 9, 16. Wrongful death actions provide recovery where the death was caused by the tortious conduct of another person or legal entity. See, e.g., RESTATEMENT (SECOND) OF TORTS § 925, cmt. a (AM. LAW INST. 1965) (explaining that the American common-law action for "wrongful death" derives from the English tradition, which provides "a cause of action against the one who tortionsly caused the death") (emphasis added); accord Wrongful death, WOLTERS KLUWER BOUVIER LAW DICTIONARY (2012). Where, as here, Plaintiffs have not adequately alleged a cause of action for any underlying tortious conduct, they cannot maintain an action for wrongful death. See TEX. Civ. PRAC. & REM. § 71.003 (stating that wrongful death actions can be brought "only if the individual injured would have been entitled to bring an action for the injury if the individual had lived"); see also Yamaha Motor Corp., 516 U.S. at 215, 116 S.Ct. 619 (holding that state statutes govern wrongful death actions where the decedent was a non-seafarer and the death occurred on navigable waters). Plaintiffs have failed to demonstrate that Cervantes would have had a cause of action had she survived; these claims, then, are subject to dismissal.
For the reasons stated above, it is recommended that:
It is further recommended that the Clerk of Court be directed to close this case.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en bane), superseded by statute on other grounds; 28 U.S.C. § 636(b)(1).
