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Is It True That I Can’t Sue the Coast Guard?

Last year, I was involved in a boating accident when I hit an unlit channel marker buoy in San Diego Bay. I wasn’t going very fast, but unfortunately one of my passengers was injured when she was thrown forward by the impact. She filed a lawsuit against me and, since I was uninsured at the time, she is going after my boat as compensation for her injuries. I spoke to my lawyer about the possibility of bringing the Coast Guard into the lawsuit on the theory that they should not have used an unlit buoy at that location, but he said that the federal government is immune from civil lawsuits. Is he correct?

Yes and no. Our reader probably won’t be able to pursue the Coast Guard in his lawsuit, but not for the reason cited by his attorney.

Our reader’s attorney is referring to the doctrine of “sovereign immunity,” which protects a sovereign government from lawsuits arising from government action or inaction. Under this doctrine, the United States, as sovereign, is immune from suit unless it waives its sovereign immunity and consents to be sued. Without such a waiver, the only avenue of relief for victims of government wrongdoing would be via congressional enactment of a private bill. Good luck with that.

The good news is that the United States has enacted several statutes that provide such a waiver of immunity. The most significant of these is the Federal Tort Claims Act (“FTCA”). The FTCA was enacted in 1946 to allow civil lawsuits against the United States for claims involving property damage, personal injury or death caused by the negligent or wrongful acts or omissions of federal employees acting within the scope of their employment.

The FTCA is the broadest waiver of immunity, but it does not apply to lawsuits, such as our reader’s litigation, that fall within admiralty jurisdiction. For those cases, we must look to the Suits in Admiralty Act (SIAA).

The SIAA was enacted in 1920, prior to the FTCA, but its scope was limited to provide a waiver of immunity only when a government-owned ship was involved in the incident. The original language of the SIAA therefore would not have waived immunity for a case such as our reader’s, which did not involve a government-owned vessel.

In 1960, Congress expanded the Suits in Admiralty Act to include all maritime claims against the United States. The statute encompasses any action against the United States that would have been maintainable in admiralty “if a private person or property were involved” (see 46 U.S. Code §30903).

It would appear, therefore, that the U.S. government has waived immunity for a lawsuit such as the case described by our reader. But … surprise: There are exceptions to the exception.

In fact, the FTCA and the SIAA both have a long list of exceptions. The government does not waive its immunity lightly, and the facts of each specific case need to be examined to determine whether a lawsuit against the federal government will be allowed to proceed.

In our reader’s case, he will probably need to address the “discretionary function exception” to the waiver of immunity. The scope of this exception is defined under the FTCA to bar any claim that is 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 — even if the specific decision is alleged to be an abuse of that discretion. The courts have held that the discretionary function exception to the FTCA applies in the same manner to the SIAA.

So, with all of this dry legal analysis, how do we know that the government will probably be immune from suit in our reader’s case? A review of a tragic accident in 1984 will provide the answer.

Southern Californians may remember an accident in Huntington Harbour in 1984, in which a ski boat hit an unlit mooring buoy inside the breakwater at a high rate of speed. Five of the nine people aboard the boat were killed.

The buoy was owned and maintained by the U.S. Navy as a part of the Seal Beach Naval Weapons Station, and the Navy was brought into the lawsuit under the theory that the buoy should have had a light on it. However, the Ninth Circuit Court of Appeals held in that case that the decision to light or not light the buoy fell within the discretion of the Coast Guard — and, as such, the government was immune from the lawsuit (the case was Earles vs. United States, decided by the court in 1991).

The bottom line under this exception, and in our reader’s case, is that the courts will not allow people to drag the government into a lawsuit by second-guessing every little decision made by the government. However, as noted above, these cases are entirely dependent upon the specific details of the case.

Lawsuits against the government — whether we are looking at federal, state or local agencies — are very complicated, in terms of both substantive law and procedural rules. Even if the claim is not barred by the doctrine of sovereign immunity, these rules often include a requirement to make a formal claim against the government within a very short period after the incident and prior to filing suit. Meet with an experienced attorney to discuss your options.

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