RESPONDENT: United States
DOCKET NO.: 8
DECIDED BY: Warren Court (1955-1956)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
REARGUED: Oct 13, 1955
DECIDED: Nov 21, 1955
ARGUED: Feb 10, 1955
Facts of the case
Media for Indian Towing Company, Inc. v. United States
Audio Transcription for Oral Reargument - October 13, 1955 in Indian Towing Company, Inc. v. United States
Number 8 on the Docket, Indian Towing Company, et al, versus United States of America.
Richard B. Montgomery:
May it please the Court.
The facts of this case are very simple.
The petitioner alleges that the failure of a light on Chandeleur Island in Louisiana on October 1st, 1951 was a cause of the grounding of a tug in Navajo.
The petitioner specifically alleges the negligence of one Chief Petty Officer, Stone.
This can best be set forth by the allegations of the petitions, which I will read to you.
The failure of the said light was due to the negligence of Chief Petty Officer Stone and other officers and members of the Coast Guard in charge of aids to navigation, and to the officers of the Coast Guard Cutter Salvia, who failed to properly check their light which works on a sun relay system, that they failed to check the -- the battery and the sun relay system which causes the light to go on.
And is alleged upon information and belief that there was a loose connection which could have been discovered upon proper inspection, that the said Coast Guard officers and other personnel of the Coast Guard on duty of this area had also failed to properly check the light, and to make any attempt to repair the same with due diligence or to notify marines using the light for navigation purposes.
The next allegation is.
The said Chief Petty Officer Stone did not, when he checked the lighthouse on September the 7th, 1951, properly checked the connections which were out in the weather.
No attempt was made to check the light to see whether it was operating properly between September the 7th and October the 1st, 1951, October the 1st being the date of the grounding.
And that therefore, the said grounding was due solely to the negligence of the Coast Guard in the maintenance and servicing of said light, and in say you to properly maintain the light or to notify that vessels of the said light was not functioning.
The Government filed a motion to dismiss on the ground that the Court did not have jurisdiction under the Federal Tort Claims Act.
The Court of Appeals on a per curiam decision, affirmed the judgment of the lower court, facing its -- its opinions squarely on the majority opinion in the case of Dalehite versus United States.
A writ of certiorari was granted, and as Your Honors know, this case was argued once before and is now on reargument.
It is our contention that this case comes squarely within the fair view of the Federal Tort Claims Act.
We alleged an individual act of negligence by a Coast Guard officer.
We do not come under any of the exceptions to the Act.
The exceptions to the Act as you know are any claim arising by reason of claimed negligence in a discretionary governmental function.
Any claim arising out of laws and miscarriage of letters, any claim arising in respect to the assessment of collections of taxes, any claims which are provided for under the Suits in Admiralty Act or the Public Vessels Act, any claim arising out of an admission of any employees of the Government under the Alien Acts, any claim for damages caused by the position or establishment of a quarantine, any claims for injuries while vessels are passing through the locks of the Panama Canal Zone, and the -- any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, desist or interference with contract rights, any claim for damages caused by the physical operations of the Treasury or by the regulation of the monetary system, any claim arising out of the combatant activities of the Military or Naval Forces or the Coast Guard during time of war.
Now, this is a Coast Guard which is specifically was a peacetime activity.
Any claim arising in a foreign country, and any claim arising from the activity of the Tennessee Valley Authority.
Now, in the beginning of this case, the Government relied on the fact that this was not a discretionary act.
I do not believe that the Government still sticks to that position.
In the first place, the establishment of the light would have been a discretionary governmental function.
If the head of the Coast Guard had decided that that light was not essential to navigation and ordered that light put out, I would have no case and I would not be before this Court.
If they had decided to destroy that light, I would have had no case, but that was not the case.
The Coast Guard thought that there was a necessity for that light to be there.
And the light was -- it is alleged that the light was made up immediately put back into use.