Indian Towing Company, Inc. v. United States

PETITIONER:Indian Towing Company, Inc.
RESPONDENT:United States
LOCATION:

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

Question

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

Earl Warren:

Number 8 on the Docket, Indian Towing Company, et al, versus United States of America.

Mr. Montgomery.

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.

Richard B. Montgomery:

It is clear, therefore, that we do not come under that part of the Dalehite majority opinion, which based this — the dismissal of the Texas City claims upon a discretionary government function.

It is to be noted that continuously throughout that opinion, the majority of this honorable Court says that there was no individual act of negligence alleged as Honor Justice Reed said that’s specifically and particularly in that decision.

Therefore, this case is clearly distinguishable from that case on that ground.

Furthermore, it seems to us that nowhere in the Act do we come under the very important exception, which is exception A in 1680 wherein it says, “No — no official of the Government enforcing the law which — whether the law be constitutional or not, or whether the discretionary function shall be guilty of such fault as to allow a suit against the United States Government.”

It doesn’t see — it is impossible to say, “We submit, with all due respect, that this could be considered in any sense of discretionary function.”

This man’s duty, this Coast Guard man’s duty was to do one thing and one thing alone.

He was out — sent out there to check that light and see that it would work properly.

The Court has to accept the allegations that he did not do this.

The Court has to accept the allegations of negligence on a motion to dismiss.

We therefore say that we have made out a case in which there is the negligence of a member of the crew of a Coast Guard Cutter, an employee of the United States of America, acting in due course of his business that it is an act of — of admission but the Act specifically provides for damages in case of an omission.

So, we say that insofar as the question of discretion is concerned, we definitely come under the Act.

The next question, which has been raised by the Government in defense of this, in — in argument of it is that this is the ultimate end of a government function.

The — the very learned counsel for the Government says that I will not come to grips with his argument.

Well, I can find nowhere in the Act or anywhere else in the opinions, in the Feres opinion, or in the opinion of the Dalehite case where any such defense or words are used.

I have read and reread, and when of course when you use a negative, you can always possibly be proven to be wrong.

What I have read and reread, the Feres opinion and the Dalehite opinion, and I find no such saying that there wouldn’t be liability in case the damage was caused by the ultimate function in which the negligence happened.

That is his argument.

That although negligence of the Coast Guard Cutter in going out there would be actionable, because the ultimate function of the lighthouse service was to set out — up a lighthouse.

There’s no negligence or negligence — I’ll rather put it this way.

That damage caused by the failure of that ultimate service caused by that negligence of an individual is not actionable.

He has taken certain decisions of state courts wherein they talked about governmental functions and applied this to the Federal Tort Claims Act, although, there is nothing in the Act which emanate such.

If it had been the intention of Congress to make that an exception to the — to the types of claims, which are actionable, they could’ve put it in their exceptions.

They could’ve said that where the function itself causes the — the damage, they put in every other thing and to show that Congress did not mean that, that Congress thought that under the other provisions of the Act that there was a claims for damages.

They specifically exempted damage to the mail, and if there ever is, the function — an ultimate function is the delivery of the mail.

But I always understood that the proper interpretation of a statute was if they wrote in exceptions and didn’t — and left out one thing, then that was an — then that was considered as not being accepted.

In this particular case, they could, as I say, they could have vary easily when they talked about the Coast Guard and accepted the failure of a light, but they didn’t.

And the reason for use of the governmental functions, words or of the phrase comes up in many of the cases involved in municipalities.

Counsel tries to make these cases proved that the Federal Tort Claims Act excluded in a decision, which are not deciding for the decision, but for a very learned statement by Justice Gray of this Court, the case is Workman versus Mayor of New York, 179 U.S.552, which is not in my brief.

I only discovered this dissenting opinion recently since I’ve been in Washington.

In that case, a fire tug ran into a vessel on the way to the fire.

Richard B. Montgomery:

Chief Justice White decided the case.

The question was.

Was there a real liability?

Chief — although the State of New York held that fire — that — that damages arising from fire were not actionable, he held that they were under the General Maritime Law, so the case has no — has no bearing as I see it on this case.

When both Chief Justice —

Felix Frankfurter:

It has — it has a bearing on the sense of conviction of the Government that there is a great (Inaudible) conviction question, fundamental of execution of question, in some aspect and in some other aspect.

Richard B. Montgomery:

Well, sir, I was coming to what they said about that.

Felix Frankfurter:

Well, whatever it is, there’s nothing in itself.

Suppose that decision is out of the window, the original motion.

Richard B. Montgomery:

Well, that could be so because he — but he put it on General Maritime Law but he said that very definitely, there — there would be liability if the proper statute was enforced.

And that —

Felix Frankfurter:

The Maritime Law does recognizes (Inaudible)

Richard B. Montgomery:

No, the decision was really that they couldn’t — the Maritime Law that the Maritime Law governs —

Felix Frankfurter:

I know but the Maritime Law is becoming the largest, most (Inaudible)

Richard B. Montgomery:

That’s right, sir.

Felix Frankfurter:

(Inaudible) there is no question —

Richard B. Montgomery:

That’s right, sir.

That’s absolutely correct, sir, 179 U.S.552, decided by Chief Justice White.

He said that the law of New York did not govern in that case, because he could not, more than Maritime Law, which has been made.

But he went on to say in that case that the — the distinction between cases where the municipalities could be liable for failure to maintain bridges, and failure to proper repair streets, and fire had and — and the Fire Department’s work was that the Fire Department’s work was really a function of the State Government.

Now, although it was delegated to the municipality, it was a function of the Government.

And since the State had not authorized suit against it, you could not sue a municipality for something, which inherently belonged to all the people.

But he said, “That was what was known as a governmental function for that reason, but did as to everything else in municipality did as for instance in repairing streets, maintaining bridges that that they could be sued for, because although it was a function of the municipality, it was a municipal function.”

And that is — and last time I argued this case, as Honor Judge Frankfurter asked me how I could distinguish the various cases of the States, involving stoplights.

Well, I now think that the distinction is this, there are many States that now hold that stop lights or the failure to operate a stop light properly comes — is actionable against the municipality.

The ones who — who do not fail to distinguish that the operation of the stoplights are not part of the police work of the city.

The Police Department falls in the same category as Justice Gray says about the Fire Department, and the New York and Illinois make that distinction.

They — and in the New York case particularly, the — the stoplights are not operated in the State by the Police Department, but by an authority which is given the — given the duty of operating those stoplights.

Now, going back to this case, the Coast Guard was not operating in time of war.

The operation of that light was not operating as part of its duty of being an active combatant unit.

Richard B. Montgomery:

It was operating it solely as a governmental agency.

And therefore, the fact that the light went out does not — and did the damage instead of the officer individually doing the damage, does not come under any restriction or exemptions under the Federal Tort Claims Act.

What have you got to say about the Government’s reliance on the clause?

It says that the liability must be composed only under such circumstances where the United States with private person would be liable.

Richard B. Montgomery:

I’m going to come to that simply because that comes in my opinion under his argument on what is novel.

A novel cause of action and that comes under the Feres case it seems to me, more than it does to Dalehite case.

Now, in the Dalehite case, in my opinion, I don’t — the question of the negligence in the fire, if I may proceed and then take up your point sir, in — in which followed right into the course of my argument, fire fighting has, since the time of Henry VIII been considered as an exception to all other rules.

As many of the authorities say, when — where — there can never be any liability imposed when it — as a result of fire fighting, a negligence in fire fighting because of the fact that that is for the benefit of all the people, and it has to be done instantaneously and decisions have to be made.

Of course, in my opinion, you could — that — that is the one great exception to all rules and has been held so through all English authority.

Felix Frankfurter:

Would you mind telling me what proposition would fall under your argument, it seems to me the general question, and this isn’t your first argument (Inaudible)

Richard B. Montgomery:

To the — to the fact that there — to the Government’s contention that they — because the light was the ultimate end of a government service, there could be no liability to people, damages caused by it.

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

Well, sir —

Felix Frankfurter:

— anybody else can conclude, not only the judge why the statute is prohibited from (Inaudible)

Richard B. Montgomery:

Sir, I agree thoroughly with what — what you say.

I don’t — I don’t —

Felix Frankfurter:

I can’t understand you.

Richard B. Montgomery:

Sir?

Felix Frankfurter:

I can’t understand you.

Richard B. Montgomery:

Well, I don’t understand his argument either, sir, but I’m trying to show that there can’t possibly be any such exception in the Tort Claims Act or any — or any failure to have a cause of action for the — for the light going out.

I could —

Felix Frankfurter:

Why do you — why do you tend to admit bar by talking about what is government and what is not government in government function?

Richard B. Montgomery:

Well, sir, I’m more like —

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

Sir?

Felix Frankfurter:

Are there two types of category —

Richard B. Montgomery:

Well, the —

Felix Frankfurter:

— in general of Government (Inaudible)

Richard B. Montgomery:

In the last — in the last discussion before this honorable Court, that was one of the important arguments, and that is, if I have to bring — it seems to me that I carry the burden after thinking that over of showing to Your Honors that this comes under the Tort Claims Act, that I cannot leave it up to him in his defense, that it is my duty to show that this type of — of disaster, this type of damage definitely comes under this battled Tort Claims Act.

And he has made the point that was made before and I was merely anticipating it.

Richard B. Montgomery:

Maybe that is bad, a bad way to argue my case, but Your Honor, remember this is the second time and I have yet — I yet do not know what the decisions, what the reasons for any of the decisions that I’m arguing against were based on.

Felix Frankfurter:

I understand, I understand (Inaudible) and nobody else does it —

Richard B. Montgomery:

Well —

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

But — but he has also argued strenuously the other point, which I’m — I was trying to take up because I think they fade into each other.

It could be that I have — have put my — I should have thought it was the noble point and then go on into this, but — but it seemed to me that the question of the whether or not I had a claim, came first.

Well, to get to he point —

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

Well, I — may I ask you if I have made my reasons for arguing this question of the end result?

Felix Frankfurter:

I’m merely suggesting —

Richard B. Montgomery:

Yes sir.

Felix Frankfurter:

— you’re going to have to a (Inaudible) determined whether the Government (Inaudible)

Richard B. Montgomery:

I think that —

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

No, sir, I was merely going to suggest.

You asked me the last time, sir, of what I thought was the distinction.

Well, I think there’s a distinction between the good cases and the bad legally.

[Laughs]

Felix Frankfurter:

(Inaudible)

Hugo L. Black:

(Inaudible)

Richard B. Montgomery:

The ones that are against me, sir.

[Laughter]

May it please the Court to go on.

The next argument is —

That is separated — against separate officers (Inaudible)

Richard B. Montgomery:

Yes, sir.

(Inaudible)

Richard B. Montgomery:

You would —

(Inaudible)

Richard B. Montgomery:

Sir, if — I believe and submitted to — to place to rely that it was not discretionary, then you relied — it was a discretionary act.

(Inaudible)

Richard B. Montgomery:

The next question.

Yes, sir, I think I can — I think I can — I may — I think I can.

That’s the best I could say when you get into this, this line of argument.

Sometimes, it — it comes like the admiralty law, when — when is it admiralty and when it — when it isn’t as you get to the dividing line that is very difficult to — to elucidate.

(Inaudible)

Richard B. Montgomery:

Well, sir, I believe that —

(Inaudible)

Richard B. Montgomery:

Well, it is — it is my —

Not — not because it is a thing as I understand it, but because (Inaudible)

Richard B. Montgomery:

Well — well, the — the Feres case went off on two points.

One, that — that under the section which was quoted by Justice Harlan, there could be no recovery where they had been no remedy before.

The — the Justice Jackson will dissent it in the — in the Dalehite case.

He said that he knew of no instance, even among the militia, even where between the State and the militia that a cause of action had ever been allowed of this — of that type.

He went on to say that no one could ever raise conscript or — or have an army, that therefore, there was no such remedy and that it was not the intention of the — of the Act to create a remedy when none had existed before.

Judge Holmes to the Fifth Circuit describes it as a unique remedy, a unique right of action, which has never been existed before.

Now, I say that that applies also to fire fighting, whether by the Coast Guard or the forest rangers because it has been universally held that no such right ever existed against anyone.

But I say that this is not that type of case, that in the Government’s own brief, they show that there are over 3,300 private beacons, lights and other aids to navigation.

After all, a light is nothing but an aid to a navigation.

There are many private aids to navigation, and the Act itself by which the Government regulates aids to navigation, and lighthouses, they say that private ones can be authorized.

Now, there’s no question, and no one — I don’t believe will deny that if for instance on a railroad bridge, they had a red light with a — a green light when it should’ve been red, that there would be a cause of action in common law thought against the railroad company.

He specifically shows in his brief, original brief that they allowed aids to navigation in channels, which are used by corporations for there own vessels.

Supposed, by reason of an error, in the marking, the vessel went on ground and a seaman was injured, the seaman most certainly could sue the corporation for his failure to properly mark.

It has been held that if you have a right and it’s not properly marked.

Now.

Well, do you — I don’t quite understand your position.

Do you agree with the Government that in order to bring yourself within the Tort Claims Act that you must show there’s a comparable private activity?

Richard B. Montgomery:

No, I merely — but I have to show in order to get around the various case that it would not be a novel cause of action to sue for the failure of obedience.

I do not or I like, I do not believe as I said in my opening argument that there’s anything sacred about this light, about the Government operating the light and that there have been causes of action since time immemorial for the failure of the properly maintained lights so that this is not a novel action.

This not an unusual action like there would be in the Feres case, and like there would be in — in the case — the Dalehite case.

Richard B. Montgomery:

I am not saying to you, I agree with Justice Jackson of course, in which he said there is liability.

There was the intention of this Act to grant liability, to create liability.

And then, he thought that he did not contend that it should be confined to Automobile Act in cases in those sorts of things.

He believed that even the — the so-called discretionary act was such Act as to make the Government liable in that case, and he — and Justice Frankfurter and Justice Black discerned it.

I am — I thought in my argument, by trying to show that in my opinion, this came squarely under the Act.

I’m trying to distinguish those two cases.

My case from those two cases, I — I say that as a matter of fact, Your Honor, although the Americans — in America, you did not have private lighthouses, because they didn’t have cooperation at the time this country was established, who could handle lighthouses.

England had private lighthouses up to 1860.

The — the Encyclopedia Britannica and the work by Hardy on the history of lighthouses showed that they had private lighthouses and that the Corporation of Trinity was a private corporation and operated all the lighthouses in — in England.

And in the case of Gilbert versus Corporation of Trinity House, Queens’ Bench, Vol.XVII, 1866, at page 795, the Courts says, “In no uncertain terms,” that when they operated those lighthouses, there was a duty under the common law to maintain them.

That’s not in my brief, sir.

I just found that yesterday morning.

There was duty to maintain them, the failure to properly maintain them.

He gave a cause of action.

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

Yes, sir, and they were not only Trinity House light who operated the lights, but other private corporations operated the lights.

So that I say that, this was never a unique government function.

It was never a governmental function in the sense that there wasn’t an ordinary common law remedy for the operation of aids to navigation.

I say the date that in America, private — private operated aids to navigation where there are definitely actions for negligence.

This cannot be considered, analogous to fire fighting or analogous to the case of Feres.

I say that as — as far as this case is concerned, it falls outside the category completely of those two cases.

I say that furthermore, it falls within the opinion of the — dissenting opinion of Justice Jackson.

And I say that I cannot see how he can say, “I cannot see where it comes under any possible exception to the Act,” because there — if what — what he is saying, what the Government is saying is that because — because the United States took over the light.

And therefore, that there was no Tort Claims Act, no one could sue that it followed ipso facto that there was no — that there is no such cause of action in existence, and therefore, is a novel cause of action.

He says this that the Government couldn’t be sued in America.

It therefore follows that there is no cause of action known to the law.

And that I am trying to create a new cause of action.

I say, as cause of action at common law, there’s causes of action against any private individual.

And therefore, this is not a novel cause of action.

It is not a unique governmental function.

Richard B. Montgomery:

As a matter of actual knowledge and fact, it is only a — a governmental function, because the Government took the oath.

In other words, if the Government decided to operate the switch or run the signals on railroads because of safety measures, then, once they took it over, then there could be no cause of action.

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

That’s correct, sir.

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

That’s correct, and I say that a — that a — that you cannot possibly say that there is — that this is a novel cause of action.

This is a cause of action which — many, many causes of action against private people operating beacons and aids to navigation, and I don’t understand why a lighthouse stands in a — and apart all by itself.

The Government also, unless it grants you permission, operates the boards, operates other aids to navigation.

They grant permission under the statute.

And so, why should a light, just because the Government decided that not let anybody else operate a lighthouse, why that stands sacred, after all, it’s nothing more than aids and navigation, sir?

Do you think it’s open under the Feres and Dalehite cases to argue that all this clause means is that assuming that this is a solely governmental function with the United States’ liability is not to be judged on any other standards or any other basis than those of a private individual, if private individuals had engaged in this business?

Richard B. Montgomery:

I believe that, sir.

I think that that is the — you — you have put my argument — as I’ve been trying to put it much better.

I say that that — that all that means is that if private individuals could engage or how to get engage in it, or do engage in it, I won’t be allowed to engage in it.

Well, my question was whether the argument is still open under the Feres and Dalehite?

Richard B. Montgomery:

It certainly is.

Under the Feres case, yes sir, I think so.

I definitely think so because the Feres case goes off on the point that nowhere in the history of the world had there ever been such a cause of action even considered, and he says that even been as Mr. Justice Jackson says there’s even — the only case on it decided that they could never be such a cause of action.

And that therefore, specifically, the United States — that Congress should’ve specifically authorized such a cause of action.

But each one of those two cases, sir, the Dalehite case and the Feres case involved other things beside this specific point.

In the — in the Feres case, Justice Jackson said that Congress could not have meant for a soldier to have a cause of action because of this type, because they were under the Tort Claims Act, because there were other legislations which took care of the soldiers and which were in conflict with this, and which were more benefit to the soldier than this would be, and that if Congress intended — if Congress intended that a soldier should come under this Act under those circumstances, they would have said so.

Harold Burton:

Let me ask you a question that you have been diverted from your final argument.

Put your attention back to the post office situation.

Suppose the Post Office, through its negligent act, failed to deliver to an addressee an important letter, and the addressee was damaged thereby, would he recover from the Government?

Richard B. Montgomery:

No, sir.

Harold Burton:

He couldn’t?

Richard B. Montgomery:

Yes.

Harold Burton:

Then, of course, if the — if the Post Office is driving its truck on the street and hits a child, it can recover?

Richard B. Montgomery:

Yes sir.

Harold Burton:

Well, now, let’s analogize that to this situation here.

Harold Burton:

The Government has this light, and if anybody had been — been damaged in the operation of — of that light, that is the person for whom it was — it was set up to guide and direct, there couldn’t have been any recovery?

Richard B. Montgomery:

Well, sir, I don’t think —

Harold Burton:

But now then, if the — if this person, who was going out to service the light and had been driving a truck had run over a child and hurt it, the Government will be liable.

But, when — when somebody is injured with the service who was intended for, that the Government is set up in this discretionary exercise of its power, that person can’t recover.

Richard B. Montgomery:

Well, sir, I think that that — your question brings out the first part of my argument where Justice Frankfurter asked me what specific point I was arguing to.

Congress, specifically in Section 1680, exempted — accepted any claim arising out of the laws, miscarriage or negligence, transmission of letters or postal matters.

They specifically exempted the Coast Guard in war, but they made no attempt to exempt the operation of light.

And since the — since the question in this particular case is a — is not a discretionary matter, it doesn’t come under the exemptions.

And I say further that under — what I have read about the interpretation of statutes, it falls that Congress didn’t intend that sort of thing to be exempted when they didn’t specifically put it among the other 12 exemptions, which they spelled out in detail.

And I say that is the distinction, that Congress is — and it isn’t the fact that it’s the function that causes the damage.

It’s a question of whether it’s a discretionary function, and that’s the only use of words throughout the number of times that the Attorney General appeared before the Committees.

There’s no such talk in any opinion of an ultimate function.

Felix Frankfurter:

If the — even the Attorney General would — varies with — would he on behalf of the Government urged this commission, if they say this is to be restricted merely to injuries being running over, (Inaudible)

Richard B. Montgomery:

No, they used that as an example, sir.

Felix Frankfurter:

The Government could have not believed in saying mere fact (Inaudible) be compensated through all is the only way to talk.

Is there any suggestion that his act to perform with such great (Inaudible) was intended to be restricted merely to ordinary and (Inaudible)

Richard B. Montgomery:

Not that I read.

They used the word — they — they used the language which we find in these exceptions, Mr. Justice Harlan in the (Inaudible) case that the end of the case went into the exceptions because he had the exception of an assault and it would — it had to be determined in that case whether it fell within that exception.

What I say that — whenever you say they don’t or that he didn’t — they don’t — you don’t know where you going to end up.

The Government might able to show you one instance, but my reading of it doesn’t show any — any such intention.

They intended to get around discretionary functions on a policy level, and that was the intention.

In a matter of fact, the — the Government says, the Attorney General says throughout that it is to the intention to get away from the ideas.

The Monarch could do know.

The King could do no wrong from the —

Felix Frankfurter:

There’s another — there’s another important thing to have a general system important to report instead of the abuses or the inconvenience in the birth of the private bill.

Richard B. Montgomery:

That’s correct sir.

Felix Frankfurter:

The private bills in the Court one (Inaudible)

Richard B. Montgomery:

No, sir, although —

Felix Frankfurter:

Not all sorts of things.

Richard B. Montgomery:

— although the Government in his brief tried to show us the way back when the question of wavering sovereign immunity hadn’t really gotten to be serious that they refused to give damages for the failure of a lighthouse, Congress did.

Richard B. Montgomery:

Well, I think that was so far back to that — that that has very little to do with this case as far as what went on before Congress in — in the party.

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

Well, it —

Felix Frankfurter:

All — all that show is they (Inaudible)

Richard B. Montgomery:

That’s right, sir.

That’s right, that’s right, sir.

But — but you —

Felix Frankfurter:

(Inaudible)

Richard B. Montgomery:

I sir, I — I say that it should have been — I mean, I — I think that Justice Jackson more or less disagreed with the Feres case in his dissenting opinion, but I can well understand why you — why you can use that phrase in — in 12 — in 1679 to say that “Gladly, there has never been such a cause of action where the law had never hide of such of cause of action that you could exclude it from being under the Tort Claims Act.”

In other words, since in every country, fire fighting — there’s — it’s never been considered that there should be claims for arising out of the fighting of fires.

In — –in — there’s never been claims arising where the armies had been raised by soldiers against their Government.

I’d say that those are — are very exceptional but that that — this — that does not apply to this case, because they are analogous situations.

And if the Government, which it could do it, couldn’t turn over its army to — to a private individual, but if this is in England, they turned it all — the lighthouses over their private individual, there would be causes of action.

What — it isn’t just because of the fact that the Government decides that private individuals can’t compete with them and there’s no Federal Tort Claims Act.

Does that destroy a common law remedy?

(Inaudible)

Richard B. Montgomery:

There’s never been, sir that — that I know of, although, I don’t see why.

(Inaudible)

Richard B. Montgomery:

Well, then, I don’t understand.

I can’t understand a reading in the opinions in the state courts and everyone else if — if it — if I cannot understand why they couldn’t be damages under the — under the Dalehite case.

Felix Frankfurter:

But there had been a case for damages with failure of awarding (Inaudible)

Richard B. Montgomery:

That’s — that’s private, but that was a private operated company, sir.

There hasn’t been a case against the municipality for the failure to — in fighting a fire or for negligence of a fireman.

I can’t go around that fact, sir.

I know of no case where they’ve allowed damages in England or I wish I could find one, but there isn’t any.

That is in remedy, which has never been allowed and all the authorities, starting with Henry VIII say, “It’s impossible to allow damages against anyone.”

I doubt seriously if a group of citizens in fighting a fire decided to dynamite a house because with — even though they didn’t have the authority of the city that they would be liable if it was done with discretion.

And they did it because they believe it wasn’t done maliciously.

I will plea, but they believe it was necessary to save the city, and that’s why I say that can — you can explain that situation under the language, which is used in the — in the Feres case and it doesn’t affect my case.

I’m talking —

Felix Frankfurter:

The fire fighting — the fire fighting case that do not turn on governmental (Inaudible) conduct.

They turn on to something else, just (Inaudible)

The fire — private fire fighting officials aren’t (Inaudible) but I don’t know why (Inaudible)

No future allowed.

Richard B. Montgomery:

Correct, sir.

Felix Frankfurter:

For the same reason in any other action, suppose all it comes down to is undesirable, they couldn’t — (Inaudible) of the litigation, because every time (Inaudible)

Richard B. Montgomery:

That’s correct, sir, and I was answering the argument about why the Feres case and why the Dalehite case did not create any exceptions to the — to the rule that those were the two distinctions that there never had been a common law remedy, and that the only way one could be created would be for Congress to specifically create it, because the fact is that there never has been a common law remedy for fire — for fighting fire and for the damage it was done in fighting fires by anyone.

And there never has been a case where there’s been a soldier allowed to recover against this Government or against anyone else against the State as a militiaman.

Those are the only two exceptions that could be brought under the — that clause of the section to which Justice Harlan was referring.

Mr. Montgomery, would you mind giving me that previous citation?

Richard B. Montgomery:

It’s Gilbert versus the Corporation of Trinity House, Law Reports, Queens’ Bench Division, Vol.XVII, year 1886 at page 795.

Earl Warren:

Thank you.

Mr. Jayson.

Lester S. Jayson:

May it please the Court.

The Tort Claims Act of course is a broad way of what the Government’s immunity can sue.

It’s not, however, an unlimited waiver.

And one of the fundamental limits they’ve used on the coverage of the Act in which it is now settled is that an exclusive claim’s based upon a performance of the governmental function, that’s both the majority in the Dalehite case so held and the dissent does not disagree with that failure to the case.

It’s pretty held that there’s a center scope that there was a misapplication of that exclusion and I’ll go into that a little later.

The governmental function exclusion we think has two textual basis — bases in the Act.

The first is Section 2674, which provides that the United States shall be liable in the same manner and to the same extent as a private individual under like circumstances.

And the second —

Felix Frankfurter:

Not the same, but like.

Lester S. Jayson:

Under like circumstances, and when I asked him for identical circumstances, we’re asking that the circumstances be viewed in all of the circumstances and make the analogy then.

Now, I might say that Section 1346 has somewhat analogous language.

Then, there is Section 2680, the discretionary function exception, which bars claims arising out of the performance or the failure to perform a discretionary function.

Now, I want to make one thing clear, and this is not change of position by any means.

We don’t contend here that this light was out because of any discretionary act by the Coast Guards who then inspected that Act, who would — who inspected that light house.

(Inaudible)

Lester S. Jayson:

We don’t know.

No, he didn’t exercise any judgment.

Lester S. Jayson:

We’re not relying on that factor.

Accordingly, we don’t rely on the discretionary function exception in the sense that the discretionary function exception excludes claims involving the exercise of judgment by a particular governmental official.

Our emphasis here is on Section 2674.

That has to be met first because that lies at the threshold of the Act.

However, we do say, and I might inject it parenthetically only here that if we go beyond Section 2674, then we think the discretionary function exception also excludes the claim, not because of an individual act of judgment by an employee, but because we think that if we examine the cases dealing with the words, “discretionary function,” there are great many cases in that field.

You’ll find that those cases will apply that phrase to a situation where you have a governmental activity even though no act of judgment is involved.

For example, you may have a case of negligent fire fighting where the fireman on the scene was negligent.

And the Courts will say there are such — many such cases that the Courts will say, “There’s no liability because this is a discretionary function.”

Now, insofar as that concept caries over, we rely on 2680, but what we’re really saying is that 2680 means the same thing as 2674.

And I’d like to put that apart for the moment because our emphasis, our primary reliance is 2674.

Earl Warren:

Can you give of some types of action that was in fire fighting action to reliable —

Lester S. Jayson:

We —

Earl Warren:

— thing similar to this?

Lester S. Jayson:

We think that any activity, which now is or which historically has been regarded as the special aim or function of Government falls within the 2674 exception.

For example, law enforcement.

Harold Burton:

What?

Lester S. Jayson:

Law enforcement, the apprehension of criminals, the prevention of crime, fire fighting, the prevention of fire, the extinguishing of fires, weather reporting, the regulation of commerce, health inspection, these are areas which through the years have always been regarded as the special aim of Government.

Felix Frankfurter:

When is the regulation of commerce comes within the special aim of Government?

What date are we to take —

Lester S. Jayson:

I don’t —

Felix Frankfurter:

— whether it becomes so or not.

Lester S. Jayson:

Your Honor, it doesn’t depend on the date.

For example, assume a federal territory where there is no U.S.Marshal.

Some members of the community go around and then force law.

Subsequently, the Government sends in a U.S.Marshal.

Clearly, law enforcement is a governmental function and the fact that somebody else undertook before doesn’t stop it from being what we regard —

Felix Frankfurter:

Where did you get this — where did you get this phrase into conflict of governmental function in relation to this Act?

It isn’t the statute.

Lester S. Jayson:

It appears in the legislative history and it appears in the decisions of this Court constrained.

Felix Frankfurter:

Where did you get it from?

Felix Frankfurter:

What — what — how do I divide a conflict?

Can we say it’s there, but has nothing to do with it?

Lester S. Jayson:

I don’t say that.

Felix Frankfurter:

That is not — what?

Lester S. Jayson:

No, no, I don’t — you didn’t let me complete my thought on that example.

Felix Frankfurter:

We don’t blame the position with tomorrow, next — for the next conversation.

Lester S. Jayson:

Then, I was —

Felix Frankfurter:

Thereafter, that becomes governmentally yours then.

Lester S. Jayson:

No, no because I think that’s where history is important.

You look to the function and you say that normally this is an activity which has been handled by private individuals.

Let me give you — let me just carry out an illustration just a little further.

Before the advent of the automobile, no one would have thought that control the traffic on a highway and the establishment of caution signs or danger signs was necessarily a governmental function.

But as progress comes along and the automobile comes, it’s no well settled that the control of traffic on the highway is a governmental function.

Felix Frankfurter:

What do you mean by that as the Government does it?

Would it mean anything more than that?

Lester S. Jayson:

It means — it may mean also that it doesn’t aid to the exclusion of everybody as we have here in the lighthouse situation or it may mean that this is well recognized as dominantly governmental.

Felix Frankfurter:

But by looking even to the Court of Appeals, the body, where the body comes, assuming a 100 years ago, (Inaudible) you just go to the police forces (Inaudible)

Lester S. Jayson:

And if you go back far, in connection with every one of these illustrations I’ve given you, law enforcement and so forth, you’ll find that you trace it back at one time.

It was done by individual members of the community.

But today, one of the principle — one of the basic objectives of Government today is to provide for the protection, the safety, the health of the community through this type of activity, and it’s also —

Felix Frankfurter:

Also, the Government can take over more and more and more.

After all, the more the Government does, the more the Tort Act prints.

Lester S. Jayson:

No, we don’t quite go — by any means go that far, Your Honor.

A reason of illustration is the stepping into the Government to regulate aircraft in flight, and that has a direct analogy to the regulation of automobiles on the highway.

It’s well settled that the regulation of traffic on the highway, the responsibility, the duty of putting up signs and saying, “Danger ahead, caution, school crossing,” or what have you is an obligation which nobody undertakes other than the Government because no private person has any legal obligations to do it.

Now, in this particular case, the gist of the complaint is not that the United States created any hazards, which caused to adapt the grounding of the tug.

The gist of the complaint here is that the United States could have avoided the grounding of this tug by posting a warning that there was danger here, a danger in the water.

In other words, with just the essence of the complaint is that the Coast Guard, through negligence, failed to fulfill its uniquely governmental function of promoting safety at sea.

Felix Frankfurter:

Why is there anymore uniquely governmental than a male truck driver, driving a mail truck?

Lester S. Jayson:

Male truck driver, driving a mail truck is engaging in an activity, which all of us recognize everyone engages, and namely, driving a truck.

Lester S. Jayson:

Now, we — we can disassociate that driving of a truck from the ultimate end which is the delivery of the mails.

Felix Frankfurter:

Can you shed a light as what is done all over the United States every night?

Lester S. Jayson:

But you see —

Felix Frankfurter:

(Inaudible)

Lester S. Jayson:

— in the —

Felix Frankfurter:

(Inaudible)

Lester S. Jayson:

— in the illustration that you gave Your Honor, of driving the truck, the thing that the plaintiff was injured by negligent driving he’s complaining about is the negligent driving.

And when you transpose that to this case as just Mr. Justice Minton pointed out, the complainant is not complaining about something, which has a private counterpart.

He’s complaining about the failure of the end objective, preventing — preventing an accident at sea.

Felix Frankfurter:

Tell me physically what was not done here that should have been done.

Lester S. Jayson:

The light should have been kept burning.

Felix Frankfurter:

The light, I just have —

Lester S. Jayson:

It doesn’t — so far as this point that is concerned, they don’t care how.

Felix Frankfurter:

What?

Lester S. Jayson:

They don’t care whether it was —

Felix Frankfurter:

No, but I (Inaudible)

Just tell me what this fellow failed to do which under — he was under duty not —

Lester S. Jayson:

Accepting the allegation of their complaint, he failed to — the notice of disconnection.

If we ever go back to trial, actually, we will prove that some —

Felix Frankfurter:

Now, a failure of disconnection that happens all over the United States everyday, I suppose.

Lester S. Jayson:

But my — but our point is that the claim —

Felix Frankfurter:

What about anything that (Inaudible) the lighthouse, which the Congress of the United States for tomorrow terminates, (Inaudible)

Lester S. Jayson:

In the —

Felix Frankfurter:

Is that right?

Lester S. Jayson:

In the Dalehite case or in any of these cases involving a public function, you can look to see what actually caused the damage.

Why didn’t the Coast Guard put out the fire?

Someone suggested they should have pulled one these vessels out to sea soon enough, but this Court didn’t examine the precise facts that gave rise to the negligence of the Coast Guard.

The Court said, “We don’t have to examine all these facts, because the claim is barred.”

Felix Frankfurter:

Do you think this is Dalehite?

Lester S. Jayson:

I think the principles in announcing —

Felix Frankfurter:

Why does the — that the Coast Guard is immunized no matter what he does?

Lester S. Jayson:

Well, certainly not, Your Honor, but that —

Felix Frankfurter:

What is the principle?

Lester S. Jayson:

The principle is that the effect of the Tort Claims Act is a way of immunity that the Court says there, only from recognized causes of action.

Now, there’s never been a recognized cause of action for the failure of the Government to afford these public services, like providing for the protection of safety or the health of the community.

I don’t think this Court would — would consider very seriously a complaint which alleged here that the SCC was negligent and not preventing a stop for it.

Felix Frankfurter:

But the Court — did the Government — is it the service of the Government to provide trucks or is it a service of the Government to provide trucks for certain purposes?

Lester S. Jayson:

Now, in attaining these public or governmental functions in attaining these goals that I’m speaking about, law enforcement, prevention of crime, fire prevention, the Government of course engages in a various type of activity, which do have their private counterpart, driving for example or various others, repairing a building, putting up a building.

We have no claimed ever that this lighthouse had fallen and struck somebody on the ground that the Tort Claims Act would have largely recovered because that’s not so.

The erection of the structure has its private counterpart, has its private duties and analogous liability.

Felix Frankfurter:

Hence, this Act (Inaudible) against merits.

Lester S. Jayson:

Yes, Your Honor and —

Felix Frankfurter:

But he said he’s (Inaudible) in which this party expressly disavows rejection.

Now, that’s the (Inaudible) untenable condition, in a private action, and present that as a public action?

Lester S. Jayson:

Your Honor, we don’t — we don’t disagree with that position at all.

Let me — let me see if I can put it in.

There’s no doubt that everything the Government undertakes in one sense is governmental.

You can’t disassociate the Government from its activities.

But when it comes to measuring the liability of the Government, then in that case, this Court said, “When the Court — when the Government comes into Court, you can’t disassociate it from its being as government,” unless Congress otherwise provide, Your Honor said in that opinion.

Now, here, Congress has provided, Congress has made a distinction between where the Government acts a Government and where it acts as a private party.

Felix Frankfurter:

Having done so, you must get that out of the specific phrases in the case of (Inaudible) in light circumstance.

Is it — had you — in your phrase, you would have had assert those metaphysical problem by which the state court try to get away from the fact that in those days, there were sovereign immunity and they have to get some — some legal document to get away from it.

Lester S. Jayson:

Well, now, the question then is, is this a situation in which a private person would find himself?

We contend that no private person could ever find himself in an analogous situation.

First, because no private person has any legal obligation, unless leave an authority to go out upon the navigable waters of the United States and to maintain the lighthouse and to tell the public of this unhidden danger here.

Felix Frankfurter:

But my point is —

Lester S. Jayson:

I beg your pardon?

Felix Frankfurter:

My point here, there’s lots of it (Voice Overlap) —

Lester S. Jayson:

In this — in this instance, he could not because for over a half a century, Congress have had a statute on the books expressly prohibiting not only a private person but any public body from undertaking the establishment of a navigational aid, except for private purposes.

Felix Frankfurter:

(Voice Overlap) —

Lester S. Jayson:

I beg your pardon?

Felix Frankfurter:

Suppose it had quite a private (Inaudible) the statutes.

I suppose I don’t know how far back, certainly which can give — preventing anybody from carrying mail as a private carrier.

Lester S. Jayson:

And I know of no statute, Your Honor, which prevents anyone from fighting fire.

And yet, this Court in the Dalehite case, exonerating the Government for a so-called negligent fire fighting because the activity had no private parallel —

Felix Frankfurter:

That is just one, Mr. Jayson, because of the activity, not because the Government has engaged in it, but because of the nature of the activity in fire fighting.

Lester S. Jayson:

And we — we agree with that phase of it.

The activity involved here, promoting safety at sea, warning navigators of the hidden dangers in the water is an activity which ever since the beginning of the country have been recognized and assumed by the Federal Government since 1789, since the Ninth Statute enacted by the first Congress, the Federal Government undertook to operate and to maintain the lighthouses and other navigational aids.

And if history means anything, it must mean something.

We never disassociate so with history.

This function has always been an exclusively governmental function.

Earl Warren:

Is there an essential difference between this kind of a navigational aid and other say lights on the railroad bridge that a railroad is required to a case?

Lester S. Jayson:

Oh, yes.

Yes, Your Honor.

Earl Warren:

What is the essential difference?

Lester S. Jayson:

The difference is that the railroad has itself created a danger or hazard.

And therefore, anyone, anyone who creates a hazard — hazard duty at common law in a recognized duty to warn others, but no one has the duty to go out on a publicly travelled duty and stand there and warn the public of something that he didn’t himself create.

Earl Warren:

Well, that’s in — then, that go to the — the observation of Mr. or Justice Frankfurter to the effect that this Act says, “Not actions that are the same but those that are alike.”

Lester S. Jayson:

But no one, other than the Government, undertakes these obligations for the community at large.

Earl Warren:

You say nobody, but a Government.

Lester S. Jayson:

No.

Earl Warren:

It’s just been shown that the British Government has permitted that all through the years.

It’s doing it — doing it now —

Lester S. Jayson:

The Trinity House, Mr. Chief Justice, the Trinity House has a quasi-judicial — a quasi-public organization.

It’s had its charter from the Crown or — I think in the 16th century.

Now, I’d like to point out that the case that my friend —

Felix Frankfurter:

(Inaudible) have decided that that’s a (Inaudible)

Lester S. Jayson:

But it’s always had this function in England, and I might point out that the case as my friend cited, the Gilbert case, as my recollection of that case and it was cited in our main brief.

The situation there was that the Trinity House has left a part of the structure in the water, which a vessel went into and damages were imposed.

Now, that fixing with the argument we’re making, if anybody means a structure in the water, he himself has created the hazard.

Lester S. Jayson:

That liability will and should be imposed.

If we had wrecked a vessel and failed to mark it, plus, ourselves creating the hazard, we would not deny liability because that’s the same type of liability which everyone has.

But if someone else sinks the vessel and that person fails to warn, so that we have now a danger to the public and it is navigational in general.

Now, the Coast Guard then goes (Inaudible) and marked that common danger, we would say we’re not liable because now, we’re acting in our public capacity.

We’re acting in this capacity as a Government — by a Government so to speak.

Now, I had recognized that sometimes it’s very difficult to draw the line, but I think that’s not out fault, it’s the fault of Congress because they’ve said in Section 2674, “You can only impose liability in a situation where a private person would be liable under like circumstances.”

(Inaudible) that Coast Guard activities passed the regulation saying, “The interest of the economy program are going to have the lights going and a couple of hours a night instead of all nights.

Lester S. Jayson:

Yes and that situation —

Well, now, that’s — that would be a different situation, wouldn’t it?

Lester S. Jayson:

No, because in that situation, it’s true, the discretionary function exception would also come into play, but it’s that situation where the two exceptions over last in our view, which say that you don’t have to go to the discretionary function because the Court wouldn’t have to examine to see why the light was out.

Well, was there any kind of an allegation that could have been made here in reference to alleged negligence in maintaining this light that would have satisfied your view of the Tort Claims Act?

Lester S. Jayson:

Insofar as the claiming that the light should have been burning that we had a duty to keep the light burning as a public service to perform, and one marries the hidden danger of the sea, we think this claim cannot be brought under (Voice Overlap) —

Suppose, in the allegation, it’s been that the Government had maintained a drunken employee on the — on that light.

Lester S. Jayson:

As the course of the light going out?

Yes.

Lester S. Jayson:

We don’t think that the — there would be any difference.

No difference.

Lester S. Jayson:

The drunken employee certainly is committing an offense and there would be some means of public prosecution to that man just the same as if they were —

No civil liability?

Lester S. Jayson:

No civil liability.

Earl Warren:

Suppose we take this — this situation.

Suppose the employee decided to inspect this light in the nighttime and he turned the light far that was in — while he was inspecting the — the fixed areas, the ship came along and was destroyed.

Will the Government be liable there?

Lester S. Jayson:

I think we have the same situation basically, because we say that if the essence of the two points that they have to keep a public warning up doesn’t make any difference why the light was out, no means of examining.

Our contention is that if the function that when — when looking at it is one which is peculiarly governmental, and then the Congress never extended that type of liability to be imposed on the United States.

And we’re not asking here for any — this is not a question for suppression on the Court.

It’s already been brought out and the matter was passed upon in the Feres cases.

Felix Frankfurter:

But the third case really isn’t different for me as night from day, which they held and I would wonder, namely, to be that Congress had established a different status in affirming and the relation of — of United States on its (Inaudible) that it had in many ways an open relation to — to those (Inaudible)

That was the custom, doesn’t it?

Lester S. Jayson:

That’s — that’s the result that reached no question about it.

Felix Frankfurter:

That’s the result that’s (Inaudible) a reason for it —

Lester S. Jayson:

If the right —

Felix Frankfurter:

— the reason for the prior decision in Standard Oil against United States.

Lester S. Jayson:

The rationale of the case, there is one part of the rationale that we rely on as where the Court pointed out.

There has never been alike liability between a soldier and the Government.

We say that applies here.

We know that the Court voted that language and relied upon it and applied it directly in the Dalehite case in the Coast Guard portion of the case.

Felix Frankfurter:

The Dalehite is the — the whole cluster, the whole part, whole action, (Inaudible) that they had and appeared as an important postwar or still war operation, which weigh out in the part, purely something, except the United States and this was a means of telling us a high amount of quality on the highest level.

That again is this fellow, not turning on the switch which was only turned on or turned off everyday of the year.

Lester S. Jayson:

But Your Honor, we must recall that in Dalehite, there were two types of negligence charged to the Government.

There was the first with regard to the negligent manufacturing, packaging and shipping of this fertilizer in which point the Court applied the discretionary function, exception because those did have a private counterpart manufacturing, packaging, had — had their private counterpart.

But the Court was also concerned with the allegations and the findings that the Coast Guard was negligent in fire fighting, and it’s that case —

Felix Frankfurter:

Do not forget the fire fighting.

Lester S. Jayson:

And it’s that phase — it’s that phase of the case that we rely on.

Felix Frankfurter:

(Inaudible)

Lester S. Jayson:

Of course, it is not, but there’s just isn’t no liability that a common law for a municipality stated a fight of fire properly, so there is no liability for a municipality to state it and put up caution signs on the highway, which have a direct analogy here, danger signs, stop signs, stop lights and so forth, and that’s the same type of case which we’re relying upon here.

Now, that that doesn’t mean — that certainly doesn’t mean that we’re going to contend that the Tort Claims Acts bars a claim based upon anything that tends to promote these objectives.

The point —

Felix Frankfurter:

Question, question, excuse me.

(Inaudible) in which you —

Lester S. Jayson:

Whatever —

Felix Frankfurter:

— you say the Government would be liable.

Lester S. Jayson:

In any situation, where the Government, in seeking to obtain one of these objectives and engages in an activity like that of a private person and a liable person —

Felix Frankfurter:

Turning on the switches, by turning on the switches.

Lester S. Jayson:

But that isn’t his complaint.

Felix Frankfurter:

What?

Lester S. Jayson:

The essence of his complaint is not the turning on of the switch.

The essence of his complaint is that there was no light out.

He doesn’t really care why the light was out, but why was it out.

Felix Frankfurter:

Does the — does the complaint fail to state negligence?

Lester S. Jayson:

The complaint specifies freedom in case of negligence, just as the findings in Dalehite at a great number indication as to why the Coast Guard was negligent.

The Court in Dalehite never examined those findings and we suggest that the Court has no occasion to examine the — the allegation here.

If you look at the nature of the claim, just to the claim, there was negligent firefighting never recognized —

Felix Frankfurter:

I don’t care about the gist.

I want to know what obligation is done.

It says how an allegation says, it isn’t a failure, negligence to turn on the switch, and to see if then there was light (Inaudible)

Lester S. Jayson:

Not in this, no.

Not in this setting.

Felix Frankfurter:

All right, and nothing that he can allege in this situation?

Lester S. Jayson:

No, Your Honor, because maintenance of navigational aids, maintenance of the lighthouses is a uniquely governmental function just like fire fighting in our view.

Felix Frankfurter:

Would it make a difference — I know (Inaudible) hypothetical cases, but suppose in 1948, and there’s a current revision for all lighthouse legislation.

They came from private enterprises people, the (Inaudible) Congress and they say, let’s (Inaudible) or in certain areas rather than the private people who put out buoys and lighthouses, as (Inaudible)

And yet you would say, but they did try it in (Inaudible)

Lester S. Jayson:

It might well.

Felix Frankfurter:

Do you think they turned on things like that?

Lester S. Jayson:

The command on this part is when you get to look to all of the circumstances.

You will recall that in the Feres case, the circumstance of the injury was malpractice.

And on the assertion, he had left the tower in one of the soldiers whom he operated on.

Another claim there was that one of the soldiers had died in the barracks because of the effective heating plant.

Of course, you have the direct private analogy to a landlord who has a duty to take care of his — the heating plant on behalf of his tenant, but the Court went on.

It went beyond those — little of those circumstances and found that there was a uniquely governmental relationship here.

Felix Frankfurter:

No.

Well, that’s it, the soldier and his Government.

There’s something very deep into anything else in the world, because Congress recognized it and provided you a different (Inaudible)

Lester S. Jayson:

Just as there is a uniquely governmental relationship —

Felix Frankfurter:

And what the review provided for this, provided a bill (Inaudible) which is a very thing they wanted to avoid by it.

Lester S. Jayson:

I would then propose of your last questions.

Felix Frankfurter:

My point is that in the case of Feres, the case here is remote as (Inaudible) against Maryland, frankly, just as remote, or (Inaudible) but I wouldn’t cite that because the essence of that case was that the status of the soldier (Inaudible)

And I say here that suppose it’s very broadly legislated, you can talk about Government here, played by the Government, pleaded to the Government.

Here is an analogizing to what is done in private industry, in order for one — for two reasons, one, to the injustice.

Felix Frankfurter:

Two, to prevent the (Inaudible) holding what was done from private legislation and the burden on Congress to private legislation.

What we now say is, it is just where we were before this Act was passed prevailing that somebody must get a Congressman and Senator to secure (Inaudible) private bill.

Lester S. Jayson:

Well, as Your Honors know, I’m not saying that.

Felix Frankfurter:

But that’s the effect.

That’s the result of —

Lester S. Jayson:

No, we —

Felix Frankfurter:

I do not say this, but that’s what — it is why —

Lester S. Jayson:

We know and anyone reading the legislative history of the Tort Claims Act must know that the Tort Claims Act, Congressman sponsors were recognized that they’re going to go cautious of it.

As a matter fact, there are many conditions, proceedings for the right to sue.

There are many exceptions, many exclusions.

And as recently as this past August, Congress reaffirmed this awareness that because of the Act’s limitation, because there’s many occasions where there still be a need for the private bill rendered.

The Court may be aware that they passed a bill providing for relief for those who suffered damage under the Texas City disaster.

But it’s important to point out that in the community reports, dealing with that bill, Congress was very careful to say that they were not superseding or invalidating this Court’s decision in Dalehite, but that they recognized both before and since the enactment of the Tort Claims Act, there are certain voids in the law.

Felix Frankfurter:

Merely validates that decision, that’s the decision.

How can they invalidate?

Lester S. Jayson:

By a new legislation.

Felix Frankfurter:

Yes.

They can change the law within a — but what they are doing here is to shuffle out a lot of money to partners that the whole history of the Tort Claims Act — I know little about it (Inaudible)

Harold Burton:

Let me ask you a question please.

This is a negligence case.

Before the Government could be liable, there must be a duty to use care, and that duty arises out of the pages to exercises the discretionary function without negligence?

Lester S. Jayson:

There must be an actionable duty.

Harold Burton:

What?

Lester S. Jayson:

There must be an actionable duty thereto.

There is certainly a duty on —

Harold Burton:

But can — can such a duty arise out of the exercise of the discretionary power?

Lester S. Jayson:

No, Your Honor.

Felix Frankfurter:

But there was no action for duty in the truck driver before this statute.

Lester S. Jayson:

Yes, there —

Felix Frankfurter:

There was no action of the duty because —

Lester S. Jayson:

There was always —

Felix Frankfurter:

— the Government is to weigh to community.

Lester S. Jayson:

Let me recall for you a decision by Mr. Justice Brandeis over 30 years ago in this Court’s —

Harold Burton:

The old duty to use care towards a person and instruct on the street.

Lester S. Jayson:

There is always that duty —

Harold Burton:

Yes.

Lester S. Jayson:

— but just as there is always a duty to keep that light burning, but the question is, is it an actionable duty?

Felix Frankfurter:

But there was no actionable duty on the part of the truck driver when he go over that part of the trial to see — how this statute is passed.

Lester S. Jayson:

Your Honor, the truck driver could have been sued so and we’ve gotten he could not have because the statute —

Felix Frankfurter:

Yes, it’s a suit against the Government.

They’re not talking about private here, against (Inaudible)

Lester S. Jayson:

There was a decision by this Court some 30 years ago, Turner against the United States in 248 U.S., which I think indicates the nature of our argument.

Mr. Justice Brennan is writing for the Court at that time say that the reason there is no liability in this type of situation as dealing with a governmental activity, I think with just governmental activity is not because of the immunity of this problem, but because there is no recognized substance of light at common law to recover damages for the failure of the Government to perform its public duties efficiently.

Therefore, he held in that case where there has been a waiver of some immunity unless the Act itself creates such a right.

The claim is not acting.

Now, it’s long been settled by this Court because aside from three different occasions that this Tort Claims Act does not create new rights.

It only permits suit where there has been a recognized right at common law.

Now, as this principle was to be applied by the Eighth Circuit in a case involving negligent weather forecasting and very recently implied by the Ninth Circuit in a case dealing with negligence of the fire service, allegedly, failing to suppress fire.

It’s also been applied in the prisoner case where a prisoner sues the United States, alleging that some negligence occurred and caused him injury, the relationship between the Government and the prisoner as such that there is nothing like it at common law.

We say that the closest analogy to this report is that involving cities and States and thereupon, it provides safety on the highway.

I suggest that it’s virtually unanimous rule that if a city or a state is not liable at common law because it fails to maintain the stop sign or a precaution sign or a safety marker or a guideline on the highway.

Now, there’s been some suggestion that perhaps the United States (Inaudible)

Earl Warren:

How about defective — defective streets and highways?

Lester S. Jayson:

That, cities are liable for defective streets and it’s always been regarded as an exceptional situation based primarily upon the fact that the city has physical control of the streets.

We, of course, have no such control here on the waters and the street situation is not the same or is supposing an analogy as controlling traffic or putting up signs on the street.

Do you think that development is a much better analogy Your Honors under the defective condition of its virtue?

Now, there’d been some suggestion that when the United States undertakes as a volunteer to provide one of those public services to the much for — under a duty to carry them out carefully, I will suggest that if we do have a governmental function exclusion or as we may have now settled to impose liability of a volunteer was in effect to destroy that exclusion because all of these services like police protection, weather forecasting, firefighting, control of — or control of health inspection are undertaken by the Government in a voluntary manner with the expectation that we would rely upon them.

Congress never contemplated that that type of activity would be used to impose liability on the United States.

We say that the maintenance of lighthouses and other navigational aids, to assist and to guide marines has always been historically and traditionally since the beginning of this country, exclusively a governmental function with the exception of these little private aids, which can relate to private purposes.

Hugo L. Black:

If you win this case, is it — is it necessary for us to reintroduce to you a law that’s indefinable distinction between governmental function and nongovernmental function?

Lester S. Jayson:

We think that there are certain activities, which, at first glance, any lawyer or any judge will know that this is uniquely governmental.

Law enforcement is such an activity.

If the FBI fails negligently to prevent a bank robbery, I don’t think any court would permit suit under the Tort Claims Act.

The SCC, as I mentioned before, negligently fails to present the stock hold.

I don’t think this Court would seriously consider a claim being filed.

And yet, these are uniquely governmental activity regulation — regulation of stock —

Felix Frankfurter:

Do you think doing (Inaudible) to a uniquely governmental function.

Lester S. Jayson:

I think —

Felix Frankfurter:

that could (Inaudible)

Lester S. Jayson:

I think —

Felix Frankfurter:

— so unique that it wasn’t heard before.

Lester S. Jayson:

I think that the regulation can only be carried on by the Government.

There’s no private person who can regulate because no private person has the authority of a sanction or law behind it.

Felix Frankfurter:

(Inaudible)

Lester S. Jayson:

And where that is involved, I don’t think that the Tort Claims Act would encompass liability.

We ask, therefore, that the judgments here be affirmed unless the Court has any further questions, I’ll sit down.

Earl Warren:

Mr. Montgomery.

Richard B. Montgomery:

May it please the Court.

It seems to me that counsel was trying to make a distinction by saying that there was no obligation on the part of the Government to maintain that light.

Well, it sort of shocks me because once the Government creates the light, an aid to navigation, they’re certainly on obligation not to let that light go out with mariners, warning being warned.

As a matter of fact, the Government always report discontinues in aid to navigation.

It sends out notices to mariners that the aid is going to be discontinued.

And if someone went out on the road and — and started in to set up signs to prevent accidents for some reason, the dangerous situation exists deeply on obligation to do it correctly.

Now, there isn’t any doubt but the Government’s argument comes to the fact that whenever the Government takes over a function and makes it uniquely theirs, then there’s no right under the Tort Claims Act.

Aids to navigation — will not — are not considered until the Government took it over to a very unique government function.

And if you have a private canal, as I’ve said, you can set up or suppose to set up the light if your vessel is using it and the Government grants permission in cases of private canals being used by one company to set up whatever aids they need.

And if a seaman, as I said, was injured on a vessel, which because the Government — because the private place can set up an improper aids to navigation, their safety would be a cause of action.

As I understood what the sentence meant, it meant that there had to be a common law remedy.

That it couldn’t be something that — there’s never been a common law right created for.

They’re bound to become law rights where improper aid to anybody is — is used as in this case.

Hugo L. Black:

How did you answer the Government’s good samaritan (Inaudible)

Richard B. Montgomery:

Sir?

Hugo L. Black:

How do you answer the Government’s good samaritan (Inaudible)

Richard B. Montgomery:

Well, I said —

Hugo L. Black:

Have you answered that?

Richard B. Montgomery:

I say — I say that there’s always been such a doctrine like places, New Haven.

It’s always said that if you thought to do something, the Government as I said didn’t have to put up this light.

That would have been a discretionary measure for having to put up the light — having allowed mariners to depend upon the light, the light going out becomes a chance to America.

Hugo L. Black:

What about charitable hospitals?

Richard B. Montgomery:

Well that’s — that’s a doctrine which comes down through the fact that say anyway you have a charity then there is no liability.

Hugo L. Black:

Where do they say so, everywhere?

Richard B. Montgomery:

Not everywhere.

There are some States — within the State to do.

It’s a theory that — that it will make the people make for charity to do more good to the ultimate number of people by not allowing their recovery because otherwise, these institutions, which are running on private charity wouldn’t be able to function to the benefit of the — of people.

Felix Frankfurter:

But your statement must have qualified for providing (Inaudible)

Richard B. Montgomery:

Well I’m speaking — sir, I’m speaking for my state only because I have listened to the law for charity institution.