Tobar v. United States
639 F.3d 1191
| 9th Cir. | 2011Background
- Plaintiffs are Ecuadorian crew members of a fishing vessel stopped, searched, detained, and towed by the U.S. Coast Guard on the high seas near the Galapagos Islands.
- Tests on the vessel were inconclusive; with Ecuadorian consent the vessel was towed to Ecuador, where further tests found no contraband and no charges were filed.
- Plaintiffs sued the United States for damages including unlawful imprisonment, property loss, and related harms; the district court dismissed for lack of sovereign immunity and the Ninth Circuit reviews de novo.
- Plaintiffs argued multiple potential waivers (PVA, SAA, FTCA, ATSA, treaties, and related instruments) while the United States contends there is no express waiver; the court must determine which waivers apply and whether reciprocity conditions exist.
- The court ultimately affirms in part, vacates in part, and remands to determine reciprocity under Ecuadorian law and the content of foreign-law evidence under Rule 44.1.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is there a waiver of sovereign immunity under the PVA, SAA, or FTCA that covers these claims? | Plaintiffs rely on PVA/SAA/FTCA as waivers. | PVA/SAA/FTCA provide waivers only under specified conditions that may not be satisfied here. | Waivers exist only if reciprocity is shown; remand to assess reciprocity. |
| Do non-congressional sources (regulation/letter) effectively waive sovereign immunity? | These sources could imply a waiver. | Implied waivers are not effective; only express waivers count. | Non-congressional sources do not create a waiver; not controlling. |
| Does reciprocity under the PVA exist under Ecuadorian law, allowing suit? | Evidence insufficient to prove reciprocity. | Reciprocity not established based on the submitted materials. | Remand to determine reciprocity under Rule 44.1; uncertainty remains. |
Key Cases Cited
- Taghadomi v. United States, 401 F.3d 1080 (9th Cir. 2005) (PVA scope and reciprocity interpretation guided by admiralty principles)
- United States v. United Continental Tuna Corp., 425 U.S. 164 (U.S. 1976) (PVA/SAA/FTCA interplay; reciprocity requirement applies across waivers)
- Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (U.S. 1995) (nexus and locality tests for maritime tort jurisdiction)
- Thomason v. United States, 184 F.2d 105 (9th Cir. 1950) (PVA scope—damages arising from operation of a public vessel)
- Canadian Aviator, Ltd. v. United States, 324 U.S. 215 (U.S. 1945) (PVA extends to negligence of public-vessel personnel in operation)