Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge WILKINSON and Judge SHEDD joined.
OPINION
This appeal arises out of the death of Seaman Freddie N. Porter, Jr. (“Porter”), who was killed during a Navy training exercise when his rigid-hull inflatable boat (“RHIB”) collided with the WILLIAM E. POOLE
1
tug as it was pushing an eight-barge flotilla up the James River. Claimant-Appellee Cassita Massiah (“Massiah”), as personal representative for her son Porter’s estate, brought a wrongful death suit against the tug owner, Plaintiff-Appellant Vulcan Materials Company (‘Vulcan”). Vulcan, in turn, sought contribution from the United States as co-tortfeasor. The district court awarded $1,250,000 in dam
I.
A.
We recount the relevant facts as found by the district court. Nineteen-year-old Porter, a land-based supply clerk, volunteered to attend a two-week coxswain course. On October 11, 2007, he and fellow Navy personnel departed from the United States Navy’s Little Creek Amphibious Base (“Little Creek”) in five RHIBs to complete the course’s final training exercise, which provided the students with an opportunity to practice navigating small vessels at night. Before departing Little Creek that afternoon, each RHIB’s crew verified the proper functioning of its boat’s running lights. The RHIBs — with call-signs Tango-1, Tango-2, Tango-3, Sierra Bravo, and Sierra Charlie — then navigated up the James River to Jordan Point, where the crews disembarked, had dinner, and waited for nightfall.
After darkness fell, the RHIBs’ crews “conducted another pre-operation inspection, and again verified that all lights on the boats — including an all-around white light mounted next to the radar dome on the aft mast, and a set of red and green running lights mounted forward in the RHIBs — were functioning properly.” J.A. 1095. Porter boarded his RHIB, Tango-2, and took the forward lookout position, while a fellow student in the course, Petty Officer Esteban Angeles, piloted the boat. Petty Officer Albert Bollinger acted as the boat’s safety observer and qualified coxswain.
While the Navy RHIBs were making their way back down the James River that evening, Captain Rondy Wooldridge was maneuvering his tug, the WILLIAM E. POOLE, upriver toward Richmond. The tug had left Norfolk earlier that day pushing a flotilla of six barges. With thirty-three years of experience navigating the James, Captain Wooldridge had made similar trips “thousands of times,” J.A. 1096, and was doing so this time as a Vulcan employee.
Approximately one hour before nightfall, Captain Wooldridge instructed his deckhand, Joseph Christensen (“Christensen”), to position and illuminate the flotilla’s running lights. Christensen placed a green light on the starboard (right) side of the flotilla, a red light on the port (left) side of the flotilla, and a flashing amber light as close to the center as possible.
After passing under the James River Bridge, the POOLE stopped at Hog Island and picked up two additional barges. The final eight-barge flotilla configuration comprised a forward row of three barges, a middle row of three barges, and an aft row of two barges (in the center and starboard positions), with the POOLE positioned behind the aft center barge. Because each barge measured nearly 200 feet long, the flotilla extended about 585 feet in front of the POOLE. Since the barges were empty, their decks rose approximately twelve feet above the water line. This arrangement created a blind spot extending approximately 600 feet in front of the barges. From their perch in the POOLE’s wheelhouse, Captain Wooldridge and Christensen could not see the river for some distance in front of the flotilla, much like a
Christensen rearranged the flotilla’s running lights to account for the new configuration. With the lights in place, the POOLE departed Hog Island around 10:00 p.m. and continued up the river toward Jamestown Island. Captain Wooldridge was at the helm and Christensen was standing lookout with him in the wheelhouse. On that particular night, “there was little if any ambient light,” and “the shores, the water, and the sky were dark.” J.A. 1098. It was “windy and the water was choppy, with swells of one (1) to two (2) feet” that “caused clutter on the POOLE’s radar, making it difficult to see objects with small radar returns — such as the RHIBs — on the radar screen.” Id.
The James River forms an “S-curve” between Hog Island and Jamestown Island. Although the river is more than a mile wide throughout this area, the shipping channel is narrow — only 300 feet across. As the POOLE cleared the final turn in the S-curve and continued upriver toward navigational buoys 53 and 54, the Navy RHIBs were traveling downriver toward the same buoys.
The crew onboard Tango-2 noticed, but could not identify, a white light in the direction of the buoys. The light turned out to be the tug’s spotlight, which Captain Wooldridge left illuminated on the port bow of the flotilla as he traveled upriver. Perceiving the light ahead, Tango-2’s safety inspector, Bollinger, instructed the boat’s driver, Angeles, to slow down and assess the situation before proceeding. Sierra Bravo’s crew observed Tango-2 slow down and did the same. Both boats “drifted in the shipping channel with their bows pointed south while their crews tried to make out the source of the light.” J.A. 1098. Petty Officer Julio Rodriguez Vargas, who was piloting Sierra Bravo, noticed a large object on his radar but could not identify it and did not inform Tango-2 of his observations. Although Tango-2 was also equipped with radar, no one aboard Tango-2 used it: “Angeles, who was in the operator’s chair, did not know the RHIB was equipped with radar, and Bollinger, the boat’s safety observer, did not know how to use it.” J.A. 1099. The other RHIBs farther downstream had seen the same light and consequently moved to the side of the shipping channel, eventually identifying the light as belonging to a tug. One of the instructors testified that there was radio chatter among the RHIBs about a tug in the river, but the Tango-2 crew did not recall hearing anything over the radio.
Before Tango-2 and Sierra Bravo could identify the source of the white light, the front of the POOLE’s flotilla “emerged from the darkness on their port side.” Id. Sierra Bravo avoided collision with the barge, but “Tango-2 was not so lucky.” Id. Petty Officers Angeles and Bollinger leapt from the RHIB and ultimately swam their way to safety, but Seaman Porter did not survive the accident. His body later washed ashore, and an autopsy confirmed he sustained a fatal blow to the head from a tug propeller. The POOLE’s crew testified that, while they had observed the other RHIBs pass the flotilla that night, they were completely unaware they had hit Tango-2 until the following day, when they were contacted by the Coast Guard.
Porter was survived by his mother (Massiah), father, and seven siblings. Shortly after Porter’s death, the United States made a death gratuity payment to Massiah in the amount of one hundred thousand dollars ($100,000) and reimbursed her for Porter’s funeral and burial expenses, in the amount of seven thousand twenty dollars ($7,020).
In August 2008, Vulcan, as owner of the POOLE, filed a complaint for exoneration from, or limitation of, liability for the collision pursuant to the Limitation of Liability Act, 46 U.S.C. § 30501-30512. 2 Massiah, as executor of her son Porter’s estate, answered Vulcan’s complaint and submitted an admiralty claim against it alleging negligence. Vulcan, in turn, filed a third-party complaint against the United States pursuant to the Public Vessels Act (“PVA”), 46 U.S.C. § 31101, and the Suits in Admiralty Act (“SAA”), 46 U.S.C. § 30901, alleging that the Navy was liable for the accident and seeking contribution for any damages owed to Porter’s estate.
The United States answered the third-party complaint and filed a counterclaim against Vulcan demanding a judgment for “repairs to or replacement of’ the Tango-2, the cost of providing medical care to the other crewmen in the Tango-2, and the cost of death benefits paid to Porter’s estate. J.A. 71. The government then moved to dismiss Vulcan’s contribution claim on the ground that it had not waived its sovereign immunity for contribution claims brought by a defendant held liable to a servieemember for injuries incurred incident to service, relying on the Supreme Court’s decisions in
Feres v. United States,
At the conclusion of trial, the district court found in an oral ruling and subsequent written decision that both the United States and Vulcan were negligent on the night of October 11, 2007, and that “Porter’s death was proximately caused by the negligence of both the United States and Vulcan.” J.A. 1101. The court found the United States negligent for having “operated an unseaworthy vessel by manning Tango-2 with an incompetent crew.” Id. It based its negligence finding on the inexperience of the sailors, the fact that Tango-2 traveled downriver on the port side of the channel in violation of Inland Navigation Rule 9’s (“Rule 9”) requirement that vessels stay on the starboard side, the safety observer’s decision to stop the boat in the middle of the shipping channel in further violation of Rule 9, and the fact that Tango-2 was equipped with radar equipment that its crew either did not know about or did not know how to use.
The district court determined Vulcan was at fault because it failed “to post a proper lookout,” as required by Inland Navigation Rule 5 (“Rule 5”).
Id.
at 1102. The court reasoned that, given the conditions on the night in question and the
Having found Vulcan negligent, the court next addressed whether it was entitied to limitation of liability. By statute, “the liability of the owner of a vessel for any claim, debt, or liability ... shall not exceed the value of the vessel and pending freight” if the negligent act or condition occurred “without the privity or knowledge of the owner.” 46 U.S.C. § 30505. Observing that a shipowner seeking limitation of liability bears the burden of proving a lack of privity or knowledge, the court found that Vulcan “should have known that a flotilla traveling on the James River, under the circumstances that prevailed on October 11, 2007, would need a lookout on the bow of the forward barge” and was responsible for “mak[ing] provisions for the availability of such lookout.” J.A. 1105. The court held that Vulcan was therefore not entitled to limitation of liability.
The court apportioned 80 percent of the fault to the government and 20 percent to Vulcan, and awarded a total of $1,250,000 in damages to Porter’s family members. 3
In its written decision, the court addressed Vulcan’s claim against the United States for contribution. The government argued that Vulcan’s claim was barred by the
Feres-Stencel Aero
doctrine, which insulates the United States from liability for third-party claims seeking indemnification or contribution for damages paid to a servicemember injured incident to service.
See Feres,
For these reasons, the district court granted the United States’ motion to dismiss Vulcan’s contribution claim, and dismissed the United States as a party to this action. It then entered judgment against Vulcan for the full amount of damages. This appeal followed.
II.
On appeal, Vulcan advances two main arguments. It first contends that the district court erred by finding Vulcan negligent for failing to post a lookout at the front of the flotilla on the night of October 11, 2007. Vulcan next argues that, even if the district court did not err in its negligence finding, it nevertheless erred by holding that the Feres-Stencel Aero doctrine barred Vulcan’s third-party contribution claim against the United States for tort damages paid by Vulcan to a service-member killed in the course of military service. Vulcan specifically contends that this court’s decision in Ionian Glow governs the outcome here and permits Vulcan to seek contribution from the United States for any tort damages owed to Porter’s estate. We address each argument in turn.
A.
We begin by considering Vulcan’s challenge to the district court’s finding that it negligently failed to post a proper look-out, as required by Rule 5. Vulcan’s primary contention is that the district court erred as a matter of law by misapprehending and misapplying Rule 5’s legal standard. It also claims the district court “made insufficient findings to support a causation finding” in this case, Appellant’s Br. at 38, abused its discretion by failing to apply an adverse inference against the government for its alleged spoliation of evidence, and misapplied the rule regarding which party carried the burden of proof as to alleged violations of the Inland Navigation Rules. We treat a district court’s findings of negligence as findings of fact renewable under Fed.R.Civ.P. 52(a),
Bonds v. Mortensen & Lange,
1.
Vulcan’s primary challenge to the district court’s negligence holding is that the court misapplied the legal standard articulated under Rule 5. Rule 5 requires vessels to post “a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full
As evidence that the court misapplied the proper legal standard, Vulcan first cites the court’s reliance on testimony provided by Vulcan’s expert witness, Captain Robbins, urging that “the court badly misunderstood his clear testimony.” Id. at 33. Captain Robbins testified that the decision as to what amounts to a proper lookout, as required by Rule 5, is informed by the following conditions: (1) “visibility,” which decreases when it is a “dark night,” J.A. 838-39, (2) the existence of a “blind spot” or a “dead zone,” J.A. 842, (3) navigation through a “narrow channel,” J.A. 842-43, and (4) the presence of “small boat traffic,” J.A. 845. Captain Robbins further testified that, in his view, the conditions on the night of October 11, 2007, did not require the posting of an additional lookout. The district court, weighing the same factors as Captain Robbins, reached a different conclusion. It found that the presence of all the above-mentioned conditions in fact counseled in favor of requiring the posting of a lookout forward that evening. The court reached this conclusion based on its findings that
the night was dark and windy; the water was choppy, which caused clutter on the POOLE’s radar and made it difficult to see small boat traffic on the radar screen; the POOLE was in a narrow channel and, because of the eight barges it was pushing, had a significant blind spot; and Captain Wooldridge testified that small boat traffic is common on the James River.
J.A. 1102; see also J.A. 1083 (determining, as factfinder, that “all of the factors which even the defendant’s expert agreed should be considered” were present, “including a dark night, bad weather, ... the narrow channel, ... the blind spot, ... and the presence of small traffic”). Record evidence supports these findings. Despite Vulcan’s argument to the contrary, the district court’s disagreement with Captain Robbins’ assessment does not mean it misunderstood his testimony or misapprehended Rule 5’s requirements. As factfinder, the court simply reached an alternative, reasonable conclusion based on the weight it afforded the evidence presented.
In its amicus brief, the American Waterways Operators (“AWO”) 4 also challenges the district court’s treatment of Captain Robbins’ testimony, claiming that the court erred by relying on the factors articulated by Captain Robbins as opposed to those listed in the legislative history of Rule 5. That history states that when considering whether to post an additional lookout, “Mull account shall be taken of all relevant factors, including but not limited to the [1] state of the weather, [2] conditions of visibility, [3] traffic density, and [4] proximity of navigational hazards.” S.Rep. No. 96-079 at 7-8, reprinted in 1980 U.S.C.C.A.N. 7068, 7075 (1980). AWO contends that “[a]ll vessels have blind spots so it is incongruous to find, as the district court seemingly did in this case, that a ‘blind spot’ is an ‘obstruction’ or restriction of visibility that Congress considers to be a circumstance requiring an additional lookout on the end of the flotilla.” Amicus Br. at 6.
As further evidence that the court misapplied the proper legal standard under Rule 5, Vulcan points to the court’s observation that, from the wheelhouse, the Captain and his deckhand were “attentive” and had “expansive,” “all around views” of the flotilla’s “operating environment.” Appellant’s Br. at 31 (citing J.A. 1084, 1097, 1102). These findings, Vulcan contends, establish that an additional lookout was unnecessary, because the tug’s two lookouts “would have seen any vessel that was displaying proper lights” that evening. Id. Relatedly, Vulcan argues that the purpose of Rule 5 is to avoid the “risk of collision.” Id. As such, Vulcan contends, the duty imposed on the POOLE by Rule 5 was “to keep a lookout to see the other vessel well before it got into the blind spot” and created a risk of collision. Id. (emphasis in the original). According to Vulcan, the district court’s fact findings established that the tug’s two lookouts were properly posted and would have seen any properly-lit vessel long before it passed into the tug’s blind spot and created a risk of collision, obviating the need for posting a lookout forward.
Vulcan’s argument relies on an incomplete version of the facts. Additional fact findings made by the district court indicate the conditions were such that the two lookouts in the wheelhouse would not necessarily have seen Tango-2, or another vessel, before it passed into the tug’s blind spot. Specifically, the court found that “the Captain’s and his deckhand’s visions were impaired,” not just by the significant blind spot created by the flotilla, but also by the fact that they were “negotiating a difficult turning maneuver with this large flotilla in a narrow channel on a dark night in choppy waters.” J.A. 1103. Their impaired vision was evidenced by the “Captain [keeping] his searchlight activated for an extended period of time” and the fact that neither lookout “saw Tango-2, although they had no difficulty seeing Tango-1, Tango-3, Sierra Charlie, and what turned out to be Sierra Bravo, which they thought was a fishing vessel.” Id. With their vision impaired, the tug’s lookouts would not have necessarily seen a properly-lit vessel before it passed into the tug’s blind spot. 5
2.
In addition to challenging the district court’s application of Rule 5, Vulcan attacks the court’s negligence ruling on other grounds.
i.
First, Vulcan contends that the court “made insufficient findings to support” its conclusion that Vulcan’s failure to keep a proper lookout was a proximate cause of the collision. Appellant’s Br. at 38. We find this argument unavailing because, at bottom, it is simply a disagreement with the district court’s interpretation of the facts. Vulcan believes that, based on the record evidence and the court’s findings, only one possible inference may be drawn: if the lookouts did not see Tango-2, it was because “Tango-2 was not properly displaying its lights.” Appellant’s Br. at 41. While another fact-finder might have reached the conclusion Vulcan advocates, the district court’s determination to the contrary is not clearly erroneous. The court repeatedly expressed the view that the RHIBs’ running lights were working properly. See, e.g., J.A. 1095 (finding that, before departing Jordan Point, the Navy crews “verified that all lights on the boats — including an all-around white light mounted next to the radar dome on the aft mast, and a set of red and green running lights mounted forward in the RHIBs — were functioning properly”). We find that there was sufficient evidence from which the court could conclude that the boats were properly lit and that any alleged obstruction or malfunction of the lights did not contribute to the accident.
ii.
Vulcan next argues that the district court erred by failing to apply an adverse inference against the government for its alleged destruction of evidence. Vulcan specifically claims that the Coast Guard improperly removed the light bulbs from Tango-2’s red and green running lights during its investigation of the accident. Those bulbs, according to Vulcan, were “the only evidence that could show whether Tango-2’s lights conformed to Inland Rule 22(c).” Appellant’s Br. at 45.
The application of an adverse inference “requires a showing that the party knew the evidence was relevant to some issue at trial and that his
willful conduct
Here, the district court found “no evidence of spoliation of the evidence on the part of the Navy.” J.A. 1073. In so finding, the court did not abuse its broad discretion. Record evidence established that the Coast Guard inspectors, not Navy personnel, removed the bulbs, and that the Navy personnel did not have control over the Coast Guard inspectors. This fact supports the conclusion that the loss or destruction of evidence was not the result of the Navy’s willful conduct.
See Hodge,
iii.
Finally, Vulcan maintains that the court did not properly apply the
Pennsylvania
rule. The
Pennsylvania
rule requires that, in order to avoid liability, a vessel that violates “a statutory rule intended to prevent collisions” must prove that the violation could not have contributed to the collision.
The Pennsylvania,
Vulcan argues that the
Pennsylvania
rule should have been applied against the government with regard to its alleged violation of Inland Rule 23. It specifically asserts that the court found “the Tango-2’s white light was partially obstructed” in violation of Inland Rule 23, and that, under the
Pennsylvania
rule, the Navy’s statutory violation required the district court to shift the burden to the United States to prove that the obstructed light could not have played any role in the collision. Appellant’s Br. at 42. Contrary to Vulcan’s characterization, however, at several points in the record, the district court explicitly found that the RHIB’s running lights were properly lit, did not suffer from any “impairment,” and were not a factor in the collision.
See
J.A. 1035, 1053-54, 1095. We therefore see no reason to alter the court’s apportionment of fault determination.
Cf. Hellenic Lines, Ltd. v. Prudential Lines, Inc.,
B.
We next consider Vulcan’s challenge to the district court’s dismissal of its contribution claim for lack of subject matter jurisdiction. The district court found that the
Feres-Stencel Aero
doctrine applies to Vulcan’s action and bars its attempt to obtain contribution from the United States for damages as to which the government has not waived its sovereign immunity. We review de novo a district court’s dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction.
Welch v. United States,
By way of background, the
Feres-Stencel Aero
doctrine arises in the context of the United States as a sovereign. It is well established that the United States cannot be held liable in tort unless a claimant demonstrates that his right to sue falls within the terms of a waiver of sovereign immunity.
See United States v. Mitchell,
Vulcan filed its third-party complaint against the United States under the Public Vessels Act (“PVA”), 46 U.S.C. §§ 31101-13, and the Suits in Admiralty Act (“SAA”), 46 U.S.C. §§ 30901-30918. These provisions waive the government’s sovereign immunity “for causes of action arising out of the operation of vessels owned by or operated for the United States.”
Manuel v. United States,
However, while the PVA and SAA establish a broad waiver of sovereign immunity for admiralty-related claims against the United States, this waiver is not without limits. One such limit was created by
Feres v. United States,
in which the Supreme Court barred tort claims against the United States brought by servicemem
Feres’s
holding was later extended to bar third-party suits against the government seeking indemnification for damages owed to servieemembers or their estates. In
Stencel Aero,
a National Guard officer suffered injuries when his ejection equipment on a military aircraft malfunctioned during an in-flight emergency.
The
Stencel Aero
Court offered three rationales for preserving the United States’ immunity to tort actions involving injuries to military personnel, whether brought by the soldier directly or by a third party. First, the relationship between the government and its military personnel is “distinctively federal in character” and requires a uniform federal remedy that does not vary upon the situs of the incident.
Id.
at 671,
The government argues that Feres and Stencel Aero control here. It places particular emphasis on the “military discipline” rationale in arguing for the application of the Feres-Stencel Aero doctrine to all suits involving servicemen injured incident to service, including suits brought in admiralty.
Vulcan, on the other hand, relies on our precedent in
Ionian Glow
for its argument that
Feres-Stencel Aero
does not apply in this context.
Ionian Glow
allowed a private vessel owner to recover from the government for payments it made to three servicemen injured in a mutual fault colli
The interplay between the Feres-Stencel Aero doctrine and Ionian Glow is at the heart of this appeal. The context of our jurisprudence leading up to Ionian Glow and Supreme Court precedent since that decision informs our analysis.
1.
We turn first to a brief examination of the line of cases leading up to this court’s decision in
Ionian Glow.
Damages in maritime collisions were traditionally apportioned according to the so-called divided damages rule. Under this rule, the percentage of fault was not litigated: each party to the collision “recover[ed] from the other one-half of its provable damages and court costs.”
Weyerhaeuser S.S. Co.,
In Weyerhaeuser, a collision between a dredge owned by the United States and a vessel owned by Weyerhaeuser resulted in injury to a civilian government employee onboard the dredge. The employee recovered compensation from the government under the Federal Employees’ Compensation Act (“FECA”), and tort damages from Weyerhaeuser. Weyerhaeuser filed a third-party suit seeking contribution from the government under the divided damages rule for the government’s share of the employee’s tort recovery.
The government challenged Weyerhaeuser’s inclusion of any part of the tort damages paid to the employee on the ground that FECA’s exclusive liability provision, 5 U.S.C. § 8116(c), prevented the employee from suing the government directly. By its express terms, § 8116(c) prohibits actions against the United States by an “employee, his legal representative, spouse, dependents, next of kin [or] any other person otherwise entitled to recover damages from the United States ... because of the [employee’s] injury or death.” Third parties such as Weyerhaeuser, the government argued, were included within the general phrase “anyone otherwise entitled to recover damages.”
Id.
at 600,
The Supreme Court rejected this argument and concluded that FECA’s exclusive liability provision had been intended to govern only the relationship “between the Government on the one hand and its employees and their representatives or dependents on the other.”
Id.
at 601,
Twelve years later, in
United States v. Reliable Transfer Co., Inc.,
In so holding, this court found the admiralty/non-admiralty distinction determinative. It reasoned that, had Ionian Glow’s suit been an indemnification action brought under the FTCA, it would be barred by the Feres-Stencel Aero doctrine. However, because it was a mutual fault collision case in admiralty, the Weyerhaeuser rule applied. Id.
2.
Approximately a year after
Ionian Glow,
the Supreme Court decided
Lockheed Aircraft Corp. v. United States,
While rejecting the relevance of any admiralty/non-admiralty distinction, the
Lockheed
Court reaffirmed the continuing vitality of the
Feres-Stencel Aero
doctrine in suits involving military affairs. In response to the dissent’s view that
Stencel Aero
involved a similar indemnity claim, the majority distinguished
Stencel Aero
as turning “primarily on the
military nature
of the action” and raising the question of “whether the Government’s waiver of sovereign immunity in the [FTCA] applied to an indemnity action based on an injury to a
serviceman." Id.
at 198 n. 8,
The
Lockheed
Court’s emphasis on the “military nature of the action” reinforces its repeated citation to the “military discipline” rationale as the primary support for
Feres
and
Stencel Aero.
As outlined in
United States v. Shearer,
[although the Court in Feres based its decision on several grounds ... “Feres seems best explained by the ‘peculiar and special relationship of the soldier to his superior, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.’ ”
Id.
at 57,
3.
In light of the Supreme Court’s Lockheed decision and its subsequent emphasis on the military discipline rationale supporting the Feres-Stencel Aero doctrine, we agree with the district court that Ionian Glow does not control our analysis. We reach that conclusion for several reasons.
By contrast, the litigation of liability here resulted in numerous Navy witnesses being called into court to testify “about their own actions and those of fellow servicemen.” J.A. 1110-11. This is exactly what the
Feres-Stencel Aero
doctrine was designed to avoid.
See Stencel Aero,
Vulcan counters that the government in Ionian Glow stipulated its percentage of fault only after numerous depositions were taken of Navy officers and personnel at the discovery stage. “If requiring military witnesses to testify about Navy negligence undermines military discipline,” Vulcan argues, “then that factor was surely present in Ionian Glow.” Appellant’s Br. at 21.
Vulcan’s argument represents only a partial understanding of the “military discipline” rationale. The Supreme Court is concerned not only with servicemembers testifying as to each other’s decisions and their superiors’ orders, but also with a civilian court sitting in judgment of military decisions.
See Shearer,
As we have noted, we find it significant that Supreme Court precedent since
Ionian Glow
has recognized the primacy of military discipline as the rationale underlying
Feres-Stencel Aero. See, e.g., Shearer,
The Supreme Court has provided additional substantive guidance as well. Its
As a practical matter, focusing on the nature of the action as opposed to its situs makes particular sense in the context of a military with several branches. Refusing to apply Feres-Stencel Aero in admiralty cases alone would have the arbitrary consequence of bearing more harshly on the United States Navy and Marines in comparison to their sister branches of the armed forces, who primarily engage in non-naval activities.
For these reasons, we find that the Feres-Stencel Aero doctrine applies to the present dispute involving a serviceman killed incident to service. To the extent that Ionian Glow relied on the distinctive nature of accidents occurring in the admiralty context, the Supreme Court’s subsequent decision in Lockheed instructs that the “military nature” of the tort action is the more compelling inquiry. Furthermore, unlike in Ionian Glow, the “military discipline” rationale underlying the Feres-Stencel Aero doctrine is fully implicated here and counsels in favor of finding that the government has not waived its sovereign immunity. We therefore affirm the district court’s order granting the government’s motion to dismiss Vulcan’s third-party claim against the United States due to lack of subject matter jurisdiction.
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
Notes
. Although the tug’s name is the "WILLIAM E. POLLE,” the district court's memorandum opinion and the parties' briefs refer to the tug as the "WILLIAM E. POOLE." For the sake of consistency, we do the same.
. The Act allows a shipowner to limit his liability for any "injury by collision” occurring "without [his] privity or knowledge” to the "value of the vessel and pending freight.” 46 U.S.C. § 30505. Under the Act, and the corresponding Federal Rules of Civil Procedure for Admiralty and Maritime Claims ("Admiralty Rules”), a shipowner may seek to limit his liability by filing suit in a district court within six months of receiving notice of a claim related to a marine casualty.
Id.
at § 30511; Admiralty Rule F(l). After depositing with the court an amount of money, or approved security, equal to his interest in the vessel and the pending freight, "all claims and proceedings against the owner related to the matter in question shall cease.”
Id.
at 30511(b), (c); Admiralty Rule F(l). The district court must then determine whether the shipowner is entitled to a limitation of liability.
Hellenic Lines, Ltd. v. Prudential Lines, Inc.,
. The court declined to enter judgment at the time of its oral findings, reserving decision on whether the government was protected from liability under either the Feres-Stencel Aero doctrine or the discretionary function exception. In its subsequent written decision, the court reiterated the bases for its negligence finding but did not discuss the government’s argument that its selection of personnel for the training mission was protected by the discretionary function exception. Because we find that the Feres-Stencel Aero doctrine applies here, we need not reach the government’s alternative discretionary function argument.
. AWO is "the national trade association for the inland and coastal tugboat, towboat, and barge industry.” Amicus Br. at 1. AWO has 350 member companies and represents “the largest segment of the U.S.-flag domestic fleet.” Id.
. Vulcan also contends that where, as here, "one ship has, by wrong maneuvers, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong and has not been maneuvered with perfect skill and presence of mind.” Appellant’s Br. at 33 (quoting
The Bluejacket,
. Vulcan further asserts that the district court erred by requiring it to prove, pursuant to the
Pennsylvania
rule, that its failure to post a lookout could not have been a contributing cause of the collision. It specifically contends that the
Pennsylvania
rule applies “only to violations of statutes that delineate a clear legal duty,” and because the duty to keep a proper lookout “calls for the exercise of professional judgment and assessment, Rule 5 should not be subject to the
Pennsylvania
presumption.” Appellant’s Br. at 38. It is not apparent to us, however, that the district court required Vulcan to prove that the fail
. The claimant in
Feres
sought recovery from the United States under the Federal Tort Claims Act ("FTCA”). The FTCA effects a limited waiver of the United States' sovereign immunity for claims involving "personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). This court and others have since found that, in addition to barring suits brought pursuant to the FTCA,
Feres
applies equally to admiralty tort claims brought under the SAA and the PVA by servicemen injured while on duty.
See, e.g., Blakey v. U.S.S. Iowa,
. In Ionian Glow, this court did not discuss the demise of the divided damages rule announced earlier in Reliable Transfer or that decision’s impact, if any, on the Supreme Court’s earlier Weyerhaeuser holding. The government contends, therefore, that "Ionian Glow’s reliance on Weyerhaeuser and the divided damages rule renders it inapposite to the case at bar,” because ”[a]fter Reliable Transfer, Vulcan can no longer invoke the 'full scope’ of that rule as the basis for its recovery from the United States.” Government’s Br. at 29-30. We need not address the government’s argument on this point, however, because the Supreme Court’s Lockheed opinion, decided after Ionian Glow, resolves the issue before us.