The Ninth Circuit Court of Appeals just handed down a decision relating to the federal government's liability for suspected drug smugglers' vessels, damaged during the law enforcement investigation. The case is Tobar v. United States and the opinion can be found here.
The U.S. Coast Guard suspected an Ecuadorian fishing boat of illicit activities. With authorization of the Ecuador government, the Coast Guard boarded the boat, searched for drugs and towed the boat to Ecuador. The crew brought various tort claims against the U.S. government.
The government argued that it was immune from the claims of Ecuadorian citizens.The trial court agreed.
On appeal, the Ninth Circuit found that the United States had waived sovereign immunity under the Public Vessels Act. Under that Act, the United States does allow for citizens of foreign countries to bring claims in federal court if their own country would give a forum to a United States citizen. This is called reciprocity. So, the litigants put forth evidence of what Ecuador law would be if an American brought the same damage suit in its courts. The Ninth Circuit found that Ecuador would give a forum.
The government then sought to avoid liabilty by arguing that the discretionary function exception to the Federal Tort Claims Act barred liability. If the government has the discretion to act or not act, then liability cannot be found. But, the Public Vessels Act does not have an explicit discretionary function exception, like the FTCA does. The Ninth Circuit, and other circuits, have read into the Public Vessels Act, a discretionary function exception and the Ninth Circuit followed that logic here.
Finding that the government did not have discretion to NOT pay damage claims, the Ninth Circuit remanded the matter to the trial court for a trial.
I don't see any circuit splits, but the Supreme Court may be interested in a court-inserted exception to a statute. Stay tuned.
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