The opinion of the court was delivered by: Leighton, District Judge.
This cause involves a tragic boating accident on Lake Michigan
near the shores of the city of Chicago, and comes before this
court on defendants' motion for summary judgment. For the
following reasons, the motion is granted.
On September 7, 1978, Phillip Fred Teich was a passenger on a
speedboat, allegedly owned and operated by Elizabeth Maniscalo
and Andre Murphy, which was proceeding in a generally
southeasterly direction on Lake Michigan near Chicago's shores,
on the west side of the Montrose/Wilson beach pier, north of the
landfill from which the pier extends and south of the pier's
horseshoe curb. The boat collided with the Montrose/Wilson beach
pier, and Phillip was thrown from the boat, suffering fatal
injuries. It is alleged that at all pertinent times, he was
exercising ordinary care for his own safety.
Plaintiff Kurt Teich is Phillip's father and the duly appointed
administrator of his estate. Jurisdiction is predicated on the
Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. Defendants
are the United States Government, the United States Coast Guard,
and the Army Corps of Engineers (hereinafter collectively
referred to as the "United States"). The Chicago Park District
and Andre Murphy were sued as third party defendants by the
Count I claims that the United States is guilty of having
committed various negligent acts concerning the maintenance and
supervision of a navigational aid known as the Wilson Avenue
Breakwater Light (hereinafter referred to as "Breakwater Light")
which was located at the Montrose/Wilson beach pier. This count
also claims that the United States failed to properly supervise
and take action against the Chicago Park District regarding the
performance of a certain agreement between the United States and
the Chicago Park District concerning the Breakwater Light. Count
II contains allegations of wilful and wanton misconduct on the
part of the United States, and seeks punitive damages. Count III
seeks to recover burial expenses, and Count IV seeks to recover
damages for Phillip's pain and suffering up to his death. The
answer of the United States denies all material allegations
except the fact of Phillip's death, and pleads affirmative
The motion of the United States for summary judgment relies on
the Chicago Park District's admission that it and not the United
States owns and is responsible for the Breakwater Light. Because
the navigational aid is private rather than public, the United
States argues, it has no duty to supervise the Park District's
maintenance and operation. In addition, the United States
stresses that the Park District's application stated: "The
applicant agrees to save the Coast Guard harmless with respect to
any claim or claims that may result arising from the alleged
negligence of the maintenance or operations of the approved
aid[s]." Application § 11B. Plaintiff's answer to the motion
claims that notwithstanding the agreement to maintain aids to
navigation, the United States still owes a non-delegable duty of
exercising care during the course of the operation and
maintenance of aids to navigation such as the Breakwater Light.
Finally, the reply of the United States reiterates that the
Breakwater Light is a private, rather than public aid to
navigation, for which operation the United States cannot be held
responsible. No response is made to plaintiff's argument that the
United States is charged with a non-delegable duty.
Pertinent statutory provisions are those governing the Coast
Guard's duties and powers. Section 81 of 14 U.S.C. authorizes
public aids to navigation: "In order to aid navigation and to
prevent disasters, collisions, and wrecks of vessels and
aircraft, the Coast Guard may establish, maintain and operate"
aids to navigation. (emphasis added) Section 83 requires everyone
with the exception of the armed services to obtain permission
from the Coast Guard prior to establishing or maintaining aids to
navigation. Finally, 14 U.S.C. § 2 provides in relevant part:
The Coast Guard shall enforce or assist in the
enforcement of all applicable Federal laws on and
under the high seas and waters subject to the
jurisdiction of the United States; shall administer
laws and promulgate and enforce regulations for the
promotion of safety of life and property on and under
the high seas and waters subject to the jurisdiction
of the United States covering all matters not
specifically delegated by law to some other executive
department; shall develop, establish, maintain, and
operate, with due regard to the requirements of
national defense aids to maritime navigation. . . .
Plaintiff apparently contends that the mandatory language of
Section 2 as set out above imposes a non-delegable duty on the
Coast Guard to establish, maintain, and operate aids to
navigation, and that no authority is granted to the United States
to delegate this responsibility to local entities. The clear
weight of authority, however, requires this court to conclude
otherwise. The question presented by this set of circumstances is
not, as plaintiff erroneously claims, one of delegation, but
rather, one of discretion. The precise issue to be resolved
appears to be one of first impression, and succinctly stated, it
is: what duty, if any, does the United States (Coast Guard) owe
to public users of a private aid to navigation?
Preliminary, as used herein, the term "private aid to
navigation" includes all marine aids to navigation operated in
the navigable waters of the United States other than those
operated by the federal government or those operated in state
waters for private aids to navigation. Navigation and Navigable
Waters, 33 C.F.R. § 66.01-1(b) (1979). Clearly, the Breakwater
Light involved herein is such an aid; there is no dispute that it
is operated by the Chicago Park District in the navigable waters
of Lake Michigan.
As a further preliminary matter, it is helpful to set forth the
duty owed to public users of public aids to navigation. While the
Coast Guard may establish, maintain, and operate aids to maritime
navigation in accordance with 14 U.S.C. § 81, once it has
established such public aids it shall maintain and operate them
as provided by 14 U.S.C. § 2. Afran Transport Company v. United
States, 309 F. Supp. 650, 654 (S.D.N.Y. 1969), aff'd
435 F.2d 213 (2d Cir. 1970), cert. denied, 404 U.S. 872, 92 S.Ct. 72, 30
L.Ed.2d 116. Thus, the establishment and placement of aids to
navigation is a discretionary function vested in the Coast Guard.
Bearce v. United States, 614 F.2d 556, 560 (7th Cir. 1980),
cert. denied, ___ U.S. ___, 101 S.Ct. 112, 66 L.Ed.2d 44;
Gercey v. United States, 540 F.2d 536 (1st Cir. 1976), cert.
denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977). Once
the Coast Guard has exercised its discretion to establish an aid
to navigation, however, it is obligated to use due care to
maintain it. Indian Towing Co., Inc. v. United States,
350 U.S. 61, 69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955); Richmond Marine
Panama, S.A. v. United States, 350 F. Supp. 1210 (S.D.N.Y. 1972).
The duty when undertaken must be carried out without negligence.
Afran Transport, 309 F. Supp. at 654.
It cannot be disputed that establishment of private aids to
navigation is congressionally authorized. Pursuant to
14 U.S.C. § 83, no person, public body, or instrumentality, excluding the
armed services, may establish, erect, or maintain an aid to
navigation without permission of the Coast Guard. Afran
Transport, 309 F. Supp. at 654. In accordance with
14 U.S.C. § 85, the Secretary of Transportation is empowered to prescribe and
enforce rules and regulations relating to the establishment,
maintenance, and operation of private aids to navigation.
Navigation and Navigable Waters, 33 C.F.R. § 1.050-1 (1979).
In this case, plaintiff does not argue that establishment of
private aids to navigation is impermissible, nor does he argue
that the Chicago Park District's Application concerning the
Breakwater Light aid to navigation in some way failed to comply
with relevant regulations. Rather, plaintiff attempts to impose
vicarious liability on the United States (Coast Guard) for
allegedly negligent operation and maintenance of the Breakwater
Light, a private aid to navigation, and liability as ...