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November 14, 1980


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 United States.

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 defenses.*fn1

The United States filed a third party complaint against the Chicago Park District and Andre Murphy, alleging that the District owned, operated and maintained the Breakwater Light, and had agreed to hold the Coast Guard harmless from any alleged negligence in maintenance or operation of the Breakwater Light in a certain agreement dated March 16, 1966 and known as the Private Aid to Navigation Application (hereinafter referred to as "Application"). The Chicago Park District answered and admitted that it owned, operated, and maintained the Wilson Avenue Breakwater and the Breakwater Light, and alleged that the United States neither owned, operated, nor maintained either the Breakwater or the Breakwater Light.

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. . . .
  (emphasis added)

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 ...

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