The opinion of the court was delivered by: CANNELLA
Defendant's motion to dismiss the complaint for lack of subject matter jurisdiction is granted. Fed. R. Civ. P. 12(b)(1).
On September 24, 1981, James Kleinschmidt, a vessel pilot duly licensed by the United States Coast Guard, was in control of the steamship SS Oceanic Independence ["Independence"]. While approaching Nawiliwili Bay in the Hawaiian Islands, the Independence ran aground and sustained serious structural damage.
On September 22, 1983, American Global Lines, Inc. ["Global Lines"], owner and operator of the Independence, submitted a claim to the Coast Guard in Honolulu in the amount of $5,500,554.80. On September 23, Global Lines commenced this action, claiming that its loss was due to negligence on the part of the Coast Guard in granting Kleinschmidt a pilot's endorsement for Nawiliwili Bay. Following some discovery, the United States moved to dismiss the complaint on the ground that the Court lacks subject matter jurisdiction over the claim.
I. Subject Matter Jurisdiction
Global Lines' complaint alleges that jurisdiction rests upon the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 ["SIAA"]. Alternatively, the complaint alleges jurisdiction under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ["FTCA"]. The two Acts are mutually exclusive for jurisdictional purposes. Section 745 of the SIAA states that "where a remedy is provided by this chapter it shall hereafter be exclusive of any other action [against the United States] by reason of the same subject matter." Section 2680(d) of the FTCA states that it "shall not apply to . . . [a]ny claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States." Therefore, there can be jurisdiction under only one Act.
For a tort claim to be considered maritime in nature, two requirements must be satisfied. First, the "wrong and injury complained of must have been committed wholly upon the high seas or navigable waters." Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972) (quoting The Plymouth, 70 U.S. 20, 3 Wall. 20, 35, 18 L. Ed. 125 (1866)); see also Victory Carriers, Inc. v. Law, 404 U.S. 202, 205, 30 L. Ed. 2d 383, 92 S. Ct. 418 (1971) ("The maritime tort jurisdiction of the federal courts is determined by the locality of the accident.") Second, the wrong must "bear a significant relationship to traditional maritime activity." Executive Jet Aviation, 409 U.S. at 268; Foremost Insurance Co. v. Richardson, 457 U.S. 668, 673-74, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982).
Global Lines claims that the Coast Guard was negligent in failing to follow its own examination procedures "when it tested and issued Kleinschmidt a pilot's endorsement for Nawiliwili Bay." Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss at 3, 83 Civ. 7012 (JMC) (filed S.D.N.Y. Sept. 26, 1985) ["Plaintiff's Opposition"]. That the claimed negligence may have occurred on land does not preclude admiralty jurisdiction. See Kelly v. United States, 531 F.2d 1144, 1146 (2d Cir. 1976); Sawczyk v. United States, 499 F. Supp. 1034, 1038 (W.D.N.Y. 1980). Claims in admiralty, however, must "implicate traditional concepts of maritime law such as seaworthiness, cargo damage, salvage, or the like." Keene Corp. v. United States, 700 F.2d 836, 844 (2d Cir. 1983).
There is no real dispute that Global Lines' claim is maritime in nature. Although the alleged negligence occurred on land, it manifested itself on navigable waters. In addition, the operation of the Independence clearly bears a relation to traditional maritime activity. Thus, Global Lines' exclusive remedy lies with the SIAA. See 46 U.S.C. § 745; Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1435-36 (9th Cir. 1983).
II. SIAA's Implied Discretionary Function Exception
Because Global Lines' exclusive remedy lies with the SIAA and the United States has moved to dismiss on the ground that the Coast Guard's actions constitute a discretionary function, the Court must decide whether a discretionary function exception may be implied in the SIAA. Although the Second ...