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HYUNDAI MERCHANT MARINE CO. v. UNITED STATES

May 31, 1995

HYUNDAI MERCHANT MARINE CO. LTD., POHANG IRON AND STEEL CO., LTD., THE ORIENTAL FIRE & MARINE INSURANCE CO., LTD., THE SHIN DONG-A FIRE & MARINE INSURANCE CO., LTD., DAEHAN FIRE, MARINE INSURANCE CO., LTD., INTERNATIONAL FIRE & MARINE INSURANCE CO., LTD., KORYO FIRE & MARINE INSURANCE CO., LTD., FIRST FIRE & MARINE INSURANCE CO., LTD., HAEDONG FIRE & MARINE INSURANCE CO., LTD., THE ANKUK FIRE & MARINE INSURANCE CO., LTD., HYUNDAI MARINE & FIRE INSURANCE CO., LTD., LUCKY INSURANCE CO., LTD., KOREA AUTOMOBILE FIRE & MARINE INSURANCE CO., LTD., Plaintiffs, against UNITED STATES OF AMERICA, Defendant.

Peter K. Leisure, U.S.D.J.


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge:

 This is an action under the Suits in Admiralty Act, 46 U.S.C. app. § § 741-52, by the owners of the Hyundai New World and parties related in interest (collectively, "plaintiffs") against the United States of America (the "Government"). Plaintiffs allege that the Hyundai New World ran aground off the coast of Brazil in 1987 as a result of the negligent publication and failure to update an inaccurate nautical chart by the Defense Mapping Agency (the "DMA"), an agency within the Department of Defense. The Government has moved to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

 BACKGROUND

 On October 5, 1994, 10 U.S.C. § 2798 ("Section 2798") was signed into law. Soon after Section 2798 was enacted, on November 7, 1994, the Government filed a motion to dismiss the instant action for lack of subject matter jurisdiction. It is well established that, in considering a motion to dismiss for want of subject matter jurisdiction, the Court must accept as true all material factual allegations in the complaint. See, e.g., Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992).

 Applying the above standard, the facts of this case are as follows. On March 31, 1987, the Hyundai New World grounded on a shoal as it sought to enter the Baia de Sao Marcos in Brazil resulting in the total loss of the vessel. In entering the Baia de Sao Marcos, the master of the Hyundai New World used DMA Chart 24271 (13th Ed.) ("Chart 24271") which did not accurately indicate the position of this shoal. Chart 24271 was published on April 23, 1983. The Chart states that it is a reproduction of Brazilian Chart 411 (2d Ed.), a chart produced by the Brazilian government based on surveys by the Brazilian Navy to 1974. *fn1" In addition to producing Chart 24271 and other charts, the Defense Mapping Agency Hydrographic/Topographic Center ("DMAHTC") publishes weekly Notices to Mariners which serve to update existing charts with new hydrographic information.

 In 1984, the Brazilian government performed new hydrographic surveys in the Baia de Sao Marcos. These hydrographic surveys indicated that the shoal on which the Hyundai New World later foundered had extended northward and eastward. As a result, water depths were now 14 to 17 meters in areas where they were indicated as 25 to 38 meters on Chart 24271. Prior to the grounding of the Hyundai New World, the DMAHTC received charts from the Brazilian government and notices from the British government which indicated these reduced water depths. The DMAHTC did not publish a Notice to Mariners conveying this information prior to the grounding of the Hyundai New World.

 A. Applicability of § 2798

 Section 2798 provides, in pertinent part:

 
(a) Claims Barred - No civil action may be brought against the United States on the basis of the content of a navigational aid prepared or disseminated by the Defense Mapping Agency.
 
(b) Navigational Aids Covered - Subsection (a) applies with respect to a navigational aid in the form of a map, a chart, or a publication and any other form or medium of product or information in which the Defense Mapping Agency prepares or disseminates navigational aids.
 
(d) Effective Date - Section 2798 of title 10, United States Code, as added by subsection
 
(b), shall take effect on the date of the enactment of this Act and shall apply with respect to (1) civil actions brought before such date that are pending adjudication on such date, and civil actions brought on or after such date.

 10 U.S.C. § 2798 (emphasis added). This provision became effective on October 5, 1994.

 The Government contends that as a result of the recent enactment of Section 2798, this Court no longer has jurisdiction over the tort claims against the United States alleged in plaintiffs' complaint. See Memorandum of Defendant United States in Support of its Motion to Dismiss for Lack of Subject Matter Jurisdiction and Failure to State a Claim by Reason of Newly Passed Statute ("Defendant Mem.") at 3. The Government claims that, in enacting § 2798, Congress clarified that the United States has not, and had not, waived sovereign immunity with respect to lawsuits based upon the content of Defense Mapping Agency maps, charts and other publications, and that Congress specifically provided for the statute's retroactive effect.

 The Government quotes Senator Nunn as saying:

 
Certain DMA mapping, charting and geodesy (MC&G) nautical and aeronautical products are needed and used by the general public. DMA accommodates this need through an extensive public sale program. It is crucial that end users rely on the most current and ...

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