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United States District Court, S.D. New York

March 30, 2004.

CARMELO DOMINGUEZ, individually and as parent and natural guardian of NATASHA DOMINGUEZ, JOICE SERATE and DEBORAH GLOVER, as administratrix of the Estate of JOSEPH GLOVER, and DEBORAH GLOVER, personally, Plaintiffs -against- UNITED STATES OF AMERICA, THE UNITED STATES COAST GUARD, JOHN DOE, and RICHARD ROE, the Coast Guard seamen aboard the Coast Guard vessel, Defendants

The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge


In this action plaintiffs allege wrongful acts in connection with an attempted rescue by the Coast Guard off the south coast of Long Island Sound. Plaintiffs bring their claims pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 ("FTCA"), as well as under 42 U.S.C. § 1981 and 1983, and New York law.

Defendant United States of America moves to dismiss claims against it for lack of subject matter jurisdiction, improper venue, lack of service of process, and failure to state a claim. For the reasons set forth the motion is granted on the jurisdictional ground. Page 2


  The complaint alleges that on September 30, 2000 plaintiffs Natasha Dominguez, Carmelo Dominguez, and Joice Serate, and decedent Joseph Glover; embarked on a fishing trip in a recreational motor boat. While fishing in Moriches Inlet, the motor of the boat ceased to function and the boat began to fill with water. The boaters called for assistance, and the Coast Guard responded. The complaint alleges that defendants John Doe and Richard Roe, two Coast Guard seamen who responded to the call, rescued only Natasha Dominguez from the sinking boat. The complaint alleges that Doe and Roe declined to pull Carmelo Dominguez, Serate, or Glover, into the rescue boat, resulting in injury to Dominguez and Serate, and the death of Glover.

  On March 31, 2003 plaintiffs filed the instant action alleging that Doe and Roe, and the Coast Guard, failed to rescue Dominguez, Serate, and Glover because of racial animus. The complaint further alleges that the Coast Guard failed to adequately train, monitor, supervise, and discipline Doe, Roe, and other seamen operating rescue boats in the Moriches Inlet.


  The United States argues that the Court lacks subject matter jurisdiction over this action because plaintiffs failed to file their complaint within the two-year statute of limitations provided for under the Suits in Admiralty Act, 46 App. U.S.C. § 741 Page 3 et seq. ("SIAA"). The United States argues that this is a jurisdictional defect because the United States has waived sovereign immunity only for maritime actions brought within a two-year timeframe.

  It is well-settled that suit may be brought against the United States only where Congress has expressly waived sovereign immunity. See United States v. Sherwood, 312 U.S. 584, 586 (1941). In the absence of such waiver, federal subject matter jurisdiction does not exist. See Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991). Plaintiffs purport to bring the instant action pursuant to the FTCA, which waives sovereign immunity in the district courts for actions against the United States:

for personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b).

  A separate basis for jurisdiction over the United States exists, however, for suits in admiralty. The SIAA waives sovereign immunity of the United States with respect to cases in which "if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, of if a private person or property were involved, a proceeding in admiralty could Page 4 be maintained." 46 App. U.S.C. § 742. This waiver of sovereign immunity extends only to suits brought within two years from the date on which the cause of action arises. 46 App. U.S.C. § 745.

  The FTCA expressly states that it does not apply to suits in admiralty against the United States. 28 U.S.C. § 2680(d). Thus, if plaintiffs' suit is one in admiralty, it must be brought under the SIAA. This determination is most relevant to the instant motion because if jurisdiction over the United States may be obtained only pursuant to the SIAA, the action is subject to the two-year limitation provided for under that statute.

  Admiralty jurisdiction in tort exists where two conditions are satisfied: the alleged wrong must have taken place on navigable waters, and must bear a significant relationship to traditional maritime activity. Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 254-61 (1972); Keene Corp. v. United States, 700 F.2d 836, 843 (2d Cir. 1983).

  In assessing the applicability of this standard to the instant action, the case of KellY v. United States, 531 F.2d 1144 (2d Cir. 1976), is directly on point. In Kelly, suit was brought against the United States alleging that the Coast Guard negligently rescued the plaintiff's decedent following a boat accident, resulting in decedent's drowning death. The Second Circuit first concluded that the negligent act took place on navigable waters. The fact that the complaint alleged that Page 5 negligent acts occurred on land as well as on water did not alter the outcome, due to "the traditional rule that where the negligent act originates on land and the damage occurs on water, the cause of action is within admiralty jurisdiction." Id. at 1146.

  With regard to the second prong of the Executive Jet Aviation test, the Second Circuit held that "rescue operations of the Coast Guard conducted on navigable waters do in fact bear a significant relationship to traditional maritime activities for purposes of admiralty jurisdiction." Id. at 1147. In so holding the court discussed the integral role of the Coast Guard in maritime activity, and the "federal interest in providing a forum and a uniform body of law for the adjudication of claims against the Coast Guard concerning its rendering of aid to persons and vessels in distress on navigable waters." Id. at 1148.

  In the instant case, as in Kelly, the complaint alleges wrongful conduct by the Coast Guard in the course of a rescue of boaters. There is no question that the damage alleged occurred in navigable waters, satisfying the first element of the Executive Jet Aviation test. Moreover, the act of rescue by Coast Guard seamen Doe and Roe, and the training of those seamen by the Coast Guard, are activities that unquestionably bear a significant relationship to traditional maritime activities. Therefore, following the lead of Kelly, the Court concludes that Page 6 plaintiff's claim arises in admiralty, and therefore must be brought under the SIAA.

  Having so concluded, the Court must also dismiss plaintiff's claim against the United States for lack of subject matter jurisdiction. The waiver of sovereign immunity provided for by the SIAA extends only to suit brought within two years of the accrual of the cause of action. Plaintiff's cause of action accrued on September 30, 2000, the day of the attempted rescue. Plaintiff's complaint was filed on March 31, 2003, two and a half years after the incident. Thus, plaintiff's claim against the United States is not covered by the waiver of sovereign immunity provided by the SIAA, and must therefore be dismissed for lack of jurisdiction.

  Because the Court concludes that the United States's motion to dismiss should be granted based on lack of subject matter jurisdiction, it declines to reach the other grounds argued for dismissal.


  The motion to dismiss the complaint against the United States is granted. Page 7



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