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.
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
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
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
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
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
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 ...