Coumou v. USA ( 1997 )

  •                                     REVISED
                        UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT
                                Nos. 95-30219 & 95-30697
                        Appeals from the United States District Court
                           for the Eastern District of Louisiana
                                     February 26, 1997
    Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.
    POLITZ, Chief Judge:
          The United States appeals the bench trial judgment finding it liable for
    personal injury and property damages incurred by Bram C. Coumou. We conclude
    that the district court improperly predicated liability on the federal extradition
    statutes, 18 U.S.C. § 3181 et seq., and the Maritime Drug Law Enforcement Act,
    46 U.S.C. app. § 1903. It remains for resolution, however, whether the government
    engaged in negligent conduct that is subject to the waiver of sovereign immunity
    contained in the Public Vessels Act, 46 U.S.C. § 781 et seq. We remand for the
    district court to determine whether federal agents were negligent in failing to notify
    Haitian officials that Coumou was a government informant who cooperated with
    drug enforcement officers in their search of his vessel.
           Coumou was the owner and master of the M/V NORDIC, a coastal freighter
    of Honduran registry. On June 2, 1991 the NORDIC departed port in Colombia
    with a load of cement bound for St. Marc, Haiti. Shortly after leaving port
    Coumou, suspecting that member(s) of his crew might have concealed narcotics in
    the containers of cement he was carrying, made radio contact with the United
    States Coast Guard station in Miami. Coumou advised of his suspicions and asked
    the Coast Guard to board his vessel to determine whether any contraband was
    aboard. The Coast Guard acknowledged the transmission but made no definitive
    response to Coumou’s request.
           On June 6 the NORDIC was sighted by a patrol aircraft that reported its
    position and course to a Coast Guard Law Enforcement Detachment (LEDET)
    operating off a naval warship, the frigate U.S.S. ELROD.1 Soon thereafter the
    ELROD intercepted the NORDIC on the high seas and Lieutenant Kondratowicz,
        It is unclear from the record whether this patrol plane had been dispatched in response
    to Coumou’s June 2 radio transmission or was simply monitoring maritime traffic.
    commander of the LEDET, had radio discussions with Coumou about boarding.2
    Because of a mechanical problem with the outboard motor on the ELROD’s
    launch, the boarding was delayed until the next day.
              As the ELROD tracked the NORDIC in anticipation of the LEDET boarding,
    Kondratowicz communicated the situation to COMCARIBRON, his operational
    command in the Seventh Coast Guard District. Because the circumstances of the
    prospective boarding involved a Honduran ship destined for and fast approaching
    Haitian territorial waters, the office of the Commandant of the Coast Guard
    coordinated with the Departments of State and Justice, pursuant to Presidential
    Directive 27, in order to obtain permission of the flag state, Honduras, to board the
    vessel.3 By the morning of June 7 the State Department had received permission
    from both Honduras and Haiti to board the NORDIC. This information was relayed
    to the Coast Guard, which notified the ELROD.
              The NORDIC, which overnight had sailed temporarily into Haitian territorial
    waters, was boarded on the morning of June 7. At this time Coumou repeated his
    suspicions to Lieutenant Kondratowicz.         The armed LEDET boarding party
    searched the vessel but found no contraband. During the boarding the NORDIC
        At the time the ELROD made its initial contact with the NORDIC, Coumou
    informed Lieutenant Kondratowicz about his previous radio transmission to the
    Coast Guard and repeated his suspicions directly to the LEDET commander.
    Kondratowicz received confirmation that Coumou previously had contacted the
    Coast Guard on June 2, but was not told the content of the prior communications.
       This directive mandates interdepartmental coordination and consultation when
    non-military situations arise which could affect adversely the United States’ foreign
    exited Haitian territorial waters and returned to international waters, following its
    planned track line into St. Marc. By this time, the United States government was
    aware that Coumou was an American citizen.
          Later that day, as the NORDIC was preparing to re-enter Haitian waters on
    its final approach to St. Marc, it became apparent to the LEDET that an exhaustive
    search of the NORDIC’s cargo of bags and pallets of cement would not be possible
    at sea. Lieutenant Kondratowicz radioed a report to his superiors and requested
    instructions. While a decision was pending, Lieutenant Kondratowicz, acting upon
    interim orders from COMCARIBRON, ordered Coumou to steer a northerly course
    to keep the vessel in international waters. Coumou initially refused, acquiescing
    only after Lieutenant Kondratowicz told him that if he did not comply the LEDET
    would take command of the helm.
          After a wait of several hours, which the NORDIC spent adrift in international
    waters, COMCARIBRON issued instructions for the NORDIC to proceed to
    St. Marc, where its cargo would be searched more thoroughly as it was off-loaded.
    This directive was given because the Coast Guard, through the PD-27 process, had
    secured the Haitian government’s permission to undertake an American law
    enforcement operation within its sovereign territory. The LEDET was ordered to
    remain on board the NORDIC during the remainder of the voyage, and the ELROD
    was instructed to escort the vessel into St. Marc.
          When the NORDIC arrived at St. Marc, several Haitian officials boarded to
    meet with Coumou; after this initial encounter the Haitian presence at the dock was
    token, consisting of a handful of policemen who merely observed the transfer of
    cargo. Soon after arrival, the NORDIC began off-loading its cargo under the
    watchful eyes of the LEDET. This off-loading was done by Coumou, the only
    available crane operator, with the assistance of Haitian stevedores.
          On June 8 the ELROD departed Haiti under orders, leaving its LEDET to
    oversee the situation. Within a day the Coast Guard cutter TAMPA, with its own
    LEDET led by Lieutenant Craig Henzel, arrived to take charge of the operation.
    Lieutenant Henzel was not briefed on the extent of Coumou’s antecedent efforts to
    secure Coast Guard assistance in searching his vessel for contraband.
          For the duration of the off-loading the TAMPA’s LEDET maintained a
    secure perimeter around the NORDIC and visually inspected each item of cargo
    before it was removed from the loading dock. On the third day of the off-loading
    Lieutenant Henzel’s crew discovered cocaine hidden in the cement. Haitian police
    officials watched Lieutenant Henzel field-test the cocaine but made no move to
    interfere or take charge of the situation.4 Coumou and his crew were held in the
    captain’s cabin under armed guard pending their disposition.
          Once the cocaine was discovered, the Haitian government decided to assert
    its jurisdiction and requested custody of Coumou, his crew, and his vessel. The
    Coast Guard again turned to the PD-27 process to determine how to proceed. The
    situation reports and related memoranda before the decision-makers at this level
          The cocaine was ultimately delivered into the custody and control of
    Commander Mizell, the Coast Guard attache at the United States embassy in
    were grossly deficient and inaccurate; in particular, there was no indication that
    Coumou had ever asked for a boarding, no information that the NORDIC was in
    international waters during the boarding, false reports that the NORDIC was a
    “mother ship,” false reports concerning Coumou’s demeanor and conduct during
    the boarding,5 and a significant overestimation of the Haitian government’s
    negligible role in the seizure of the cocaine. After considering this misinformation,
    the PD-27 decision-makers decided to defer to Haiti’s request for jurisdiction.
    Accordingly, the order was issued to turn the NORDIC and her crew over to
    Haitian authorities.
           Coumou was incarcerated in Haiti for six months. The experience was a
    nightmare.   During this time he suffered from malnutrition, infections, and
    diseases, including bronchitis, pneumonia, kidney infection, chronic back pain,
    nerve disorder, fungal and eye infection, chronic diarrhea, dehydration, and
    marasmus, and he witnessed numerous atrocities, perpetrated both by Haitian
    officials and other prisoners, including beatings and torture, some of which ended
    in the death of the victim.
           Coumou was finally tried and acquitted on November 22, 1991. Despite his
         The situation reports ultimately reaching the higher echelons of Coast Guard
    command regarding the initial contact between the LEDET and the NORDIC
    indicated that Coumou was “belligerent” and “uncooperative” and that his prior
    radio transmission appeared to be a “ploy” to draw suspicion from his vessel. At
    trial, however, Lieutenant
    Kondratowicz contradicted these reports, testifying that Coumou was cooperative
    and that he never considered his prior transmission to be a “ploy.” The United
    States did not account for the discrepancy between these reports and
    Kondratowicz’s trial testimony.
    acquittal, the Haitian government refused to return his ship, money, or passport.
    Coumou left the country the day after his acquittal, having been informed by his
    attorney that the Haitian government was appealing the acquittal and that he might
    be thrown back into prison.6 After Coumou returned to New Orleans, he continued
    to suffer from physical ailments caused by his incarceration in Haiti as well as
    anxiety and alcoholism, and was diagnosed with post-traumatic stress disorder.
              Coumou filed this action naming the United States as defendant and alleging
    that his injuries had been caused by the government’s tortious conduct. 7 After a
    trial limited to the issue of liability, the district court entered a memorandum
    opinion finding the United States liable for Coumou’s injuries. The United States
    timely appealed.
              The government’s liability is governed by the waiver of sovereign immunity
    set forth in the Public Vessels Act, 46 U.S.C. § 781 et seq.8 The PVA allows
       Coumou was also forced to sign over to his attorney a power-of-attorney giving
    her control of the NORDIC and pay her fee of $45,000 or face the same risk of
    returning to prison in Haiti.
        Claims against Lieutenant Kondratowicz and Commander Mizell, also named
    as defendants, were voluntarily dismissed with prejudice during trial.
         See United States v. United Continental Tuna Corp., 
    425 U.S. 164
    (demarcating boundary between the PVA and the Suits in Admiralty Act,
    446 U.S.C. § 741 et seq.). All parties concede that this case, arising as it does
    out of a Coast Guard police action on the high seas involving the master of a vessel
    engaged in maritime commerce, falls within the district court’s admiralty and
    maritime jurisdiction. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
    513 U.S. 527
     (1995). The availability of a maritime remedy under the PVA
    excepts Coumou’s claim from the Federal Tort Claims Act. 28 U.S.C. § 2680(d);
    American Stevedores, Inc. v. Porello, 
    330 U.S. 446
    recovery of personal and property damages “caused by a public vessel of the United
    States”9 and subjects the United States to the same liability imposed under
    admiralty law upon private parties in the same or similar circumstances.10 In
    admiralty cases such as this we review the district court’s findings of fact for clear
    error and consider all questions of law de novo.11 “The district court’s rulings on
    negligence, cause, and proximate cause are findings of fact,”12 while its
    determination of the existence of a legal duty is a question of law.13
                The district court found that the search of the NORDIC “was impeded by
    considerable confusion, miscommunication and misinformation, some of which
    appears to be deliberate, or at least, perverse after the fact attempts at cosmetic
    restoration.” It did not, however, ground liability on general maritime tort law.
    Rather, it found the United States liable for negligence per se premised upon the
    United States’ failure to comply with two distinct statutory provisions. We agree
    with the government that these two statutes do not generate liability in this case.
         46 U.S.C.§ 781; Porello, at 450. In accordance with traditional principles of
    maritime law, the consent to suit embodied in PVA includes cases where actionable
    injury is caused by the conduct of the personnel or crew of a public vessel and not
    by the vessel itself. Canadian Aviator, Ltd. v. United States, 
    324 U.S. 215
         Canadian Aviator; Walls Industries, Inc. v. United States, 
    958 F.2d 69
    Cir. 1992). The fact that the government’s conduct involved a uniquely sovereign
    function, maritime law enforcement, does not change our inquiry. Indian Towing
    Co. v. United States, 
    350 U.S. 61
            Mendes Junior Int’l Co. v. M/V Sokai Maru, 
    43 F.3d 153
     (5th Cir. 1995).
          Bertram v. Freeport McMoran, Inc., 
    35 F.3d 1008
    , 1019 (5th Cir. 1994)
    (internal quotation marks omitted) (citations omitted).
            Forrester v. Ocean Marine Indem. Co., 
    11 F.3d 1213
     (5th Cir. 1993).
             The first duty addressed by the trial judge is based on federal extradition
    laws, 18 U.S.C. § 3181 et seq., which implement the process for domestic
    enforcement of extradition treaties. In this case, however, the extradition process
    was never invoked by the executive branch; therefore, any protections these statutes
    might have offered to Coumou are inapposite.14 Because Coumou does not fall into
    the class of persons the extradition statutes are intended to protect, i.e. prospective
    extraditees, their alleged violation cannot form the basis of a claim of negligence
    per se.15
             The district court also relied upon 46 U.S.C. app. § 1903, the criminal statute
    the Navy and Coast Guard were enforcing when the NORDIC was intercepted.
    Particular reference was to subsection (f), which provides that “[a]ny person who
    violates this section shall be tried in the United States district court . . . .”
    Construing this provision in pari materia with other applicable federal rules and
    regulations, the trial court discerned a congressional mandate that any person
    arrested for a violation of section 1903 should be transported immediately to the
    nearest federal magistrate. In this the district court erred. Section 1903(f), and the
    other statutes relied upon by the district court, do no more than regulate the
    prosecution of a criminal defendant in federal court; they do not prescribe a general
    code of conduct applicable in instances such as this where the government has
        See United States v. Alvarez-Machain, 
    504 U.S. 655
     (1992) (remarking that
    there is no “right under the extradition treaty to be returned to this country only in
    accordance with its terms”); Ker v. Illinois, 
    119 U.S. 436
            Melerine v. Avondale Shipyards, Inc., 
    659 F.2d 706
     (5th Cir. Unit A 1981).
    exercised its discretion and decided not to indict or prosecute an arrestee.16 Such
    an incidental violation of a federal statute alone, absent some breach of a
    correlative duty of care, cannot form the basis of a finding of liability under the
             The fact that the government did not violate a statute, however, does not end
    our inquiry.     The general maritime law of negligence recognizes a duty of
    reasonable care under existing circumstances18 when warranted by general tort law
    principles.19 As we read the district court’s opinion, it did not reach the question
    of common-law negligence. We will remand the case so that the district court can
    explore whether the government breached its duty of reasonable care.
             The government contends that its conduct falls within the discretionary
    function exception to its waiver of sovereign immunity.20 This exception prevents
    private suits against the federal government based on decisions that implicate
    public policy choices. We have held that “the discretionary function exception in
            See Wayte v. United States, 
    470 U.S. 598
            See Johnson v. Sawyer, 
    47 F.3d 716
     (5th Cir. 1995) (en banc).
        Kermarec v. Compagnie Generale Transatlantique, 
    358 U.S. 625
          Gavagan v. United States, 
    955 F.2d 1016
     (5th Cir. 1992); Consolidated
    Aluminum Corp. v. C.F. Bean Corp., 
    833 F.2d 65
     (5th Cir. 1987), cert. denied, 
    486 U.S. 1055
          See Dalehite v. United States, 
    346 U.S. 15
    , 34 (1953) (characterizing the
    exception as circumscribing “the discretion of the executive or the administrator
    to act according to one’s judgment of the best course); Wysinger v. United States,
    784 F.2d 1252
     (5th Cir. 1986).
    principle shields from tort liability the Coast Guard’s apprehension . . . of drug-
    running vessels.”21 According to the government, its decision to release Coumou
    to Haitian jurisdiction—and indeed its entire method of investigating drug
    trafficking—is a matter of policy that continues to enjoy sovereign immunity even
    after passage of the Public Vessels Act.
             We are not persuaded that the discretionary-function exception necessarily
    defeats Coumou’s suit. Even if the government is immune from tort suits with
    respect to its policy decision to search the NORDIC in Haiti and then accede to the
    Haitian request to exercise Haitian jurisdiction, it still had a duty to exercise
    reasonable care in carrying out that policy.22 “Courts have generally drawn a line
    between decisions at a planning level, or decisions that exercise policy judgment,
    and decisions at a[n] operational level, or decisions that are merely incident to
            B&F Trawlers, Inc. v. United States, 
    841 F.2d 626
    , 631 (5th Cir. 1988).
         See Johnson v. Sawyer, 
    4 F.3d 369
     (5th Cir. 1993) (holding that the IRS’s
    policy decision to publish the names of taxpayers who violate criminal tax laws
    does not shield it from liability for negligently releasing embarrassing information),
    47 F.3d 716
     (5th Cir. 1995) (en banc) (dismissing the FTCA claim because
    local Texas law would
    not have provided a cause of action for the disclosure of the embarrassing
    information); Wysinger at 1253 (“[O]nce the government has made a decision to
    act the government is responsible for acts negligently carried out even though
    discretionary decisions are constantly made as to how those acts are carried out.”);
    United States v. Gavagan, 
    280 F.2d 319
    , 325 (5th Cir. 1960) (finding liability for
    “failure to pass on and evaluate vital information” during an attempt to rescue a
    sinking shrimper boat), cert. denied, 
    364 U.S. 933
     (1961). See also Lettsome v.
    United States, 
    411 F.2d 917
     (5th Cir. 1969) (finding that the failure of a naval
    employee to warn of a particular defect was negligence for which the United States
    was liable); United States v. Lawter, 
    219 F.2d 559
     (5th Cir. 1955) (finding the
    government negligent for allowing an untrained man to operate helicopter rescue
    carrying out a government policy.”23 The government failed to communicate
    potentially exculpatory information from one LEDET to another and then failed to
    communicate that information to Haitian police and prosecutors. The United States
    has no policy interest in treating informants the same way it treats other suspected
    criminals. Its need for discretion in conducting foreign relations does not include
    a need to decide whether to inform foreign governments that there may be no basis
    for prosecuting a United States citizen because he provided the tip that led to the
    arrest. The government was required to take reasonable care to see that Haitian
    officials learned of Coumou’s cooperation. Its failure to transmit the information
    may have been the result of a breach of that duty.
            We remand Coumou’s suit for the district court to determine whether the
    government’s failure to convey information to Haitian authorities constituted a
    breach of its duty of reasonable care. Although we have outlined above some of
    the facts the district court may consider, we express no view as to what findings
    and conclusion that court should reach on the ultimate question of negligence.
         Trevino v. General Dynamics Corp., 
    865 F.2d 1474
    , 1484 (5th Cir.), cert.
    493 U.S. 935

Document Info

DocketNumber: 95-30697

Filed Date: 6/2/1997

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (23)

Bertram v. Freeport McMoran, Inc. , 35 F.3d 1008 ( 1994 )

Mendes Jr. Intern. Co. v. M/V Sokai Maru , 43 F.3d 153 ( 1995 )

Johnson v. Sawyer , 47 F.3d 716 ( 1995 )

Ker v. Illinois , 119 U.S. 436 ( 1886 )

Canadian Aviator, Ltd. v. United States , 324 U.S. 215 ( 1945 )

American Stevedores, Inc. v. Porello , 330 U.S. 446 ( 1947 )

Dalehite v. United States , 346 U.S. 15 ( 1953 )

Indian Towing Co. v. United States , 350 U.S. 61 ( 1955 )

Kermarec v. Compagnie Generale Transatlantique , 358 U.S. 625 ( 1959 )

United States v. United Continental Tuna Corp. , 425 U.S. 164 ( 1976 )

Wayte v. United States , 470 U.S. 598 ( 1985 )

United States v. Alvarez-Machain , 504 U.S. 655 ( 1992 )

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527 ( 1995 )

united-states-of-america-and-cross-appellee-v-oren-lawter-and , 219 F.2d 559 ( 1955 )

United States v. Geraldine Gavagan, as Administratrix of ... , 280 F.2d 319 ( 1960 )

David Roger Lettsome v. The United States of America , 411 F.2d 917 ( 1969 )

Anthony J. Melerine, Jr., Continental Insurance Company, ... , 659 F.2d 706 ( 1981 )

Isie D. Wysinger v. United States , 784 F.2d 1252 ( 1986 )

B & F Trawlers, Inc. And International Bank, N.A. v. United ... , 841 F.2d 626 ( 1988 )

gloria-trevino-v-general-dynamics-corp-gloria-trevino-v-general , 865 F.2d 1474 ( 1989 )

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