Garcia v. USA ( 2021 )

Case: 19-40718 Document: 00515711385 Page: 1 Date Filed: 01/19/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 19, 2021
No. 19-40718 Lyle W. Cayce
Clerk
Francisco Ortega Garcia, individually and as surviving spouse of
Patricia Guadalupe Garcia Cervantes, and as successor-in-interest to the estate;
and as next friend of V.S.O.G., a minor child,
Plaintiff—Appellant,
versus
United States of America; Mercury Marine, a division of
Brunswick Corporation; Safe Boats International, L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:17-CV-28
Before Jolly, Jones, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
While patrolling the Brownsville Ship Channel around midnight, a
United States Coast Guard vessel struck and killed Patricia Guadalupe
Garcia Cervantes, a Mexican citizen who was attempting to enter the United
States illegally by swimming across the Channel. Litigation ensued.
Francisco Ortega Garcia, individually and on behalf of his and Cervantes’
daughter, V.S.O.G., brought (1) negligence and wrongful death claims
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against the United States and (2) products liability, gross negligence, and
wrongful death claims against the manufacturers of the vessel and its engines,
Safe Boats and Mercury Marine.
The district court dismissed everything. It dismissed the negligence
claim against the United States, concluding that the United States owed no
duty to Cervantes. It dismissed the products liability claims against Safe
Boats and Mercury Marine, concluding that Cervantes, as a bystander,
lacked standing to bring those claims. And, because it dismissed all the
underlying tort claims, the district court dismissed the wrongful death claims.
For the reasons below, we affirm the dismissal of all Garcia’s claims against
the United States, Safe Boats, and Mercury Marine.
I
A
The Brownsville Ship Channel (BSC) lies just three miles north of
the mouth of the Rio Grande and connects the Port of Brownsville with the
Gulf of Mexico. 1 The BSC is a “high-traffic waterway, travelled day and
night by various vessels from small fishing boats to large tankers.” 2 In
1
See United States v. Ruiz-Hernandez, 890 F.3d 202, 206 (5th Cir. 2018) (describing
the BSC).
2
Id.2
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general, “there is no posted speed limit” on the BSC, 3 and “[t]here are no
lights along the [BSC], making it very dark at night.” 4
The United States Coast Guard maintains a station on South Padre
Island, near the BSC. The station’s “primary missions” include “search
and rescue and maritime law enforcement.” Coast Guard law enforcement
patrols roughly 30 miles of the Texas coast and several nearby waterways,
including the BSC. The purpose of the patrols is “to deter and interdict
immigrants and narcotic smugglers, ensure safety and security of the
maritime facilities within the Port of Brownsville, and to conduct commercial
and recreational vessel boardings to enforce various safety and security laws
and regulations.”
The Coast Guard’s patrol route follows a southwestern course,
departing from the South Padre Island station, traveling along the BSC,
passing the Shrimp Basin, and reaching the Port of Brownsville Turning
Basin, at which point the patrol crew turns around and heads back to the
station. Coast Guard crews conduct BSC patrols aboard a Special Purpose
Craft-Law Enforcement (SPC-LE) vessel. The Coast Guard developed
specifications for the SPC-LE, including that it be a “planing” vessel, a type
of vessel in which the bow rises while it is accelerating, only to fall again when
3
The one exception is the no-wake zone in the Shrimp Basin, a docking area on the
BSC’s north side where vessels must travel slowly. Id.4
Id. Although the Port of Brownsville commercial complex, located along the
shores of the BSC between the Shrimp Basin and the Port of Brownsville Turning Basin,
has “numerous commercial maritime facilities” that “have significant lighting that
illuminates the general vicinity within the BSC,” “[t]he remainder of the BSC, northeast
from the Shrimp Basin”— where the incident occurred—“is mostly undeveloped with
minimal shore side lighting.”
3
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it reaches “planing speed” of approximately 19.2 knots. 5 The Coast Guard
awarded the SPC-LE manufacturing contract to Safe Boats. Safe Boats
complied with the Coast Guard’s “planing” vessel specifications when it
supplied its SPC-LEs, and these vessels included engines with propeller
drives manufactured by Mercury Marine.
* * *
At 9:53 p.m. on April 23, 2015, four United States Coast Guard
members commenced a patrol of the BSC aboard an SPC-LE vessel. 6 At all
relevant times, the vessel’s navigation lights were on. Around 11:00 p.m., one
of the crewmembers requested and received permission to accelerate the
vessel to come up on plane. Two crewmembers assert that they looked
forward before the vessel came up on plane and did not see anything in the
water. In approximately 30 seconds, the vessel came up on plane. The vessel
then transited for approximately 30 seconds at an average speed of 30.86
knots until the crew heard a “thud” or “thump” sound under the vessel’s
hull. The crew stopped the vessel, turned it around, and searched the area to
identify the source of the sound. They spotted and recovered a pink plastic
innertube. After this search, the crew continued the patrol and returned to
the Coast Guard station around 12:40 a.m.; they reported to Coast Guard
officials and showed their superiors the recovered pink innertube.
Unbeknownst to the crew, Patricia Guadalupe Garcia Cervantes, a
Mexican citizen, and Galdino Jose Ruiz-Hernandez, a human smuggler, had
5
See Mark Corke, Getting an Outboard Boat on Plane, Boat U.S.,
https://www.boatus.com/magazine/2018/february/getting-on-plane.asp (describing how
to get a boat “on plane”).
6
The four United States Coast Guard members will be referred to as the crew. The
crew consisted of a certified coxswain, a break-in-coxswain, a boarding officer, and a
crewmember.
4
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been attempting to illegally enter the United States by swimming across the
BSC. 7 Cervantes was using a pink innertube as a flotation device. Cervantes
was struck by the Coast Guard crew’s vessel approximately 30 seconds after
the vessel had fully come up onto plane. An autopsy, conducted three days
after this incident, revealed that the injuries on Cervantes’ body were
consistent with the shape of the vessel’s propeller blades, and the coroner
determined that Cervantes “died nearly instantly” after the collision
“because of the initial blunt force trauma and blood loss.” The Coast Guard
conducted an investigation of the incident, which was summarized in a Major
Incident Report, completed on July 14, 2015.
B
Francisco Ortega Garcia brought this suit in his individual capacity,
as Cervantes’ spouse and administrator of her estate, and on behalf of his and
Cervantes’ minor daughter, V.S.O.G. Garcia asserted several claims
against three defendants: (1) negligence and wrongful death claims against
the United States for the Coast Guard’s operation of the vessel; (2) strict
products liability, gross negligence, and wrongful death claims against Safe
Boats regarding the vessel; and (3) strict products liability, gross negligence,
and wrongful death claims against Mercury Marine regarding the vessel’s
engines.
The United States moved to dismiss parts of Garcia’s negligence
claim for lack of subject-matter jurisdiction. 8 Safe Boats moved for partial
7
Ruiz-Hernandez was convicted of one count of conspiring to bring in, transport,
and harbor an alien resulting in death and one count of transporting an alien within the
United States for private financial gain and resulting in death. We upheld his conviction
and sentence on appeal. Ruiz-Hernandez, 890 F.3d at 208, 213.
8
The United States moved to dismiss the portions of Garcia’s negligence claim
alleging improper design of the vessel and lack of proper training and supervision of Coast
5
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summary judgment on four different issues. 9 While all these motions were
pending, the magistrate judge issued a Report and Recommendation (R&R),
recommending that all of Garcia’s claims be dismissed. Garcia timely filed
objections to the R&R. The district court overruled Garcia’s objections,
adopted the magistrate judge’s R&R in its entirety, and dismissed all of
Garcia’s claims with prejudice. Specifically, the district court determined
that: (1) Garcia failed to identify what duty the United States owed to
Cervantes; (2) he failed to show that Safe Boats and Mercury Marine had a
duty to warn Cervantes; (3) he could not maintain the maritime products
liability claims because Cervantes, as a “casual bystander,” lacked standing
to bring those claims; and (4) he could not maintain wrongful death claims
because all the underlying tort claims were dismissed. Garcia appealed.
II
Before reaching the issues that Garcia raises on appeal, there are three
threshold matters: (1) whether the district court had subject-matter
jurisdiction; (2) whether Garcia has standing to sue in his individual capacity;
and (3) the proper standard of review. We address each in turn.
A
First, we address the parties’ confusion about the basis for the district
court’s subject-matter jurisdiction. 10 Because Garcia brings claims against
Guard personnel, arguing those claims were barred by sovereign immunity and outside the
discretionary function exception to the waiver of sovereign immunity.
9
Safe Boats filed motions for partial summary judgment on the issues of
(1) punitive damages, (2) Garcia’s lack of standing, (3) proximate cause, and (4) the
government contractor defense.
10
The magistrate judge noted the “disagreement between the parties over the
jurisdictional bases of [Garcia’s] claims.” “[S]ubject-matter jurisdiction is not waivable,”
6
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the United States, our subject-matter jurisdiction analysis involves two
inquiries: (1) Did the United States waive its sovereign immunity? And if so,
(2) does diversity or admiralty subject-matter jurisdiction apply?
Turning to the first inquiry: To maintain a suit in district court against
the United States, a plaintiff must bring claims under a statute in which
Congress expressly waives the United States’ sovereign immunity. 11 Garcia
brings his claims under the Federal Tort Claims Act (FTCA) 12 or, in the
alternative, the Suits in Admiralty Act (SIAA) 13 and the Public Vessels Act
(PVA). 14 Determining which waiver statute applies matters because the
FTCA excludes claims in admiralty, while the SIAA and PVA do not. 15 So,
we must first decide whether Garcia’s claims are admiralty claims.
A party seeking to invoke federal admiralty jurisdiction over a tort
claim must demonstrate that the tortious activity (1) “occurred on navigable
water” or that an “injury suffered on land was caused by a vessel on navigable
water,” and (2) bears a “connection with the maritime activity.” 16 Garcia
has done both. First, he alleges that Cervantes’ death occurred on the BSC.
and we are “under a continuing duty to inquire into the basis of jurisdiction in the district
court.” Warren v. United States, 874 F.2d 280, 281–82 (5th Cir. 1989).
11
See Dunn-McCampbell Royalty Interest, Inc. v. National Park Service, 112 F.3d
1283, 1287 (5th Cir. 1997) (“[T]he United States is immune from suit unless it consents,
and the terms of its consent circumscribe our jurisdiction.”).
12
28 U.S.C. § 1346(b)(1).
13
46 U.S.C. §§ 30901 et seq.
14
46 U.S.C. §§ 31101 et seq.
15
28 U.S.C. § 2680(d). See also McCormick v. United States, 680 F.2d 345, 348 (5th
Cir. 1982); Williams v. Central Gulf Lines, 874 F.2d 1958, 1062 (5th Cir. 1989).
16
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534
(1995). See 28 U.S.C. § 1331.
7
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Second, he alleges that her death was caused by a Coast Guard vessel, which
clearly bears a connection with maritime activity. 17
Federal Rule of Civil Procedure 9(h) specifies how a pleading may
designate claims as admiralty claims. 18 A party need not make a specific
reference to Rule 9(h) in his complaint, as long as the complaint contains “a
simple statement asserting admiralty or maritime claims,” which we have
held sufficient to invoke a district court’s admiralty jurisdiction. 19
In his complaint, Garcia asserts that the district court has diversity
subject-matter jurisdiction under 28 U.S.C. § 1332. Although Garcia’s
complaint does not refer to Rule 9(h) or to the district court’s admiralty
subject-matter jurisdiction under 28 U.S.C. § 1333, Garcia’s complaint does
contain a simple statement asserting maritime claims, which is sufficient for
admiralty jurisdiction purposes. 20 These are admiralty claims because they
involve a vessel collision. Because Garcia’s case is one in admiralty, the
relevant sovereign immunity statutory waivers are the SIAA and PVA, not
the FTCA. And these statutory waivers apply because this case—a collision
between a Coast Guard vessel and an individual—falls within their statutory
scope. Because the SIAA and PVA waive the United States’ sovereign
17
See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996) (citations
omitted) (applying admiralty law in a case involving “a watercraft collision on navigable
waters”).
18
Fed. R. Civ. P. 9(h).
19
Teal v. Eagle Fleet, Inc., 933 F.2d 341, 345 (5th Cir. 1991).
20
In addition, Garcia affirmatively stated that he did not object to the magistrate
judge’s R&R conclusion that Garcia had properly invoked admiralty jurisdiction as to all
defendants, and the district court noted that Garcia elected to proceed under its admiralty
jurisdiction.
8
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immunity, the district court had subject-matter jurisdiction based in
admiralty.
B
As a second threshold matter, we must address whether Garcia has
standing to sue as Cervantes’ surviving spouse. 21 To determine standing in
maritime accident cases, we apply state wrongful death and survival
statutes. 22 Texas law—the relevant state law here—provides that only the
surviving spouse, children, and parents of a deceased individual may be the
beneficiaries of wrongful death and survival suits. 23 Garcia admits that he and
Cervantes were never formally married; he says that they had a common-law
marriage. To prove a common-law marriage under Texas law, Garcia must
provide evidence that that he and Cervantes (1) agreed to be married and
after that agreement (2) lived together in Texas where (3) they represented
to others that they were married. 24 Garcia and Cervantes never lived together
in Texas, let alone represented to others in Texas that they were married.
Because Garcia is unable to show that he is Cervantes’ common-law spouse
under Texas law, he does not qualify as Cervantes’ surviving spouse and
21
“The standing doctrine defines and limits the role of the judiciary and is a
threshold inquiry to adjudication.” McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003).
Safe Boats raised the standing issue in its Motion for Partial Summary Judgment. Safe Boats
and Mercury Marine again raise the standing issue in their brief. The United States does
not raise this issue.
22
Yamaha, 516 U.S. at 215–16.
23
Tex. Civ. Prac. & Rem. Code § 71.004(a) provides: “An action to recover
damages . . . is for the exclusive benefit of the surviving spouse, children, and parents of the
deceased.” See id. § 71.004(b).
24
Tex. Fam. Code § 2.401(a)(2).
9
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therefore lacks standing in his individual capacity to bring wrongful death and
survival claims. 25
Notwithstanding his own lack of standing, Garcia may still maintain
claims as next-of-friend for V.S.O.G., his child with Cervantes.
Accordingly, we have jurisdiction to reach the merits of Garcia’s claims. 26
C
As a final preliminary matter, we must clarify the correct standard of
review. When the district court dismissed Garcia’s claims, it had several
motions before it, including the United States’ motion to dismiss Garcia’s
negligence claim and Safe Boats’ four motions for partial summary judgment.
The district court did not explicitly state which motions it was addressing,
and it did not state the standard(s) it was applying. 27
The district court dismissed Garcia’s negligence claim against the
United States on the grounds that Garcia failed to establish that the United
25
Garcia relies on a Texas probate court’s determination that he is an heir of
Cervantes and designated as her spouse. But Texas family law, not the probate court’s
determination of marital status for purposes of inheritance law, determines standing for
wrongful death and survival claims.
26
We have jurisdiction under 28 U.S.C. § 1291.
27
The magistrate judge’s R&R also was unclear as to what motions it was
addressing and what standard it was applying.
Although not raised as a stand alone issue, Garcia argues throughout his brief that
the magistrate judge raised several of the reasons for dismissal sua sponte, including the
magistrate judge’s determination that Garcia failed to adequately identify the duty the
Coast Guard owed Cervantes and that Cervantes was a “casual bystander” who lacked
standing to bring products liability claims. Garcia argues this was improper because the
United States had not filed a motion for summary judgment on his negligence claim, and
Safe Boats and Mercury Marine had not moved for summary judgment on the “casual
bystander” issue.
However, “district courts are widely acknowledged to possess the power to enter
summary judgment sua sponte, so long as the losing party was on notice that she had to come
10
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States owed a duty to Cervantes and thus failed to allege a prima facie claim
of negligence. 28 Determination of duty is a question of law that we review de
novo. 29
Turning to the remainder of Garcia’s claims, the district court
dismissed: (1) the failure-to-warn claims against Safe Boats and Mercury
Marine because it found their duty to warn was owed to the United States,
not to Cervantes; (2) the design defect claims against Safe Boats and Mercury
Marine because Cervantes, as a “casual bystander,” lacked standing to bring
maritime products liability claims; and (3) the wrongful death claims against
the United States, Safe Boats, and Mercury Marine because the underlying
tort claims had been dismissed. In dismissing these claims, the district court
relied on the R&R for the facts, which cited evidence outside the pleadings,
so we treat the district court’s order as a summary judgment ruling.
We review a district court’s grant of summary judgment de novo,
viewing all the facts and evidence in the light most favorable to the non-
forward with all of her evidence.” Atkins v. Salazar, 677 F.3d 667, 678 (5th Cir. 2011)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) (alteration omitted)). Applying a
previous version of Federal Rule of Civil Procedure 56, we held that ten days’ notice is
sufficient to “grant summary judgment sua sponte on grounds not urged in a pending
motion.” Lozano v. Ocwen Federal Bank, FSB, 489 F.3d 636, 641 (5th Cir. 2007). Here,
Garcia objected to the magistrate judge’s R&R fourteen days after it was filed. The district
court adopted the magistrate judge’s R&R in its entirety almost three months after those
objections were filed. Because Garcia had sufficient notice that the district court might
grant summary judgment on grounds not raised by the defendants, Garcia’s argument of
insufficient notice—to the extent he makes this argument—fails.
28
In a footnote, the district court tangentially addressed the United States’ 12(b)(1)
motion to dismiss based on the discretionary function exception. Because it dismissed the
products liability claims based on Cervantes’ lack of standing, the district court did not
address the discretionary function exception to a waiver of sovereign immunity.
29
In re Great Lakes Dredge & Dock Co. LLC, 624 F.3d 201, 211 (5th Cir. 2010)
(quoting In re Signal Int’l, LLC, 579 F.3d 478, 490 (5th Cir. 2009)).
11
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movant. 30 Summary judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” 31 A genuine dispute of material fact exists when
“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” 32
* * *
Summing up: We have subject-matter jurisdiction (because the
United States waived its sovereign immunity under the SIAA and PVA) and
the proper basis of subject-matter jurisdiction is in admiralty; Garcia does not
have standing to sue in his individual capacity but may bring claims on behalf
of V.S.O.G.; and we review the district court’s grant of summary judgment
and its duty determination de novo.
III
Garcia raises several issues on appeal.
• Regarding his negligence claim against the United States,
Garcia argues that the district court erred in finding that the
United States owed no duty to Cervantes based on the lack
of foreseeability.
• For his products liability claims against Safe Boats and Mercury
Marine, Garcia contends: (1) the district court erred in
applying the Restatement (Second) of Torts, which
forecloses Cervantes’ standing to maintain the products
liability claims; (2) the district court erred in construing his
products liability claims as brought against the United
30
Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013).
31
Fed. R. Civ. P. 56(a).
32
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
12
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States, rather than Safe Boats and Mercury Marine; (3) the
district court erred in dismissing the failure-to-warn claims
and construing them as brought against the United States;
and (4) the district court should have found that Safe Boats
was not entitled to immunity as a government contractor.
• Regarding the wrongful death claims against the United States,
Safe Boats, and Mercury Marine, Garcia argues that the
district court erred in dismissing these claims by concluding
that there were no underlying tort claims.
We address these arguments claim by claim.
A
We first address Garcia’s negligence claim against the United States.
Garcia asserts in his complaint that the United States is vicariously
liable for the Coast Guard crew’s failures to operate the vessel at a safe speed
and with sufficient lighting, to keep a proper lookout, and to render aid to
Cervantes. He argues that the Coast Guard has “a duty . . . to not cause
personal injury or death by their own wrongful or negligent acts or
omissions” and “to not allow a situation to develop which would cause the
death of another human being.” The district court determined that the
United States owed no duty to Cervantes—and was therefore not liable—
because the Coast Guard crew did not have actual knowledge about the
possibility of hitting Cervantes as she swam across the BSC. And, since it
found that there was no duty, the district court dismissed Garcia’s negligence
claim for failure to make out his prima facie claim. On appeal, Garcia argues
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that the district court erred because it failed to consider facts known to the
Coast Guard that address the foreseeability of harm.
We begin with the relevant law: “[N]egligence is an actionable wrong
under general maritime law.” 33 To maintain a negligence claim under
admiralty law, the plaintiff must show “a duty owed by the defendant to the
plaintiff, breach of that duty, injury sustained by [the] plaintiff, and a causal
connection between the defendant’s conduct and the plaintiff’s injury.” 34
We are concerned solely with the duty element.
Under general maritime law, “a tortfeasor is accountable only to those
to whom a duty is owed.” 35 More specifically, under the SIAA and PVA,
the duty owed by the United States “is equal ‘to that of a private person in
like circumstances.’” 36 We must determine the existence and scope of that
duty. 37 While our determination is guided by many factors, an especially
important factor is “the foreseeability of the harm suffered by the
complaining party.” 38 And the foreseeability factor is the critical issue here:
If the harm Cervantes suffered allegedly as a result of the Coast Guard crew’s
33
Withhart v. Otto Candies, L.L.C., 431 F.3d 840, 842 (5th Cir. 2005). See also
Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001) (“The general
maritime law has recognized the tort of negligence for more than a century . . . .”).
34
In re Great Lakes, 624 F.3d at 211 (quoting Canal Barge Co. v. Torco Oil Co., 220
F.3d 370, 376 (5th Cir. 2020)). See also Withhart, 431 F.3d at 842 (providing that the
elements of a negligence claim in maritime law are “essentially the same as land-based
negligence under the common law”).
35
Consol. Aluminum Corp. v. C.F. Bean Corp., 833 F.2d 65, 67 (5th Cir. 1987).
36
Southern Nat. Gas Co. v. Pontchartrain Materials, Inc., 711 F.2d 1251, 1254 (5th
Cir. 1983) (quoting Canadian Pac. (Bermuda) Ltd. v. United States, 534 F.2d 1165, 1168 (5th
Cir. 1976)); see 46 U.S.C. §§ 30903(a), 31102(a)(1), 31103.
37
See In re Great Lakes, 624 F.3d at 211.
38
Id. (quoting Consol. Aluminum Corp., 883 F.2d at 67).
14
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negligence was not foreseeable, then the United States owed no duty to
Cervantes and is not liable as a matter of law.
In the context of maritime torts, 39 we have deemed harm to be a
foreseeable consequence of an act or omission “if harm of a general sort to
persons of a general class might have been anticipated by a reasonably
thoughtful person, as a probable result of the act or omission, considering the
interplay of natural forces and likely human intervention.” 40 This definition
of foreseeability is in terms of general forms of harms and general classes of
victims. So, our analysis focuses on the general risk of collision—not on the
particular collision between the Coast Guard vessel and Cervantes—and on
the general class of individuals—not on Cervantes. 41 And, when we consider
the probability of harm, we do so “in terms of the ‘natural and probable’ risks
that a reasonable person would likely take into account in guiding her
practical conduct.” 42
Here, the general sort of harm—a collision between a vessel and an
individual swimming across the BSC—was not foreseeable. The BSC is “a
high-traffic waterway, travelled day and night by various vessels from small
fishing boats to large tankers.” 43 Because the Coast Guard vessel’s duty is
equivalent to that of a private vessel in similar circumstances, Garcia must
show that the private vessels that travel the BSC anticipated this general
39
See id.; In re Signal, 579 F.3d 478; Consol. Aluminum Corp., 883 F.2d 65; Southern
Nat. Gas Co., 711 F.2d 1251.
40
In re Great Lakes, 624 F.3d at 211 (quoting Consol. Aluminum Corp., 883 F.2d at
68).
41
See In re Signal, 579 F.3d at 492.
42
Id. at 491–92.
43
Ruiz-Hernandez, 890 F.3d at 206.
15
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kind of harm. 44 But Garcia provides no indication that any of these private
vessels would reasonably anticipate a collision with a nighttime swimmer.
Plus, “experience and common sense” weigh against the foreseeability of
this general sort of harm. 45 The high-traffic nature of the BSC, compounded
with its minimal lighting and absence of a speed limit, renders a nighttime
crossing by a human not only dangerous, but also unforeseeable. Thus, a
private vessel travelling at night in a high-traffic waterway would not
reasonably anticipate encountering swimmers in the water. Accordingly, the
presence of nighttime swimmers does not “guid[e] [the] practical conduct”
of private vessels in the BSC. 46 Additionally, it bears emphasis that the harm
involves individuals who are intentionally trying to avoid detection. Our
caselaw on the foreseeability of harm in the maritime context has involved
incidents between inanimate objects. 47 Of those cases, only In re Signal found
that the harm was foreseeable, largely because the risk of danger was due to
a discrete incident. 48 Here, because the harm involves individuals, rather
than inanimate objects, it is far more difficult to foresee what an
undocumented alien who is intentionally trying to avoid detection would do.
For these reasons, the harm was not foreseeable.
Likewise, the general class of victims was not foreseeable. Here, the
general class would be individuals swimming across the BSC. And,
44
See Southern Nat. Gas Co., 711 F.2d at 1254 (quoting Canadian Pac. (Bermuda)
Ltd., 534 F.2d at 1168).
45
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
46
In re Signal, 579 F.3d at 492.
47
In re Signal involved a collision between two moored vessels and a bridge after
Hurricane Katrina. Consolidated Aluminum Corp. involved the negligent rupturing of an oil
pipeline. Southern Natural Gas Co. involved a dredging company’s negligently striking of a
pipeline. In re Great Lakes involved a private company’s dredging activities.
48
In re Signal, 579 F.3d at 493.
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importantly, this class of victims includes individuals purposefully
attempting to avoid detection. 49 Undocumented aliens’ intention to evade
detection mitigates the foreseeability of harm: If individuals are actively
trying to avoid detection, then they do not wish to be foreseeable. Moreover,
the relevant probability for duty is the natural and probable risks a reasonable
person would likely take into account in guiding practical conduct, and Garcia
provides no indication that private vessels in the BSC were in the practice of
altering their conduct to accommodate the remote probability of
encountering nighttime swimmers. Again, Garcia provides no indication that
any of the private vessels that travel the BSC would reasonably anticipate
causing harm to nighttime swimmers who were trying to avoid detection.
Because the harm of a vessel–swimmer collision was not foreseeable, the
United States owed no duty to Cervantes and is not liable for the asserted
negligence of the Coast Guard crew.
Garcia argues there were facts known to the Coast Guard that made
the vessel–swimmer collision foreseeable. He offers as evidence testimony of
several Coast Guard officials to show that the Coast Guard was aware—and
had actual knowledge—that the entire BSC was used by undocumented
aliens as a point of entry into the United States. However, as discussed below,
the Coast Guard’s awareness of undocumented alien crossings does not
necessarily render the harm to Cervantes foreseeable.
First, Garcia cites the interview summary of Lieutenant Erica Kelly,
relying on the statement that approximately two to four undocumented aliens
49
Garcia asserts that Cervantes was avoiding “nearby patrol boats,” and the
district court observed that she was “trying to cross undetected.” The coxswain of the
vessel on the night of the incident, Brandon Rae, also testified that undocumented aliens
crossing the BSC “don’t want to be seen.”
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are apprehended by the Coast Guard each month in the BSC. 50 As an initial
point, this evidence is inherently devoid of context since the interview
summary lacks the questions to which Lieutenant Kelly was responding.
Plus, while the interview summary may show that the Coast Guard knew that
crossings occurred in the BSC, it also indicates that the Coast Guard did not
have knowledge of how many crossings occur, where along the 17-mile-long
BSC these crossings occur, with whom knowledge of these crossings was
shared, and other important details that inform our foreseeability analysis. 51
And finally, Lieutenant Kelly’s interview summary supports our holding that
the Coast Guard does not owe a duty because Lieutenant Kelly indicated that
private vessels in the BSC may not be aware of undocumented alien
crossings:
I’m not aware if there have been any Notices to Mariners
saying this is a high traffic area for migrants. We provide some
of that information to the facilities at working group meetings,
but not for the shrimpers. I don’t believe that anything has been
given to the tug operators. We do not get much information, if
any at all, from the commercial side on UDA activity.
The Coast Guard’s knowledge cannot be attributed to private vessels. And,
if private vessels do not possess knowledge of such crossings, it would not be
foreseeable to these private vessels that undocumented aliens might swim
across the BSC.
Garcia also cites the interview summary of Training Officer
Portwood, who was told that the BSC’s Shrimp Basin was a “point of entry”
50
Lieutenant Kelly is the Chief of Intelligence at Sector Corpus Christi and collects
and reports data on the BSC crossings.
51
Garcia also relies on the interview summary’s statement that the Coast Guard
provided a weekly briefing about crossings. But the interview summary also indicates that
“it is hard to determine who actually is listening to the brief.”
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into the United States and that “pretty much the entire BSC is known for
crossings” to support his claim that the harm to Cervantes was foreseeable.
And Garcia also relies on the interview summary of Lieutenant Michael Bell,
who said that he was briefed that undocumented aliens use trash bags, floats,
and other flotation devices. Again, this evidence indicates that the Coast
Guard had knowledge obtained through secondhand Coast Guard briefings
and intelligence reports, but not necessarily firsthand experience of seeing
undocumented aliens swimming across the BSC. 52
Garcia fares no better in establishing that the crew on the night of the
incident had firsthand experience of seeing such crossings. To show actual
knowledge by the crew, Garcia must either provide evidence that the crew
had firsthand experience of actually seeing an individual in the water or that
the crew had previously encountered someone swimming across the BSC at
night. Garcia has not shown either. Instead, Garcia cites the testimony of the
crew’s coxswain, Brandon Rae, who agreed that there was an unspecified
“probability” of nighttime swimmers in the BSC. Rae’s testimony, when
viewed in context, may demonstrate that he had knowledge of Coast Guard
briefings and intelligence reports that crossings occurred along the entire 17-
mile-long BSC. But Rae’s testimony also confirms that he had no firsthand
experience of seeing undocumented aliens swimming across the BSC.
Garcia’s argument that the crew had actual knowledge that would render
harm to nighttime swimmers foreseeable therefore fails. 53
52
See, e.g., In re Great Lakes, 624 F.3d at 210 (contrasting general and actual
knowledge).
53
Garcia also argues that the district court erred in citing our decision in Republic
of France v. United States, 290 F.2d 395, 401 (5th Cir. 1961), which requires proof of actual
knowledge. Garcia argues that Republic of France is “outdated and antiquated” and
distinguishable from this case, but he overlooks that we have repeatedly reaffirmed Republic
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Garcia’s cited evidence demonstrates that the Coast Guard was aware
that undocumented alien crossings occurred along the BSC, but this
knowledge was of a general nature. The Coast Guard did not know (1) the
exact number of crossings, (2) the exact location of crossings, or (3) the exact
timing of crossings, among other relevant details. These details are
significant for our foreseeability analysis. The entire BSC is 17 miles long and
approximately 500 feet wide; the Coast Guard patrols of the BSC cover a
route of approximately 34.2 miles. 54 This is a very large area to cover, which
affects our foreseeability analysis. Our decision in Lloyd’s Leasing Ltd. v.
Conoco is instructive. There, after a ship’s tanks cracked, crude oil spilled into
the waters of the Gulf of Mexico and washed ashore approximately 70 miles
west of the site of the ship’s grounding; the claimants were individuals who
suffered damages from oil tracked onto their premises by tourists and
beachgoers. 55 We held that the harm suffered by the plaintiffs was not
foreseeable, emphasizing that the original oil spill occurred 70 miles away. 56
Because the oil spill had to wash ashore on a developed shore to create these
damages of tracking oil, we noted that the amount of developed shoreline was
a small percentage of the total coastline (60 miles out of 340 miles). 57 We
ultimately held that, “[w]hile the appellee might reasonably anticipate that
the oil would probably wash ashore somewhere, it had no reason to have
anticipated that the oil would probably wash ashore in a heavily populated
of France’s actual knowledge requirement multiple times. See, e.g., In re Great Lakes, 624
F.3d at 211–12; Consol. Aluminum Corp., 833 F.2d at 68.
54
United States v. Ruiz-Hernandez, 890 F.3d 202, 206 (5th Cir. 2018).
55
Id. at 1449.
56
Id.
57
Id.
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area and then be tracked into businesses and homes.” 58 Similarly, the cited
evidence here may show that the Coast Guard might reasonably have
anticipated encountering undocumented aliens somewhere in the BSC, but
the Coast Guard did not have knowledge to anticipate where exactly in the
BSC the undocumented aliens would be swimming.
Garcia also relies on our opinion in United States v. Ruiz-Hernandez to
argue that the swimmer vessel collision was foreseeable. However, in Ruiz-
Hernandez, we discussed foreseeability from the perspective of Ruiz-
Hernandez: We held that it was foreseeable from a swimmer’s perspective
that vessels would be traveling through the BSC. 59 But our holding there has
little bearing on our duty analysis here because we must analyze foreseeability
from the perspective of a vessel traveling through the BSC at night. Garcia
also relies on Ruiz-Hernandez to argue that we should disregard the manner
in which the harm occurred for purposes of determining foreseeability. 60 But
the circumstances here—swimming at night in a high-traffic waterway that
has minimal lighting and no speed limit—are relevant and bear upon the
existence of an actionable duty.
Garcia also argues that the Coast Guard owes a special duty to
undocumented aliens swimming across the BSC. He first argues there
should be a duty because the purpose of BSC law-enforcement patrols is to
search for, detect, and intercept undocumented aliens. But the specific
functions that the Coast Guard performs has no bearing on the duty
58
Id.
59
890 F.3d at 211 (holding “it was reasonably foreseeable that a person swimming
across a high-traffic ship channel in the dark of night would be struck by a passing ship”).
60
Id. (the “precise nature of the [resulting] injury and the manner of its infliction
is immaterial . . . , so long as the injury is of a type that, in the circumstances, might
reasonably have been expected to occur”).
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determination because the duty owed, if any, is equal to that owed by private
vessels, which do not perform such functions. Garcia also argues that the
Coast Guard owes a duty to operate its vessels in a safe manner because its
mission includes person-in-the-water recoveries. But the Coast Guard’s
safety responsibilities do not impose a special duty: Its duty is limited to
ensuring the general safety of maritime facilities and commercial and
recreational vessels in the BSC and in conducting search and rescue
missions. And there is no evidence that the crew was undertaking a search
and rescue as to Cervantes or otherwise providing rescue services in a
manner that would impose a special duty. 61 In the absence of a special duty,
the Coast Guard’s duty is measured in accord with what all private vessels
must do. Therefore, we hold that the Coast Guard did not owe a duty to
Cervantes. Accordingly, the dismissal of Garcia’s negligence claim against
the United States for failure to state a prima facie case was proper.
B
Next, we address Garcia’s products liability claims. Garcia brought
defective design and failure-to-warn claims against Safe Boats and Mercury
Marine under a theory of strict products liability.
Essentially, Garcia asserts two design defects: (1) the design of Safe
Boats’ vessel impaired the vessel-operator’s forward visibility; and (2) the
design of Mercury Marine’s outboard engine lacked propeller guards.
Garcia’s failure-to-warn claims relate to these two asserted product defects.
The district court dismissed the defective design claims against Safe Boats
and Mercury Marine because, applying Restatement (Second) of Torts
61
See Allen v. Walmart Stores, LLC, 907 F.3d 170, 181 (5th Cir. 2018) (noting that
Texas courts “have recognized that a duty to use reasonable care may arise when a person
undertakes to provide services to another, either gratuitously or for compensation”)
(citation omitted).
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§ 402A, it found that Cervantes was neither a user nor a consumer and thus
lacked standing to bring maritime products liability claims under the
defective design theory. And the district court dismissed the failure-to-warn
claims because any duty to warn would be owed to the United States, not
Cervantes.
Garcia raises several arguments regarding the dismissal of these
claims. First, he argues that the district court incorrectly construed his
products liability claims as brought against the United States. Next, he argues
the district court erred in dismissing his products liability claims because it
should have applied Restatement (Third) of Torts, not Restatement
(Second) of Torts. Finally, Garcia argues that Safe Boats was not entitled to
immunity based on the government contractor defense.
We address each argument in turn.
1
Garcia first argues that the district court erred in adopting the
magistrate’s R&R in its entirety because it incorrectly construed the
products liability claims as brought against the United States. Admittedly,
the magistrate judge incorrectly characterized Garcia’s products liability
claims as claims brought against the United States, not Safe Boats and
Mercury Marine. However, the district court did not do so: In its order, the
district court correctly viewed the products liability claims as against Safe
Boats and Mercury Marine. Plus, all parties agree that Garcia’s products
liability claims are against Safe Boats and Mercury Marine, not the United
States. This argument thus fails.
2
We next address Garcia’s argument that the district court erred in
applying Restatement (Second) of Torts § 402A. Under § 402A, the
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“ultimate user or consumer” who is harmed by an allegedly defective
product may bring suit against the seller of that product. 62 But a casual
bystander may not. 63 Garcia does not dispute that Cervantes was properly
characterized as a casual bystander. Instead, he argues that, for maritime
products liability claims, we should apply Restatement (Third) of Torts § 1,
which more broadly exposes sellers to liability for harm to individuals and
under which Cervantes might have standing to bring products liability
claims. 64
We and the Supreme Court apply the Second Restatement to
maritime products liability cases. 65 Garcia claims that we already recognize
that the Third Restatement supplies the applicable substantive law for
maritime products liability law, but he bases this on our single decision in
Krummel v. Bombardier Corp. 66 There, the user of a watercraft broke his leg
after his foot became trapped in the watercraft; he sued the manufacturer on
defective design and failure-to-warn claims under Restatement (Third) of
Torts § 2(b) and Louisiana Products Liability Act (LPLA). 67 The district
62
Restatement (Second) of Torts § 402A (Am. Law Inst. 1965).
63
See id. § 402A cmt. o (Courts “have not gone beyond allowing recovery to users
and consumers,” and “[c]asual bystanders . . . have been denied recovery.”).
64
Restatement (Third) of Torts § 1 (Am. Law Inst. 1998).
65
See Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 979 (1997); Vickers
v. Chiles Drilling Co., 822 F.2d 535, 538 (5th Cir. 1987).
66
206 F.3d 548 (5th Cir. 2000). Garcia relies on other cases from our sister circuits,
but those cases are distinguishable because they did not address § 1 of the Third
Restatement. See, e.g., Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 860 n.2 (9th Cir. 2011)
(discussing § 2 of the Third Restatement but declining to adopt the Third Restatement for
all cases). Moreover, we are not bound by the decisions of our sister circuits. However, we
are bound by the Supreme Court and our own caselaw, both of which apply § 402A of the
Second Restatement.
67
Krummel, 206 F.3d at 550–51.
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court found the manufacturer liable. 68 But we reversed because the district
court based liability solely on the fact that an injury occurred and failed to
perform the risk-utility analysis, as required by both the LPLA and the Third
Restatement. 69 Krummel is distinguishable from this case: It involved claims
by the product’s user, not a casual bystander like Cervantes. So we had no
reason in Krummel to discuss who may bring suits in maritime products
liability cases under § 1—the provision Garcia claims should apply here.
Instead, when we actually have confronted the issue of who has standing to
bring maritime products liability claims, we have applied § 402A of the
Second Restatement. 70 Thus, under our precedent, the Second Restatement,
not the Third, supplies the substantive law for determining standing in
maritime products liability claims. And, to the extent that Garcia argues we
should adopt the Third Restatement, we may not: “Under our rule of
orderliness, we may not overrule a prior panel decision absent an intervening
change in the law, such as a statutory amendment or a decision from either
the Supreme Court or our en banc court.” 71 The Restatement is neither.
Garcia also argues that we should apply Texas law, which permits
bystanders to bring defective products liability claims. 72 But, in maritime
cases, a federal court may only apply state law to “fill the gaps” of maritime
68
Id. at 551.
69
Id. at 552.
70
See, e.g., Vickers, 822 F.2d at 538.
71
Thompson v. Dallas City Attorney’s Office, 913 F.3d 464, 467 (5th Cir. 2019).
72
See Darryl v. Ford Motor Co., 440 S.W.2d 630, 633 (Tex. 1969) (holding
“recovery under the strict liability doctrine is not limited to users and consumers); see also
Hernandez v. Tokai Corp., 2 S.W.3d 251, 257 (Tex. 1999) (reaffirming the holding in
Darryl).
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law. 73 Adopting Texas’s broader standing for bystanders would be more than
mere gap-filling: It would be a seismic shift in maritime law. 74
Because § 402A of the Second Restatement supplies the substantive
law in our circuit for maritime products liability claims, the district court
correctly applied it to determine that Cervantes lacked standing to bring
those claims. Therefore, the district court did not err in dismissing Garcia’s
defective design claims against Safe Boats and Mercury Marine.
3
Even assuming Garcia could bring these products liability claims, we
have an additional reason to affirm the district court’s dismissal: Garcia fails
to show that the asserted defective products proximately caused Cervantes’
death. Although the district court did not address proximate cause in its
order, we may affirm the district court’s dismissal on any ground supported
by the record. 75 And the record amply supports a finding that Garcia failed to
show that Safe Boats’ and Mercury Marine’s asserted defective products
were the proximate cause of Cervantes’ fatality.
As the moving parties, Safe Boats and Mercury Marine have the
burden of “identifying each claim or defense—or the part of each claim or
defense—on which summary judgment is sought.” 76 Since Garcia would
ultimately bear the burden of proof on his products liability claims, Safe Boats
73
Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 316–17 (5th Cir. 1987).
74
See also Yamaha, 516 U.S. at 210 (“[I]n several contexts, [the Supreme Court]
ha[s] recognized that vindication of maritime policies demanded uniform adherence to a
federal rule of decision, with no leeway for variation or supplementation by state law.”).
75
Gilbert v. Donahue, 751 F.3d 303, 311 (5th Cir. 2014) (stating that “we may ‘affirm
on any ground supported by the record’” even if “neither the appellant nor the district
court addressed the ground, so long as the argument was raised below”).
76
Fed. R. Civ. P. 56(a).
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and Mercury Marine may satisfy their burden “by merely pointing out that
the evidence in the record contains insufficient proof concerning an essential
element of the nonmoving party’s claim.” 77 If they do so, the burden then
shifts to Garcia to show that specific facts exist over which there is a genuine
dispute. 78 But Garcia cannot rely on“[c]onclusory allegations, speculation,
and unsubstantiated assertions” to make this showing. 79
We begin with the relevant law: Maritime law incorporates products
liability, including strict products liability. 80 And to prevail on his strict
products liability claims, Garcia must show that (1) Safe Boats and Marine
Mercury sold the products, (2) their products were unreasonably dangerous
or defective when they left their control, (3) those defects caused Cervantes’
injury, and (4) damages. 81
We next turn to Safe Boats’ and Mercury Marine’s burden: They
must demonstrate that the record is insufficient to establish causation for
Garcia’s products liability claims. Because Garcia asserts two design defects,
we address the evidence for each. First, Garcia asserts that Safe Boats’ vessel
was defective because it had impaired forward visibility at the time of the
incident. The uncontroverted evidence demonstrates that the vessel was
77
Norwegian Bulk Transp. A/S v. Int’l Marine Terminals P’ship, 520 F.3d 409, 412
(5th Cir. 2008).
78
Anderson, 477 U.S. at 250.
79
Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (citation omitted).
80
East River S.S. Corp. v. Transamerica Delavel, Inc., 476 U.S. 858, 865 (1986). See
also Vickers, 822 F.2d at 538.
81
Vickers, 822 F.2d at 538–40; 1 Thomas J. Schoenbaum, Admiralty &
Mar. Law § 5.13 (6th ed. 2019) (citing Restatement (Second) of Torts
§ 402A).
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traveling more than 30 knots at the time of the impact. 82 And it is undisputed
that, when the vessel travels at a speed greater than 30 knots, forward
visibility is not reduced. So, whatever limitations may be present in the
vessel’s forward visibility at slower speeds, there is no impairment to the
vessel’s forward visibility when it is navigating in excess of 30 knots, as it was
at the time of the incident. Because the vessel was travelling over 30 knots at
the time of the incident, the asserted impaired visibility defect cannot be—
and is not—the proximate cause of Cervantes’ fatality. And Garcia fares no
better with proving causation for the second asserted defect, the engines’
lack of propeller guards. Based on the undisputed expert testimony, the force
involved in the collision would have resulted in immediate death upon impact
with the vessel even with propeller guards. So the alleged failure to include
propeller guards on the engines cannot be—and is not—the proximate cause
of Cervantes’ fatality.
Since Safe Boats and Mercury Marine meet their burden, the burden
shifts to Garcia. Garcia must show that specific facts exist over which there
is a genuine dispute about proximate cause. Garcia fails to do so. He provides
no evidence that Safe Boats’ and Mercury Marine’s allegedly defective
products proximately caused the incident. Instead, Garcia complains that the
vessel was travelling too fast. But this concerns the operation of the vessel,
not its design. Garcia’s experts concede that the alleged limitation of the
82
Safe Boats’ expert, naval architect Robert Taylor, stated in his declaration and
opined in his report that, at the time of the incident, the vessel was traveling at a speed of
approximately 32–33 knots (36.8–38 mph). The Coast Guard’s investigative report
confirms this speed.
Importantly, for the 30 seconds before the impact, the vessel was fully on plane and
the vessel’s driver had an unobstructed view to the potential location of Cervantes. Only
during the last 2.2 seconds before the impact—when Cervantes would have been too near
the vessel to be visible—was the driver’s forward visibility obstructed.
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vessel’s forward visibility does not even come into play in this case. 83
Garcia’s experts also concede that only if the vessel had been traveling at a
slower speed at the time of impact would the propeller guards have
eliminated Cervantes’ injuries. Plus, the experts who evaluated the force
involved in the collision testified that the force would have resulted in
immediate death upon impact with the vessel, even with propeller guards.
Because Garcia fails to provide specific facts showing there is a
genuine dispute about proximate causation, he fails to meet his burden on
establishing proximate causation, so his products liability claims were
properly dismissed by the district court.
4
Garcia also brought failure-to-warn claims against Safe Boats and
Mercury Marine. The district court dismissed his failure-to-warn claims on
the grounds that Safe Boats and Mercury Marine owed the duty to warn to
the United States, not to Garcia; so, assuming there was a breach of that duty,
only the United States could properly maintain negligent failure-to-warn
claims against Safe Boats and Mercury Marine. Garcia does not contest that
no duty to warn was owed to Cervantes—he even admits that Safe Boats’
and Mercury Marine’s duty was owed to the Coast Guard.
Garcia instead argues that the district court erred in treating his
failure-to-warn claims as negligence, rather than strict liability, claims. In his
second amended complaint, Garcia brings his failure-to-warn claim against
83
Garcia’s expert, Robert Swint, testified that the SPC-LE has “very good
visibility up to about 10 [knots] and very good visibility at about 30 [knots].” He confirmed
that an SPC-LE vessel would have no forward visibility issues at speeds above 30 knots.
Similarly, CDI Engineering Solutions generated a report for the Coast Guard that
concluded that, whatever limitations there may be on the vessel’s forward visibility, they
are not present when the vessel is traveling in excess of 30 knots.
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Safe Boats under a strict liability theory. But Garcia also brought these claims
under the alternative theory of negligence. Under the negligence theory,
Garcia alleges Safe Boats and Mercury Marines were aware of the products’
defects, had a duty to provide the Coast Guard with a post-sale warning and
instructions, and breached that duty. The district court correctly applied the
Second Restatement and found that any duty to warn was owed to the
products’ user (the United States), not to a bystander (Cervantes). “For the
manufacturer of a product, the general duty of care includes a duty to warn
when the manufacturer ‘knows or has reason to know’ that its product ‘is or
is likely to be dangerous for the use for which it is supplied’ and the
manufacturer ‘has no reason to believe’ that the product’s users will realize
that danger.” 84 Because Safe Boats and Mercury Marines owed no duty to
Cervantes, the district court correctly dismissed Garcia’s negligence failure-
to-warn claims.
Assessing Garcia’s failure-to-warn claims under the alternative strict
liability theory, Garcia’s claims still warrant dismissal because he does not
establish causation. To maintain a failure-to-warn claim in strict liability,
Garcia must present evidence that the absence of adequate warnings caused
Cervantes’ injuries. As with his design defect claims, Garcia does not show
how the presence of warnings about the design of Safe Boats’ vessel or
Mercury Marine’s engines would have prevented Cervantes’ fatality. 85 In
the absence of a showing that the inadequate instructions or warnings caused
84
Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 993 (2019) (quoting
Restatement (Second) of Torts § 388).
85
Garcia points to Restatement (Third) of Torts § 2(c) and relies on our decision
in Krummel. 206 F.3d 548 (5th Cir. 2000). As stated earlier, Krummel is distinguishable,
and we apply the Second Restatement for cases in maritime law.
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Cervantes’ fatality, Garcia’s failure-to-warn claims were also properly
dismissed.
5
Finally, Garcia argues that Safe Boats failed to bear its burden on the
affirmative government contractor defense. But because we find that Safe
Boats and Mercury Marine are not liable for either the design defect or the
failure-to-warn claims, we need not address their government contractor
defense.
C
Garcia also brought a gross negligence claim against Safe Boats and
Mercury Marine, seeking exemplary damages. The district court did not
explicitly address this gross negligence claim in its order, but it did dismiss
all Garcia’s “negligence-based claims.” And because Garcia does not raise
the gross negligence claim on appeal—and Mercury Marine and Safe Boats
do not brief this claim—we do not address dismissal of this claim.
D
Finally, Garcia brought wrongful death claims against the United
States, Safe Boats, and Mercury Marine, which the district court dismissed.
Garcia argues that the district court erred in concluding there was no
underlying tort to sustain his wrongful death claims.
Federal maritime law recognizes a wrongful death cause of action. 86
This extends to both negligence and strict products liability. 87 When a non-
seafarer (someone other than a seaman or longshoreman) is killed within
86
See Moragne v. State Marine Lines, Inc., 398 U.S. 375, 409 (1970).
87
See Norfolk, 532 U.S. at 814; Schoenbaum, Admiralty & Mar. Law
§ 8:3.
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state waters, the remedies applicable under the general maritime law may be
supplemented by state law remedies, including state statutory wrongful death
and survival remedies. 88 To recover these damages, a plaintiff must prove
that the circumstances of the death meet the requirements of the relevant
state law.
Here, Texas’s Wrongful Death Act is the relevant law. 89 The Act
“applies only if the individual injured would have been entitled to bring an
action for the injury if the individual had lived.” 90 As discussed above, there
are no claims that Cervantes would have been entitled to bring.
Garcia reiterates the arguments he makes for the other claims to assert
that Cervantes would have been entitled to bring personal injury claims. His
arguments fail because they are predicated on the assumption that the United
States owed a duty to Cervantes and that Cervantes had standing to bring the
products liability claims, both of which we rejected.
Accordingly, because Garcia has no sustainable claim against the
United States, Safe Boats, and Mercury Marine, the district court did not err
in dismissing his wrongful death claims.
IV
For these reasons, we AFFIRM the district court’s dismissal of
Garcia’s claims against the United States, Safe Boats, and Mercury Marine.
88
See Yamaha, 516 U.S. at 216 (holding that damages available for the jet ski death
of an individual were governed by state law).
89
Tex. Civ. Prac. & Rem. § 71.002 et seq.
90
Id. § 71.003(a).
32