SEA FEVER CORPORATION, PETITIONER V. UNITED STATES OF AMERICA

HONOUR BROWN, ETC., ET AL., PETITIONERS V. UNITED STATES OF AMERICA

No. 86-202 and 86-528
In the Supreme Court of the United States
October Term, 1986
On Petitions for a Writ of Certiorari to the United States Court of Appeals for the First Circuit
Brief for the United States in Opposition
TABLE OF CONTENTS Opinions below Jurisdiction Question presented Statement Argument Conclusion

OPINIONS BELOW

The opinion of the court of appeals in No. 86-528 (Pet. App. A1-A12) is reported at 790 F.2d 199. /1/ The order of the court of appeals in No. 86-202 (Pet. App. A37) is unreported. The opinion of the district court (Pet. App. A12-A36) is reported at 599 F. Supp. 877.

JURISDICTION

The judgments of the court of appeals were entered on May 13, 1986. The petition for a writ of certiorari in No. 86-202 was filed on August 7, 1986. On August 5, 1986, Justice Brennan issued an order extending the time for filing a petition for a writ of certiorari in No. 86-528 to and including September 25, 1986, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the Suits in Admiralty Act, 46 U.S.C. 741 et seq., waives the sovereign immunity of the United States with respect to maritime tort claims arising out of discretionary government functions.

2. Whether, assuming a discretionary function exception to the waiver of immunity under the Suits in Admiralty Act, that exception encompasses petitioners' claims that they were injured by inaccurate weather forecasts resulting from government decisions concerning the weather forecasting program.

STATEMENT

1. Pursuant to the National Data Buoy Program, which is administered by the National Oceanic and Atmospheric Administration (NOAA), weather buoys are moored at various points off the coast of the United States. The buoys transmit weather data, including wind speed and direction, sea level barometric pressure, air temperature, sea surface temperature, and wave height, to the National Meteorological Center. The data are relayed to offices of the National Weather Service (NWS) and used, along with satellite photographs and reports from passing ships, in preparing weather forecasts. The maintenance and repair of weather buoys is supervised by the NOAA Data Buoy Center. The Center coordinates the schedule of repairs with a private maintenance contractor and the Coast Guard, which provides ship support in connection with the maintenance program. Pet. App. A3, A18-A20.

Beginning in March 1977, buoy number 6N12 was located at station 44003 in Georges Bank, off the New England coast. The buoy ceased reporting wind speed and direction in May 1980, was further damaged in early August 1980 when struck by a passing vessel, and was repaired on August 11 so that it was again functioning in all respects. In early September, the wind speed and direction data from buoy 6N12 were found to be erratic; the data exhibited a characteristic known as 'spiking.' Pet. App. A3; see also id. at A19-A20. The Meteorological Center accordingly stopped transmitting information from buoy 6N12 to the National Weather Service offices (id. at A3). Plans to promptly replace the malfunctioning buoy were frustrated when two possible substitutes went adrift. Further temporary repairs to buoy 6N12 were not attempted because the Data Buoy Center planned to replace buoy 6N12 with buoy 6N3 in January 1981. Id. at A4.

On November 21, 1980, the fishing vessels SEA FEVER and FAIRWIND left Hyannis, Massachusetts, for the fishing grounds near Georges Bank. The National Weather Service marine weather forecast for that date predicted good weather in the fishing grounds. The vessels arrived at the fishing grounds on November 22. "The 5:00 a.m. (weather) report (on November 22) carried a gale warning, predicting northwest winds, 30 to 40 knots for the area, diminishing by night, with seas 6 to 12 feet, subsiding at night. In point of fact, the vessels were already experiencing such winds, and even greater seas. This was too much weather, but because of the wind's direction, it was impossible to turn back." Pet. App. A2; see also id. at A13-A17. The weather report broadcast six hours later warned of an even more intense storm, but "(a)gain, the storm was already even greater than the forecast" (id. at A2). This type of storm is known as a "bomb" because of its "sudden and explosive development" (ibid.). The FAIRWIND sank and three of her crew drowned; the SEA FEVER suffered damage and one of her crew, Gary Brown, drowned (id. at A2, A18).

Petitioners Honour Brown, Angelo Garnos, and George Berry, the personal representatives of deceased crew members, subsequently commenced this action against the United States in the United States District Court for the District of Massachusetts. They sought damages under the Suits in Admiralty Act, 46 U.S.C. 741 et seq., alleging that the absence of information from a buoy at station 44003 rendered the NWS forecasts inaccurate, that the vessels acted in reliance upon those forecasts, and that the deaths of the crew members therefore were proximately caused by the government's negligent failure to maintain the buoy. /2/

The district court entered judgment in favor of petitioners on the issue of liability (Pet. App. A13-A36). It first observed that "(a)s with all tort actions, (petitioners) bear the burden of showing: (1) that (the United States) owed them a duty of care; (2) that the duty was breached; and (3) that the breach caused (petitioners) harm" (id. at A24).

With respect to the government's duty, the court concluded that "(t)he legislative history leading to the creation of the NOAA demonstrates clearly that the government intended to undertake and meet the responsibility for providing a reliable weather monitoring and prediction system for the use of commercial fishermen" (Pet. App. A24 (footnote omitted)). Since fishermen relied upon these weather reports, the court found that the government owed these fishermen "a duty to take reasonable care in maintaining its weather observation and prediction system" (id. at A26). The government breached this duty, according to the district court, because "the conscious decision not to repair the Georges Bank buoy in September merely because it was scheduled to be replaced in January was unreasonable" (id. at A29).

The court found that the requirement of causation was satisfied by "evidence that the * * * breach of duty was a 'substantial factor' in causing the deaths of fishermen here" (Pet. App. A30). It cited expert testimony that "the NWS forecast was significantly incorrect as of 7 a.m. on November 21, 1980, that a storm warning should have been issued (on that date) * * * , and that the lack of buoy data from Georges Bank was critical to the NWS error" (ibid.). The court further noted that the vessel captain testified that he would have turned back if the forecast had contained a storm warning (ibid.).

The court held that the government was not immune from liability under the discretionary function exception. /3/ It observed that "the government action here did not involve a policy judgment. The decision to have a weather monitoring and prediction system and the decisions concerning the methods for obtaining observational data may have involved policy judgments. * * * But, once a system was in place and mariners began to rely on it, the time for policy judgments was past" (Pet. App. A33 (citations omitted)). The court found that because the government "negligently chose not to keep (the weather system) in repair and failed to issue any warning concerning its disrepair to those relying on it," the exception did not apply (ibid.). /4/

2. The court of appeals unanimously reversed (Pet. App. A1-A12), holding that the government was protected from liability because the decision to issue a weather forecast without repairing the buoy was the result of the exercise of discretion within the meaning of the discretionary function exception to tort liability. /5/ The court observed that "the government not only has discretion whether or not to engage (in a discretionary function), but discretion to determine the extent to which it will do so" (id. at A5). It noted its own decision in Chute v. United States, 610 F.2d 7 (1st Cir. 1979), cert. denied, 446 U.S. 936 (1980), where the court rejected the plaintiff's argument that the Coast Guard was liable in tort because it failed to mark a sunken wreck with the most "effective" type of buoy (Pet. App. A6):

The rationale of Chute was that although the Coast Guard is known to have undertaken marking dangers to navigation, the extent to which it will do so is a discretionary function. There can be no justified reliance upon, or expectation of, any particular degree of performance; something more is needed to establish liability. "(T)here are various degrees of protection. Courts have neither the expertise, the information, nor the authority to allocate the finite resources available to the Secretary among competing priorities." 610 F.2d at 12.

The court of appeals observed that the government did not make an affirmative misstatement of fact to the effect that an operating buoy was currently providing wind data from location 44003, and stated that reports referring to individual reporting sites had not included wind data from station 44003 since September 9, 1980. "(Petitioners') complaint is, rather, that the government's weather predictions were not up to an adequate standard because the forecaster lacked that particular information" (Pet. App. A8 (footnote omitted)). It noted that petitioners' theory of liability could not be limited to the failure to maintain a supplier of information such as the buoy, but (id. at A8-A9)

would apply to anything judicially found unreasonably to impair the quality of the prediction. An expert might testify, and a court accept, that to prepare a fully adequate weather report would call for still additional buoys, or for more advanced computers, or for more operators. Or it might find malfeasance in the processing. All of these are matters which Congress reserved, both to itself in respect to appropriations, and to the agencies' conduct, by the discretionary exception from the F.T.C.A.'s consent to suit.

The court of appeals also found that the district court erred by concluding that fishermen's reliance upon NWS forecasts subjected the government to liability. The legislative history showing that Congress recognized the need for accurate weather forecasting "prove(d) too much" according to the court of appeals because "(p)resumably a need is found for every government service or it would not be undertaken in the first place. Need cannot, by implication, amend the plain language of the discretionary function exception. * * * (T)he fishermen cannot unilaterally impose on the government a liability it has expressly disclaimed" (Pet. App. A10).

Finally, the court stated that "the Weather Service is a particularly unfortunate area in which to establish a duty of judicially reviewable due care" (Pet. App. A10). Thus, "(a) weather forecast is a classic example of a prediction of indeterminate reliability, and a place peculiarly open to debatable decisions, including the desirable degree of investment of government funds and other resources. Weather predictions fail on frequent occasions. If in only a small proportion parties suffering in consequence succeeded in producing an expert who could persuade a judge, as here, that the government should have done better, the burden on the fisc would be both unlimited and intolerable" (id. at A10-A11). The court concluded that the discretionary function exception bars the imposition of this sort of liability upon the government. /6/

ARGUMENT

1. Petitioners contend (86-528 Pet. 5-8) that the Suits in Admiralty Act subjects the United States to tort liability for acts and omissions relating to discretionary government functions. Petitioners' argument is meritless.

a. In 1960, Congress expanded the Suits in Admiralty Act to include all maritime claims against the United States; the statute encompasses any action against the United States that would have been maintainable in admiralty "if a private person or property were involved" (46 U.S.C. 742). Prior to that amendment, maritime tort claims fell under the Federal Tort Claims Act and jurisdiction was in federal district court. /7/

Despite the absence of an express discretionary function exception in the Suits in Admiralty Act, all but one of the courts of appeals that have addressed the issue have concluded that the 1960 amendment to the Suits in Admiralty Act did not expose the government to liability for discretionary functions that was previously barred under the then-applicable FTCA. Gercey v. United States, 540 F.2d 536, 539 (1st Cir. 1976), cert. denied, 430 U.S. 954 (1977); Wiggins v. United States, 799 F.2d 962, 964-966 (5th Cir. 1986); Bearce v. United States, 614 F.2d 556, 558-560 (7th Cir.), cert. denied, 449 U.S. 837 (1980); Williams v. United States, 747 F.2d 700 (11th Cir. 1984), aff'g 581 F. Supp. 847, 852 (S.D. Ga. 1983); Canadian Transport Co. v. United States, 663 F.2d 1081, 1085-1086 (D.C. Cir. 1980); see also Gemp v. United States, 684 F.2d 404, 408 (6th Cir. 1982). Two related rationales support the conclusion reached by these courts.

First, in United States v. United Continental Tuna Corp., 425 U.S. 164 (1976), this Court rejected the argument that the 1960 amendment to the Suits in Admiralty Act "enable(d) suits previously cognizable under the Public Vessels Act to be brought under the Suits in Admiralty Act, free from the restrictive provisions of the Public Vessels Act" (425 U.S. at 178) -- in that case, limiting suit to foreign nationals whose governments allow a reciprocal right of action. Observing that "Congress' basic purpose" was "to remove uncertainty over the proper forum for a claim against the United States," the Court declined to adopt an interpretation of the 1960 amendment that "would effectively nullify specific policy judgments made by Congress when it enacted the Public Vessels Act" (id. at 178, 181).

The reasoning applied by the Court in United Continental Tuna Co. is equally relevant here. Prior to the 1960 amendment, the exceptions to liability contained in the Tort Claims Act applied with respect to maritime tort claims against the United States. Nothing in the legislative history of the 1960 amendments indicates that Congress intended to exempt maritime tort claims from this carefully crafted scheme. Congress's sole goal was to clarify the proper forum for maritime claims; it did not intend to expand the waiver of the sovereign immunity so as to increase the government's tort liability. Bearce v. United States, 614 F.2d at 559-560. /8/

Second, and more importantly, the discretionary function exception touches upon important constitutional principles; those principles support the implication of an exception applicable to tort actions under the Suits in Admiralty Act.

This Court has observed that at the time that Congress enacted the Federal Tort Claims Act "(i)t was believed that claims of the kind embraced by the discretionary function exception would have been exempted from the waiver of sovereign immunity by judicial construction" (United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 810 (1984)). This is because "the exemption for discretionary functions * * * was derived from the doctrine of separation of powers, a doctrine to which the courts must adhere even in the absence of an explicit statutory command" (Canadian Transport Co. v. United States, 663 F.2d at 1086). Judicial scrutiny of discretionary Executive Branch determinations would permit "'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort," and thereby implicate separation of powers concerns (Varig Airlines, 467 U.S. at 814). Congress believed that the courts would avoid improper interference with Executive Branch decisionmaking by construing the Tort Claims Act to bar tort actions arising out of discretionary government determinations.

Congress included an express discretionary function exception in the Tort Claims Act "to make clear that the Act was not to be extended into the realm of the validity of legislation or discretionary administrative action" (Varig Airlines, 467 U.S. at 810). In the absence of such an exception from tort liability under the Suits in Admiralty Act, "respect for the doctrine of separation of powers requires that * * * courts should refrain from passing judgment on the appropriateness of actions of the executive branch which meet the requirements of the discretionary function exception of the (Tort Claims Act)" (Canadian Transport Co. v. United States, 663 F.2d at 1085). Otherwise, "every decision of a government official cognizable under (the) Act would be subject to second-guessing by a court on the claim that the decision was negligent" (Wiggins v. United States, 799 F.2d at 966).

b. The Fourth Circuit reached a different conclusion in Lane v. United States, 529 F.2d 175, 179 (1975), holding that the government's liability under the Suits in Admiralty Act was not limited by a discretionary function exception. However, the Lane decision predated this Court's decision in United Continental Tuna Co. and, as we have discussed, this Court's construction of the 1960 amendment to the Suits in Admiralty Act undercuts the result in Lane.

Moreover, a subsequent Fourth Circuit decision appears to contradict the decision in Lane. In Faust v. South Carolina State Highway Department, 721 F.2d 934 (1983), cert. denied, 467 U.S. 1226 (1984), one of the issues was whether the United States could be liable in tort under the Suits in Admiralty Act for issuing a permit that authorized the maintenance of an obstruction in a navigable waterway. The court of appeals held in favor of the government, stating that it knew of "no decision holding the United States liable in tort on the basis of an alleged failure by the Corps of Engineers to fulfill its statutory mandate to regulate obstructions placed in the navigable waterways" (721 F.2d at 938 (footnote omitted)). The court noted that "several courts have held the grant of a permit (under the federal statute) to be an unreviewable discretionary function. If the issuance of the permit is unreviewable, we cannot see how the United States can be held liable for having issued a permit to allow a hazardous obstruction to exist" (id. at 939 (citations omitted)).

Although the Faust court did not frame the issue in terms of the discretionary function exception, and did not discuss the Fourth Circuit's prior decision in Lane, it is difficult to reconcile the reasoning in the two cases. The Faust court concluded that the United States could not be held liable in tort for breaching a statutory duty because the exercise of this statutory authority was not subject to judicial review. Most significantly, the cases cited by the court in support of that conclusion were cases applying the discretionary function exception to bar the imposition of tort liability upon the United States. See Faust, 721 F.2d at 939, citing Gemp v. United States, supra, and Boston Edison Co. v. Great Lakes Dredge & Dock Co., 423 F.2d 891 (1st Cir. 1970). As the Fifth Circuit observed in declining to follow the Fourth Circuit's decision in Lane, "(i)t can fairly be said (in light of Faust) that the Fourth Circuit is no longer on record as having held unassailably that no discretionary function exception is implied in the (Suits in Admiralty Act). It has weakened or cast doubt upon the holding in Lane, although it has not overruled it" (Wiggins v. United States, 799 F.2d at 965). /9/ In view of the uncertain status of Lane, there is no conflict among the courts of appeals warranting resolution by this Court. /10/

2. Petitioners also argue (85-528 Pet. 8-13) that the court of appeals erred by concluding that their claim is barred by the discretionary function exception, assuming such an exception is applicable. The court of appeals' decision is correct; review by this Court is not warranted.

a. This Court considered the discretionary function exception in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), supra. The Court concluded that Congress adopted the exception because it "wished to prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. By fashioning an exception for discretionary governmental functions * * * Congress took 'steps to protect the Government from liability that would seriously handicap efficient government operations" (467 U.S. at 814 (citation omitted)).

The particular question in Varig Airlines was whether the government could be held liable in tort for negligently failing to perform certain inspections in connection with the issuance of certificates authorizing the manufacture of an airplane. The Court noted that the plaintiffs "challenge(d) two aspects of the certification procedure: the (Federal Aviation Administration's) decision to implement (a) 'spot-check' system of compliance review, and the application of that 'spot-check' system to the particular aircraft involved in these cases" (467 U.S. at 819). The Court concluded that the agency's "implementation of a mechanism for compliance review" constituted a discretionary activity (ibid.). It observed that "decisions (as to the manner of enforcing regulations) require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objects sought to be obtained against such practical considerations as staffing and funding. Here, the FAA has determined that a program of 'spot-checking' manufacturers' compliance with minimum safety standards best accommodates the goal of air transportation safety and the reality of finite agency resources" (id. at 820).

The Court further concluded that "the acts of FAA employees in executing the 'spot-check' program in accordance with agency directives are protected by the discretionary function exception as well" (467 U.S. at 820). It observed that "(t)he FAA employees who conducted compliance reviews of the aircraft involved in this case were specifically empowered to make policy judgments regarding the degree of confidence that might reasonably be placed in a given manufacturer, the need to maximize compliance with FAA regulations, and the efficient allocation of agency resources" (ibid.). /11/

The court of appeals here observed (Pet. App. A8) that the government determination that is at issue in the present case is the National Weather Service's decision that it possessed sufficient information to issue a weather forecast despite the lack of information from a buoy at location 44003. The question is whether that determination constituted an exercise of discretion encompassed within the discretionary function exception. /12/ The decision that there is sufficient information to issue a weather forecast obviously is discretionary. The Court concluded in Varig Airlines that the Federal Aviation Administration exercised discretion within the meaning of the exception when it settled upon the quantity of information that must be gathered prior to the issuance of a certificate. The determination of the agencies of government charged with predicting the weather that a particular amount and character of information is sufficient to permit the issuance of a weather forecast similarly is a discretionary determination that is not subject to review in a tort action.

Indeed, in a filed as inherently discretionary as weather prognostication, the designation of the amount of information necessary to support an official government prediction plainly rests upon the consideration of the factors identified by this Court in Varig Airlines -- the agency's mission, its expert judgment, and practical constraints such as staffing and funding. As one of the members of the court of appeals panel observed, "(i)f courts are to interfere so as to ensure that the weather service continues to maintain a given level or quality of prediction, which is made up of numerous and varied factors, in effect, courts would be assessing the adequacy of this government service, for who is to say what components are necessary to maintaining the previously set level of prediction." Pet. App. A12; see also id. at A8-A9 (determination of information needed "to prepare a fully adequate weather report" reserved to Congress and "to the agencies' conduct"). The determination challenged by petitioners therefore is protected from review by the discretionary function exception. /13/

b. Petitioners contend that the decision of the court below conflicts with a number of decisions of other courts of appeals. Although there is a lack of unanimity among the courts of appeals regarding the scope of the discretionary function exception, this case does not present an occasion to consider the conflicting approaches to that question because the United States would prevail under either approach. /14/

The appellate decisions cited by petitioners adopt the rule that the discretionary function exception extends only to "policy" and "planning" activities and not to "operational" activities. Other courts have not recognized such a limitation, and have instead concluded that the exception applies as long as the government decision is the result of the exercise of discretion. See, e.g., Wiggins v. United States, 799 F.2d at 966-967; Hylin v. United States, 755 F.2d 551 (7th Cir. 1985); General Public Utilities Corp. v. United States, 745 F.2d 239 (3d Cir. 1984), cert. denied, 469 U.S. 1228 (1985).

The decision below does not conflict with the decisions cited by petitioners, however, because the selection of a standard for the issuance of weather predictions plainly is a matter of planning or policy. As we have discussed, the standard for the issuance of forecasts is a matter of great significance in the weather forecasting program; that determination is surely a policy or planning determination and, under Dalehite, the implementation of that policy determination cannot give rise to liability (see 346 U.S. at 36). Accordingly, even if the court below had adopted a rule limiting the discretionary function exception to planning determinations, the exception would bar petitioners' claim. /15/

c. Even if the conflict among the courts of appeals regarding the construction of the discretionary function exception were properly presented in this case, review by this Court would not be appropriate because the judgment of the court of appeals can be supported on several alternative grounds.

First, the district court plainly erred by concluding that the government owed a duty of care to petitioners' decedents in connection with the issuance of weather forecasts. Indeed, the court of appeals rejected (Pet. App. A7-A8, A10) the district court's statement that the legislative history demonstrated that the government owed a duty of care to fishermen in connection with weather forecasting. It went on to conclude that "the Weather Service is a particularly unfortunate area in which to establish a duty of judicially reviewable due care" (id. at A10). In view of these statements, and the essentially universal conclusion of the lower courts that tort liability may not be premised upon allegedly negligent weather forecasts (see pages 24-25, infra), the judgment below is justified on the ground that the government owed no duty to petitioners' decedents. /16/

Second, although the court of appeals did not squarely address the question, its opinion strongly indicates that the government's decision to issue a weather forecast under the circumstances was a reasonable one (see Pet. App. A4 & n.3). We submit that the government acted reasonably in (1) repairing buoy 6N12 in August 1980; (2) planning to deploy a substitute buoy when buoy 6N12 became inoperative; and (3) delaying further maintenance measures in view of the imminent replacement of buoy 6N12. Since the government's conduct was reasonable, petitioners' tort claims must fail on the ground that the government did not engage in negligent conduct.

Third, prior to the district court's decision in the present case, the courts repeatedly had rejected attempts to hold the government liable in tort for inaccurate weather forecasts. See National Mfg. Co. v. United States, 210 F.2d 263, 279-280 (8th Cir.), cert. denied, 347 U.S. 967 (1954); Williams v. United States, 504 F. Supp. 746 (E.D. Mo. 1980); Bartie v. United States, 216 F. Supp. 10 (W.D. La. 1963). /17/ As the court of appeals observed, "(a) weather forecast is a classic example of a prediction of indeterminate reliability, and a place peculiarly open to debatable decisions, including the desirable degree of investment of government funds and other resources. Weather predictions fail on frequent occasions. If in only a small proportion parties suffering in consequence succeeded in producing an expert who could persuade a judge, as here, that the government should have done better, the burden on the fisc would be both unlimited and intolerable" (Pet. App. A10-A11). In view of the special considerations implicated by weather forecasting, the issue in this case properly is regarded as sui generis and, in the absence of a conflict among the courts of appeals regarding the government's liability for weather forecasting, review by this Court is not warranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

ROBERT S. GREENSPAN

ROBERT V. ZENER

Attorneys

DECEMBER 1986

/1/ Unless otherwise noted, citations to "Pet. App." refer to the appendix to the petition in No. 86-528.

/2/ Petitioner Sea Fever Corporation, the owner of one of the fishing vessels, asserted a third-party claim against the United States seeking indemnification and contribution in connection with its settlement of an action commenced by petitioner Honour Brown alleging that Sea Fever's negligence and the unseaworthiness of its vessel caused the death of Brown's decedent. The district court denied the claim, holding that the settlement "arose out of a lawsuit alleging that Sea Fever was responsible for its own negligence and the unseaworthiness its vessel." Brown v. United States, 615 F. Supp. 391, 407 (D. Mass. 1985). Since the underlying claim did not allege that Sea Fever was responsible for the government's negligence, the district court found that "Sea Fever has no cause of action for tort indemnification" (ibid.). The district court also rejected Sea Fever's claim for contribution from the government. The court of appeals dismissed Sea Fever's appeal, observing that its claim for indemnification and contribution was mooted by the court's determination that the government was not liable to the other petitioners (Pet. App. A1 n.*, A37). Sea Fever does not raise any issues separate from the other petitioners before this Court (see 86-202 Pet. 3-4); it simply requests the vacation of the adverse ruling by the court of appeals in the event this Court reverses the judgment challenged in No. 86-528.

/3/ Following Gercey v. United States, 540 F.2d 536, 539 (1st Cir. 1976), the district court found that the discretionary function exception applies to cases under the Suits in Admiralty Act (see Pet. App. A31).

/4/ The court also rejected the government's contention that petitioners' claims were barred by the misrepresentation exception to tort liability (Pet. App. A34-A36). In its subsequent opinion on the issue of damages, the district court awarded petitioners in excess of $1.25 million (Brown v. United States, 615 F. Supp. at 404-405).

/5/ The court noted (Pet. App. A2-A3 & n.1) that the discretionary function exception contained in the Federal Tort Claims Act (28 U.S.C. 2680(a)) applies to actions against the United States under the Suits in Admiralty Act, which petitioners had conceded to be the law in the First Circuit (Appellees' Br. 25 n.2).

/6/ The court also rejected petitioners' argument that the government had a duty to inform fishermen that the buoy at location 44003 was not providing wind data. It stated that "the government has a policy not to report the underlying structure or basis of its weather computing system, or of changes therein. Such a policy is a classic discretionary matter not subject to judicial review" (Pet. App. A11).

Judge Pettine concurred (Pet. App. A12), emphasizing that petitioners' claim did not rest upon an affirmative misstatement of fact, but "rested on the prediction itself, which at any one time is made up of a number of factors, no one of which is necessarily determinative" (ibid.). He observed that imposing liability upon the government would require courts to "assess ( ) the adequacy of this government service, for who is to say what components are necessary to maintaining the previously set level of prediction" (ibid.).

/7/ Prior to 1960, the Suits in Admiralty Act applied solely to cases involving government merchant vessels. Contract claims that did not fall within that category -- and that also were not cognizable under the Public Vessels Act -- could only be brought under the Tucker Act; if the contract claim exceeded $10,000, jurisdiction was in the Court of Claims. United States v. United Continental Tuna Corp., 425 U.S. 164, 166-167, 172-173 (1976). Congress amended the Suits in Admiralty Act because of the "difficulty in determining the appropriate forum for a maritime claim against the United States" (id. at 175).

/8/ The express exception of maritime claims from the Tort Claims Act (see 28 U.S.C. 2860(d)), which was added when Congress expanded the Suits in Admiralty Act, does not indicate that Congress intended such a result. The exception reduces confusion over the procedures governing maritime tort claims by eliminating the district courts' civil jurisdiction over tort claims cognizable in admiralty under the Suits in Admiralty Act.

/9/ Indeed, Faust is not the only case that casts doubt upon the validity of Lane. In Magno v. Corros, 630 F.2d 224 (4th Cir. 1980), cert. denied, 451 U.S. 970 (1981), the court rejected the plaintiff's claim that the Coast Guard was negligent in the manner in which it lighted a dike. In support of its conclusion the court stated in part:

Given the tremendous expense which would undoubtedly be involved in lighting all the authorized obstructions under the control of the Coast Guard, in the absence of a Congressionally imposed requirement of additional marking, we feel that it is usually inappropriate for a federal court to impose such a requirement and in effect direct the Coast Guard how to spend its limited resources. Every dollar of its money that we direct it spend is diverted from another regulatory activity.

630 F.2d at 229 (footnote omitted). The court cited in support of this statement the portion of the opinion in Gercey v. United States, supra, that held that the discretionary function exception applied to tort actions under the Suits in Admiralty Act. The reliance upon Gercey also calls into question the vitality of Lane.

/10/ Petitioners cite (86-528 Pet. 6-7) De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971), but that decision was rejected by the Fifth Circuit in Wiggins v. United States, 799 F.2d at 964-966. Petitioners also contend (86-528 Pet. 7) that the Ninth Circuit has reached a conclusion that conflicts with the decision below, but the decision upon which they rely is wholly irrelevant to the issue presented here. The holding in Nelson v. United States, 639 F.2d 469 (9th Cir. 1980), was that the government was not liable for the conduct of an independent contractor (see 639 F.2d at 479). In the course of reaching that conclusion, the court of appeals addressed the question whether the plaintiff's claim against the United States fell within the district court's admiralty jurisdiction. The court observed that "(t)he (plaintiff's) suits alleged negligence, and the court had jurisdiction under the Suits in Admiralty Act. The Suits in Admiralty Act, however, does not itself provide a cause of action. It merely operates to waive the sovereign immunity of the United States in admiralty suits" (id. at 473 (citation omitted)). This discussion has nothing whatever to do with the question whether the discretionary function exception applies in actions under the Suits in Admiralty Act; the court simply observed that the Act supplied a basis for jurisdiction and went on to find that the plaintiff's allegation of negligence stated a cause of action (ibid.). Since the court was not considering any issue relating to the discretionary function exception, this general statement cannot be interpreted as rejecting the application of the exception to maritime tort actions.

/11/ The same factors are relevant in determining whether the discretionary function exception applies in a situation outside the regulatory context. In Dalehite v. United States, 346 U.S. 15 (1953), a decision strongly reaffirmed in Varig Airlines (see 467 U.S. at 810-811, 813), the Court relied upon similar factors in concluding that the discretionary function exception barred tort claims based upon non-regulatory government activities. The case arose as a result of the explosion of chemical fertilizer stored in a government warehouse. The plaintiffs challenged as negligent the decisions leading up to the production of the fertilizer as well as the manner of storage of the fertilizer. The Court held that all of the claims were barred by the discretionary function exception. It observed that the exception "includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable" (346 U.S. at 35-36 (footnote omitted)).

/12/ Petitioners identify the government decision at issue here as the decision whether to replace buoy 6N12 (see, e.g., Pet. 10, 11). But petitioners' decedents did not directly rely upon either the placement of that buoy or the information that would have been transmitted by that buoy; their claim is that the government was negligent in issuing a weather forecast without the information that would have been supplied by the buoy. See Pet. App. A8 ("(petitioners') complaint is * * * that the government's weather predictions were not up to an adequate standard because the forecasters lacked (the data from the particular buoy)"). The question, therefore, is whether petitioners may obtain review in this tort action of the government's decision that it had sufficient information to issue a weather forecast.

Even if the decision in issue were solely whether to replace the particular buoy, the discretionary function exception would apply. The decision against further maintenance efforts was based upon the general procedures governing replacement of buoys and reflected policy determinations regarding the management of the entire buoy program, including the schedule for upgrading of buoys and the propriety of undertaking repairs when a buoy is scheduled to be replaced. Since the discretionary function exception "includes determinations made by executives or administrators in establishing plans, specifications, or schedules of operations" (Dalehite, 346 U.S. at 35-36 (footnote omitted)), it shielded the government from tort liability for the decision not to repair buoy 6N12. See also note 13, infra.

/13/ Petitioners assert (86-528 Pet. 10, 13) that the court below erred because its conclusion that the discretionary function exception barred their claim was based solely upon the government's authority to set priorities for the use of limited resources. First, the court did not rest its decision solely upon resource allocation considerations. It found that the selection of the data necessary to assure "the quality of the prediction" was a matter left to the discretion of Congress and the relevant agencies (Pet. App. A8-A9). Second, contrary to petitioners' implication, the fact that a decision rests upon staffing and funding considerations does not automatically render the discretionary function exception inapplicable. This Court in Varig Airlines twice cited these considerations in concluding that the challenged determinations were encompassed within the discretionary function exception (see 467 U.S. at 820). The courts of appeals have recognized that discretionary decisions resting upon these considerations fall within the discretionary function exception. See, e.g., Wiggins v. United States, 799 F.2d at 966-967 (decision not to remove sunken pilings fell within discretionary function exception; decision rested in part on determination that "(i)t was uneconomic to do so").

/14/ Petitioners also intimate (86-528 Pet. 8-9) that the construction of the discretionary function exception adopted by the court below conflicts with this Court's decision in Indian Towing Co. v. United States, 350 U.S. 61 (1955). However, the Court explained in Varig Airlines, 467 U.S. at 812, that "the discretionary function exception was not implicated in Indian Towing" because the government had conceded the point.

/15/ Petitioners emphasize two decisions concerning the placement of navigation buoys. See 86-528 Pet. 11-12, citing Eklof Marine Corp. v. United States, 762 F.2d 200 (2d Cir. 1985), and Drake Towing Co. v. Meisner Marine Construction Co., 765 F.2d 1060 (11th Cir. 1985). Both of these cases involved the government's alleged failure to properly place adequate buoys, used not to transmit weather or other information, but simply to act as physical markers as a warning to ships in the area. The factual similarity to the present case is thus far more apparent than real. See Eklof Marine Corp., 762 F.2d at 201-202; Drake Towing Co., 765 F.2d at 1062-1063. The decisions concerning the site, location, and number of such inert buoys were found in those cases not to implicate policy or planning considerations. See Eklof Marine Corp., 762 F.2d at 205; Drake Towing Co., 765 F.2d at 1064-1065. As we have discussed, the determination at issue in this case involves a broad and complex range of considerations about what information is reasonably necessary to an appropriate weather forecasting system, and does implicate planning and policy concerns. It therefore plainly falls within the discretionary function exception.

Further, in those cases, the inadequate numbers or misplacement of the buoys posed an affirmative hazard to ships relying on them for guidance. See Eklof Marine Corp., 762 F.2d at 203; Drake Towing Co., 765 F.2d at 1065-1066. Here, by contrast, the court of appeals emphasized that the government did not increase the hazard to petitioners' decedents through any affirmative misrepresentation (see Pet. App. A8, A12); the hazard stemmed from the weather rather than the action of the government (id. at A9). And petitioners' decedents relied upon the forecast, not the buoy. These decisions relating to the placement of navigation buoys are therefore inapposite.

Finally, the court of appeals' reference (Pet. App. A7) to a disagreement between Eklof and its decision in Chute v. United States, supra, does not indicate the existence of a conflict between Eklof and the present case. Although the government decisions challenged in Eklof and Chute may have rested solely upon government decisions allocating limited resources, the decision in the present case rested upon a variety of other discretionary considerations. See pages 19-20 & note 13, supra. The decision below is therefore distinguishable from the decisions in both of these other cases and does not present the question whether a decision based solely upon resource considerations falls within the discretionary function exception.

/16/ Petitioners relied upon this Court's decision in Indian Towing Co. in support of their claim that the government was subject to a duty to use reasonable care, but that decision plainly is distinguishable from the present case. The question in Indian Towing was whether the government was liable for the negligent operation of a lighthouse. The Court concluded that "once (the government) exercised its discretion to operate a light * * * and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order" (350 U.S. at 69). The weather forecast at issue here cannot be equated with the factual representation supplied by the lighthouse in Indian Towing; recipients of the forecast could not reasonably rely upon its predictions about future events. Since the government conduct could not "engender( ) reliance," the government did not operate under a legal standard of due care in issuing the forecast.

/17/ In Chanon v. United States, 350 F.Supp. 1039 (S.D. Tex. 1972), aff'd, 480 F.2d 1227 (5th Cir. 1973), the district court concluded that the National Weather Service "was under the duty to use due care in gathering weather information," but held that the government had not acted negligently. In Delroy v. United States, No. 79-546 (S.D. Ind. Mar. 12, 1982), the United States was found liable for failure to predict a storm, but the case was settled on appeal.