# Indian Towing Company v. United States/Dissent Reed

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Reed
United States Supreme Court
350 U.S. 61
Indian Towing Company v. United States
Argued: Oct. 13, 1955. --- Decided: Nov 21, 1955
Mr. Justice REED, with whom Mr. Justice BURTON, Mr. Justice CLARK, and Mr. Justice MINTON join, dissenting.
The Court reverses the judgment on the ground that the United States is liable under the Federal Tort Claims Act for damages caused by the negligence of the Coast Guard in maintaining a lighthouse light near the mouth of the Mississippi. The alleged negligence was the failure of the Coast Guard personnel to check the electrical system which operated the light, the failure to make a proper examination of the connections and other apparatus connected with the light, and the failure to repair the light or give notice to vessels that the light was not functioning. Although navigators were warned this was an 'unwatched light,' it is assumed at this point in the litigation that this negligence occurred and that it was the proximate cause of the loss. Government operation of the lighthouse was authorized by 14 U.S.C. § 81, 14 U.S.C.A. § 81. It is forbidden to others except by authority of the Coast Guard.
The question of the liability of the United States for this negligence depends on the scope and meaning of the Federal Tort Claims Act. The history of the adoption of that Act has heretofore been thoroughly explained. Before its enactment, the immunity of the Government from such tort actions was absolute. The Act authorized suits against the Government under certain conditions. The Government was made liable for injury to persons or property
'caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. § 1346(b), 28 U.S.C.A. § 1346(b).
There was a further condition, 28 U.S.C. § 2674, 28 U.S.C.A. § 2674, that the United States should be liable 'in the same manner and to the same extent as a private individual under like circumstances'.
In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, we passed upon the applicability of the Act to claims by members of the armed services injured through the negligence of other military personnel. We said:
'One obvious shortcoming in these claims is that plaintiffs can point to no liability of a 'private individual' even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Nor is there any liability 'under like circumstances,' for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command. * * * In the usual civilian doctor and patient relationship, there is of course a liability for malpractice. And a landlord would undoubtedly be held liable if an injury occurred to a tenant as the result of a negligently maintained heating plant. But the liability assumed by the Government here is that created by 'all the circumstances,' not that which a few of the circumstances might create. We find no parallel liability before, and we think no new one has been created by, this Act. Its effect is to waive immunity from recognized causes of action and was not to visit the Government with novel and unprecedented liabilities.' Id., 340 U.S. at page 141, 142, 71 S.Ct. at page 157.
Thus, in Feres the Court was of the view that the Act does not create new causes of action theretofore beyond the applicable law of torts. So, in determining whether an action for negligence in maintaining public lights is permissible, we must consider whether similar actions were allowed by the law of the place where the negligence occurred, prior to the Tort Claims Act, against public bodies otherwise subject to suit.
Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 971, 97 L.Ed. 1427, followed the reasoning of Feres. That case involved, among other issues, the liability of the United States for negligence of the Coast Guard in fighting fire. The Coast Guard had been found negligent in its fire-fighting duties by the trial court. These duties were outside the discretionary function exception of § 2680(a) of the Act. Resting our decision on the Act itself, we said the Tort Claims Act
'did not change the normal rule that an alleged failure or carelessness of public firemen does not create private actionable rights. Our analysis of the question is determined by what was said in the Feres case. See 28 U.S.C. §§ 1346 and 2674, 28 U.S.C.A. §§ 1346, 2674. The Act, as was there stated, limited United States liability to 'the same manner and to the same extent as a private individual under like circumstances'. 28 U.S.C. § 2674, 28 U.S.C.A. § 2674. Here, as there, there is no analogous liability; in fact, if anything is doctrinally sanctified in the law of torts it is the immunity of communities and other public bodies for injuries due to fighting fire.' Id., 346 U.S. at pages 43-44, 73 S.Ct. at page 972.
These two interpretive decisions have not caused Congress to amend the Federal Tort Claims Act. As a matter of fact, the catastrophe that gave rise to the Dalehite case was subsequently presented to Congress for legislative relief by way of compensation for the losses which resulted, as found by the trial court, partly from the negligence of the Coast Guard. Throughout the reports, discussion and enactment of the relief act, there was no effort to modify the Tort Claims Act so as to change the law, in any respect, as interpreted by this Court in Feres and Dalehite. Although its discussion was restricted solely to the discretionary function exception to the Act, Congress must have accepted the rulings relating to the issues here involved as in accord with its understanding of the Tort Claims Act. One cannot say that when a statute is interpreted by this Court we must follow that interpretation in subsequent cases unless Congress has amended the statute. On this our cases conflict. However, we should continue to hold, as a matter of stare decisis and as the normal rule, that inaction of Congress, after a well-known and important decision of common knowledge, is 'an aid in statutory construction * * * useful at times in resolving statutory ambiguities'. Helvering v. Reynolds, 313 U.S. 428, 432, 61 S.Ct. 971, 973, 85 L.Ed. 1438. The nonaction of Congress should decide this controversy in the light of the previous rulings. The reasons which led to the conclusions against creating new and novel liabilities in the Feres and Dalehite cases retain their persuasiveness.
This enactment, like any other, should be construed so as to accomplish its purpose, but not with extravagant generosity so as to make the Government liable in instances where no liability was intended by Congress. It is certainly not necessary that every word in a statute receive the broadest possible interpretation. If Congress intended to create liability for all incidents not theretofore actionable against suable public agencies, that intention should be made plain. The courts are not the legislative branch of the Government.
The Act made the Government liable in instances where it would be suable 'if a private person'. The meaning of 'private person' is not discussed in the legislative history. In Feres we talked of private liability and came to a conclusion which is contrary to that reached by the Court today. See 76 S.Ct. 128, supra. We held that because surgeons in private practice or private landlords were liable for negligence did not mean the United States was. Liability of governments for the failure of lighthouse warning lights is as unknown to tort law as, for example, liability for negligence in fire fighting excluded by the Dalehite ruling. Lighthouse keeping is as uniquely a governmental function as fire fighting. There is at least some uncertainty and ambiguity as to what Congress meant by making the United States liable in circumstances where it would be liable 'if a private person'. That uncertainty should not lead us to accept liability for the United States in this case. In dealing with this enlarged concept of federal liability for torts, wisdom should dictate a cautious approach along the lines of Feres and Dalehite.
The Act says that the United States shall be liable in accordance with the law of the place where the act or omission occurred. § 1346(b). This alleged tort occurred in Louisiana. Under the Louisiana law a municipal corporation is not responsible for injury sustained as a result of negligence on the part of the employees of a city in the maintenance of traffic lights. Street traffic lights are a close analogy to navigation lights. We can see no reason to doubt that under Louisiana law the maintenance of navigation lights, if permissible, by municipalities would likewise be free of liability. The Court warns us against the morass of decisions that involve municipal tort liability. It calls that law a 'quagmire' and avoids it by a complete surrender of sovereign immunity without regard to the law of municipal liability of the respective States.
The over-all impression from the majority opinion is that it makes the Government liable under the Act for negligence in the conduct of 'any governmental activity on the 'operational level." It seems broad enough to cover all so-called 'uniquely governmental activities.' Logically it may cover negligence in fire fighting, although the Dalehite holding on that point is not overruled. Perhaps liability arises even for injuries from negligence in pursuing criminals.
The Court's literal interpretation of this Act brings about an application of the Federal Tort Claims Act analogous to that condemned by Congress in the Portal-to-Portal Act of 1947, 29 U.S.C.A. § 251 et seq. after Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, see 61 Stat. 84, § 1(a), and in the Fair Labor Standards Amendments of 1949, 63 Stat. 910, 29 U.S.C.A. § 201 et seq., after Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502, see 2 U.S.Code Cong.Serv.1949, p. 1617. Compare United States v. American Trucking Assns., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345. The judgment should be affirmed.

## Notes

* ↑ United States Coast Guard, Light List, Atlantic and Gulf Coasts of the United States, corrected to January 1, 1951 (C.G. 158), pp. 5, 498.
* ↑ 14 U.S.C. § 83, 14 U.S.C.A. § 83:
* ↑ Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152; Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427.
* ↑ There were further limitations and certain specific exceptions not pertinent here.
* ↑ E.g., the negligence of an Army surgeon during an operation in sewing up a towel in the abdomen of a soldier; and negligence in quartering a soldier in barracks known to be unsafe because of a defective heating plant.
* ↑ 69 Stat. 707; H.R.Rep. No. 2024, 83d Cong., 2d Sess.; S.Rep. No. 2363, 83d Cong., 2d Sess.; H.R.Rep. No. 1305, 84th Cong., 1st Sess.; H.R.Rep. No. 1623, 84th Cong., 1st Sess.; S.Rep. No. 684, 84th Cong., 1st Sess.
* ↑ Compare United States v. Elgin, J. & E.R. Co., 298 U.S. 492, 500, 56 S.Ct. 841, 843, 80 L.Ed. 1300; United States v. South Buffalo R. Co., 333 U.S. 771, 775, 68 S.Ct. 868, 870, 92 L.Ed. 1077; Toolson v. New York Yankees, 346 U.S. 356, 74 S.Ct. 78, 98 L.Ed. 64, with Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604; Commissioner of Internal Revenue v. Church's Estate, 335 U.S. 632, 69 S.Ct. 322, 337, 93 L.Ed. 288.
* ↑ Edwards v. City of Shreveport, La.App., 66 So.2d 373; cf. Howard v. City of New Orleans, 159 La. 443, 105 So. 443.
* ↑ But see footnote 4 of the majority opinion, in which Workman v. New York City is cited.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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