# Un ited Sta tes C our t of A pp eals For the First C ircuit

No. 02-1454 LIMAR SHIPPING LTD. AND OMI CORP., Plaintiffs, Appellants,

v. UNITED STATES OF AMERICA, Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Morris E. Lasker, U.S. District Judge ]

Before Torruella, Circuit Judge , Stahl, Senior Circuit Judge , and Howard, Circuit Judge .

Thomas E. Clinton , with whom Robert E. Collins and Clinton & Muzyka, P.C. , were on brief, for appellants. Michelle T. Delemarre , A d miralty Trial Attorney, with whom Robert D. McCallum, Jr. , Assistant Attorney General, and Michael J. Sullivan , United States Attorney, were on brief, for appellee.

March 25, 20031 The M/T Limar measured over 545 feet in length and had a beam of

approximately ninetyfeet. The M/T Limar ’s draft was thirty-three feet, nine inches. -2-

TORRUELLA, Circuit Judge . Limar Shipping Ltd. ("Limar") andOMI Corporation ("OMI"), plaintiffs-appellants, appeal a grant of summary judgment in favor of the defendant-appellee the United States, in a case alleging, inter alia, that the United States was negligent and/or breachedwarranties in the surveying of the Boston Harbor and the dissemination of nautical charts that failed to accurately depict the depth of the harbor. Plaintiffs claim that the erroneous chart res ulted in the grounding of and subsequent damage to their vessel, the M/T Limar . Plaintiffs raise two main issues on appeal, namely, that the district court erred in: (1) finding that there is an implied discretionary function exemption in the Suits in Admiralty Act; and(2) applying the discretionary function exemption as it did to the facts of this case. After careful review, we affirm the district court’s rul ing fo r the reasons stated below. I. Facts

On the morning of March 11, 1996, the steel hulled tanker vessel M/T Limar , owned by Limar and operated by OMI, approachedBoston, Massachusetts. Under Massachusetts law, foreign vessels the size of the M/T Limar must employ a harbor pilot when entering Boston Harbor. 1 See Mass. Gen. Laws ch. 103, §§ 21, 28. Accord ing ly, the M/T Limar took aboard a harbor pilot, Lawrence-3-

Cannon, who undertoo k n avigation of the ship through the Boston Harbor shipping channel.

The main shipping route in the Boston Harbor includes side-by-side inbound and outbound channels, which are maintained by the Army Corps of Engineers ("Army Corps"). Congress all oca tes funds to maintain federal shipping channels at certain authorized de pths and widths. In 1996, the Army Corps was authorized to dredge the Boston Harbor inbound channel to a depth of thirty-five feet below Mean Low Water, andwas also authorized to maintain the outbound channel at a depth of not more than forty feet. Both of these channels could be maintained up to 600 feet wide.

The Army Corps conducts periodic surveys of the shipping channels to determine their actual depths, as opposed to the authorizeddepths, and to discover any unexpected debris or shoali ng. The results of these surveys are made known to the public through Results of Survey Reports and the Coast Guard's Local Notice to Mariners publica tions. Relevant to this matter, the last periodic survey of the disputed area of the inbound channel was completed in 1990. The results of t he 1 990 Boston Harbor survey appeared in a Results of Survey Report dated July 23, 1990, and they were published in the First Coast Guard District’s Local Notice to Mariners , Number 31, on August 1, 1990. They also appearedin a book entitled The Port of Boston, Massachusetts, Port Series No. 3 , issued in 1994. In each of these sources, the 19902 The nautical chart contains a warning that states "[t]he prudent

mariner will not rely solely on any single aid to navigation." In addition, the chart includes several cautions, including one that the "[t]emporary changes or defects in aids to navigation are not indicated on this chart. See Notice to Mariners." -4- surveyreported the controlling depth of the channel, which is the shallowest point at any place as compared to Mean Low Water.

Cannon, a harbor pilot with twenty-four years of experience at the time of the grounding, knew these survey results, anddid not bring a nautical chart with him. Although he had never been aboard the M/T Limar , he familiarized himself with the ship, andasked the M/T Limar ’s crew for the draft of the ship before directing the ship through Boston Harbor.

While Cannon piloted the vessel, the M/T Limar ’s crew observedthe movement of the ship. Third Mate Rodolfo Arcilla took periodic position fixes of the vessel’s location and plotted them

on the M/T Limar ’s copyof Nautical Chart 13272, 43d Edition, dated June 28, 1995. The National Oceanic and Atmospheric Administration ("NOAA") created this chart using information from several sources, including the 1990 Army Corps survey mentioned above. 2

At 8:50 a.m., the M/T Limar scraped th e B oston Harbor floor near Red Nunn Buoy No. 8, at approximately 42 20.494' N and 71 00.505' W. According to the nautical chart produce d by NOAA, the water depths nearest to the position of the groundings are thirty -five and thirty-six feet, which allegedly should have accommodated the M/T Limar 's thirty-three feet, nine inch draft.-5-

The vessel grounded on the starboard (right) side forebody, but was still able to reach its berth. However, the damage to the hull and the ensuing steps taken to prevent oil pollution are alleged to have cost Limar and OMI in excess of $800,000.

Limar and OMI sued the government under the Suits in Admiralty Act ("SAA"), 46 U.S.C. Appx. §§ 741-52 (1976), alleging that the misrepresentation of the water depth on the chart caused the damage to the M/T Lima r . T he district court granted summary judgment in favor of the United States, finding that the discretionary function exception applied and that the United States

was entitled to dismissal of the complaint on grounds of sovereign immunity. II. Standard of Review

This Court reviews the grant of a summary judgment motion de novo, considering all facts in the light most favorable to the non-moving party, in this case the plaintiffs. Gu v. Boston Police Dept., et al. , 312 F.3d 6, 10 (1st Cir. 2002). III. Discussion This case involves allegations of negligence on the part of the United States in the production and dissemination of a nautical chart. In order to avoid confusion, we highlight several keyfacts. The Army Corps conducted a survey of the Boston Harbor, which was later used by NOAA to create a nautical chart of the harbor. The plaintiffs argue that the chart failed to accurately-6-

depict the depth of the harbor, and the M/T Limar 's grounding was

a result of this inaccuracy. Instead of following what the plaintiffs allege are mandatory standards, the Army Corps followed its own guidelines in conducting the survey. The plaintiffs contend that the chart's inaccuracy could have been prevented if NOAA had based the chart on a survey that was conducted in accordance with NO AA 's standards for hydrographic surveys. Specifically, the plaint iffs argue that if the nautical chart had been based on a surveyconductedin compliance with NOAA guidelines, it would have been more accurate because those guidelines require measurements on tighter sounding intervals and line spacing than those called for bythe Army Corps guidelines. According to the plaintiffs, the ArmyCorps should have followed the NOAA requirements in conducting its initial survey because it kn ew t hat NOAA would rely on the surveyin creating nautical charts. NOAA did in fact use the Army Corps survey, in conjunction with other sources, to create the chart. Thus, plaintiffs allege two grounds of liability: (1) the ArmyCorps decision to follow its own guidelines rather than the NOAA guidelines in conducting the survey; and (2) NOAA's decision to create a chart based on that survey.

Plaintiffs urge us to hold that the United State s h as completely waived sovereign immunity in the SAA, and consequently that no discretionary function excep tion exists in this context. In the event we find that there is such an exception, plai ntiff s-7-

argue that the exception shouldnot apply to the decisions made by the Army Corps and NOAA, and t hat the U nited States should be subject to suit, because the decisions were non-discretionary. The final argument offered by plaintiffs is that even if NOAA's decision to rely on the Army Corps survey was a discretionary decision, once that decision was made, the government entity had a dutyof care to create the chart accurately. Plaintiffs argue that since mariners reg ular ly rely on such charts for navigation, misrepresentation as to the depth of the harbor is grounds for liability. In response, defen dant s argue that the actions by both the Army Corps and NOAA are discret ionary decisions that fall within the implied discretionary function exception to the SAA. Thus, defendants argue the United States is protected from suit by sovereign immunity. A. Existence of the Implied Discretionary Function Exception

We begin with the threshol d is sue of whether a discretionary function exception should be implied in the context of the SAA. Unless such an exception can be implied, waiver of sovereign immunity by the United States would allow the plaintiffs' suit to proceed.

The United State s, a s sovereign, is immune from suit unless it waives its sovereign immunity and consents to be sued. See , e.g. , United States v. Thompson , 98 U.S. 486, 489 (1878).-8-

Abse nt express waiver of sovereign immunity, federal courts lack subject matter jurisdiction over suits against the United States. United States v. Sherwood , 312 U.S. 584, 586 (1941). In the SAA, the United States waives its so vereig n immunity from suit for maritime torts committed by its agents. See 46 U.S.C. Appx. § 742; Gerceyv. United States , 540 F.2d 536, 539 (1st Cir. 1976).

The SAA contains no express exceptions to the waiver of sovereign immunity. In contrast, the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 1346(b), which waives sovereign immunity for tort claims agai nst the United States, contains an express exception to shield the "discretion of the executive or administrator to act according to one 's judgment of the best course." Dalehite v. United States , 346 U.S. 15, 34 (1953). This discretionaryfunction exception serves to prevent "judicial 'second-guessing' of legislative and administrative decisions groundedin social, economic, and political policy." UnitedStates

v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 814 (1 984). This Court has held that a similar3 In Gercey , this court held that

the [SAA] does not contain an express exemption for harm causedby the exercise of "discretionary function s", a category which includes, and probably should be limited to, basic "policy judgments as to the public interest." Al though the [SAA] contains no express exception , w e think that sound pr inci ples demand that the act be construedas subject to such discretionary function exception . Were there no such immunity for basic policy making decisions, all administrative and legislative decisions concerning the public interest in maritime matters would be subject to independent judicial review in the not unlike ly e vent that the implementation of those policy judgments were to cause private injuries. Id. at 539 (emphasis added) (citations and footnote omitted). The other circuit courts that have considered this issue have also concludedthat the "SAA’s waiver of immunity is subject to the discretionary function exception." Mid-South Holding Co., Inc. v. UnitedStates , 225 F.3d 1201, 1204 (11th Cir. 2000) (citing Tew v. UnitedStates , 86 F.3d 1003, 1005 (10th Cir. 1996) (providing case law from ten different circuits, including this one, supporting the existence o f an implied discretionary function in the SAA)). Plaintiffs point to Lane v. United States , 529 F.2d 175 (4th Cir. 1975), in support of their argument that the discretionary function exception does not apply in the SAA context. The Fourth Circuit, however, now agrees that the exception should be read into the SAA. Tiffanyv. United States , 931 F.2d 271, 277 (4th Cir. 1991). -9- dis cretionary function exception is to be implied into the SAA. 3 See Gercey , 540 F.2d at 539.

We decline plaintiffs' invitation to reconsider our decision in Gercey , and reaffirm the principles set forth therein. Congr ess did not intend, by passing the SAA, to create a syste m wherein all administrative decisions concerning maritime matters

are second-guessed and subject to judicial r evi ew. Gercey , 540 F.2dat 539. Absence of an "express Congressional directive to the contrary" will not be read as a green light for federal courts to4 In Berkovitz , the Supreme Court was specifically addressing the

discretionary function exception to the FTCA. 486 U.S. at 533. We holdthat the Berkovitz test applies in cases involving the implied discretion ary function exception to the SAA. Other courts have appliedthe Berkovitz test when analyzin g the issue of the applicability of the discretionary function exception in a suit brought under the SAA. See , e.g. , Theriot v. U.S. , 245 F.3d 388, 397 (5th Cir. 1998); Cassens v. St. Louis River Cruise Lines, Inc. , 44 F.3d 508, 511-14 (7th Cir. 1995). Furthermore, there is evidence on the record that both parties agreed that if the discretionary function exception applies, it i s subject to the -10- assume power to review "all administrative and legislative decisions concerning the public interest in maritime matters." Id. The dis tri ct court did not err in applying well-established law implying a discretionary function exception to the SAA. B. Applicability of the Implied Discretionary Function Exception

Given that there is an implied d i scretionary function except ion to the SAA, we turn to the argument that the dis tric t court misapplied the exception to the facts of the case at bar. As in the FTCA context, the implied discretionary function exception to the SAA "insulates the Government from liability if the action challengedin the case involves the permissible exercise of policy judgment." Berkovitz v. United States , 486 U.S. 531, 537 (1988). Plaintiffs suggest that the actions of the Army Corps and NOAA fail to meet the discretionary function exception's applicability test and that the United States is therefore subject to suit.

In Berkovitz , the Supreme Court set forth a two-part test to determine whether the discretionary functio n ex ception bars a suit against the United States. 4 486 U.S. at 535-37. First, aanalysis of the Berkovitz test.-11-

court must determine if the challenged conduct involves an element of judgment, meaning that "the action is a matter of choice for the acting employee." Id. at 536. Second, "a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield," meaning it involved "governmental actions and decisions based on considerati ons o f public policy." Id. 1. Applicability of the Discretionary Function Exception to the Army Corps' Survey

It is well established that "the discretionary function exception will not apply when a federal statute, re gul ation, or policy specifically prescribes a course of action for an employee to follow." See Berkovitz , 486 U.S. at 536. However, if there is

no mandat ory regulation that requires a particular course of action, then the discretionary function exception can apply. Id. Here, plaintiffs argue that the Army Corps failed to follow

man dato ryinternal procedures requiring its survey of the Boston Harbor to be conducted in accordance with NOAA guidelines. Because theycontend that compliance with the NOAA guidelines was mandatory, plaintiffs claim that the discretionary function exception cannot protect the United States from suit. We disagree.

No mandatory internal procedures or directives required the Army Corps to adhere to the NOAA guidelines in conducting its-12-

survey of the Boston Harbor, thus the "element of judgment" prong of the Berkovitz test is met. The Army Corps generally follows its

own manual when it performs oceanic surveys, and there is no dispute that the Army Corps' Hy dr ographic Surveying: Engineer Manual (1994) (" Army Corps Manual ") applies to hydrographic surveys plannedand performed by the Army Corps and sets forth the applicable procedures. Army Corps Manual at 1-4 (stating that "manual establishes standard procedures, minimum accuracy requirements, instrumentation and equipment requirements, and qualitycontrol criteria for hydrographic su rvey s"). The Army Corps Manual states:

This manual is intende d to cover only those engineering and construction survey activities which support typical river, harbor, harbor approach channel, or inland waterway projects.

. . . [ it] d oes not cover classical hydrographic surveying functions which are more traditionally associated with the preparation of nautical charts. These procedures are detailed in the [NOAA Hydrographic Manual ]. ArmyCorps Manual at 1-4(b). Here, t he p arties agreed and the district court found th at the Army Corps conducted the Boston Harbor survey as a "condition survey," which is a periodic survey carriedout "to determine the present condition of navigation channels [and] underwater features, but i s not a survey in conjunction with the preparation of a nautical chart." Army Corps Manual at 2-10. There is no mandatory language in the Army Corps Manual indicating that the Army Corps must fo llow t he NOAA5 Plaintiffs argue that the purpose of the 1990 survey is a

disputedissue of material fact. As we statedabove, however, both parties conceded the survey was indeed a condition survey and thus not a survey conducted for the purpose of creating a nautical chart.

6 The fact that we are concerned here with internal procedures and guidelines, as embodied in the Army Corps Manual , rather than with federal statutes or regulations does not change our analysis. The Gaubert presumption applies to internal procedures:

-13- guidelines when carrying out a condition survey, even if it is aware that such a survey may be used by other agencies to prepare nautical charts -- what matters is the purpose of the survey at the time it is conducted by the Army Corps. 5 Since the purpose of the surveyat the time it was conducted was to determine the condition of the harbor rather than to chart its depth, the Army Corps was under no obligation to comply with NOAA guidelines.

Having found that the choice to conduct the condition surveyaccording to the Army Corps guidelines constituted a discretionary choice, we now turn to the second part of the Berkovitz test and consider whether that decision is of the type the discretionary function exceptio n was designed to protect. Berkovitz , 486 U.S. at 537.

Where "a regulation allows the employee discretion, the veryexistence of the regulation creates a strong presumption that

a discretionary act authorized by the regula tion involves consideration of the same policies which led to the promulgation of the regu lations." 6 United States v. Gaubert , 499 U.S. 315, 347Not all agencies issue comprehensive regulations,

however. Some establish policy on a case-by-case basis, whether through adjudicatory proceedings or through administration of agency programs. Others promulgate regulations on some topics, but not on others. In addition, an agency may re ly on internal guidelines ra ther than on published regulations. . . . When establishedgovernmental policy, as expressed or implied bystatute, regulation, or agency guidelin es, allows a Government agent to exercise discretion, it mu st be presumedthat the agent's acts are grounded in policy when exercising that discretion. Gaubert , 499 U.S. at 324.

7 The argument depends on the assumption that the chart would have been acc urate had it been based on a survey conducted under th e m ore stringent NOAA standards. It is unclear to us that thi s argument was presented by appellants on appeal, but we will assume arguendo that it remains a viable argument. -14- (1991). Plaintiff bears the burden of rebutting this presumption anddemonstrating that the c onduct at issue is not policy-based. See Woodv. United States , 290 F.3d 29, 37 (1st Cir. 2002). Here, the plaintiffs fail to meet this burden. Indeed the Corps' decision to follow its own less stringent guidelines is most likely

a choice aimed to maximize efficient use of resources, and is thus po licy-based. See , e.g. , Varig Airlines , 467 U.S. at 82 0 (recognizing the efficient allocation of agency re sour ces as a policy choice). 2. Applicability of the Discretionary Function Exception to NOAA's use of the Army Corps Survey in Creating the Chart

This leaves only the argument that once NOAA m ade the decision to cre ate a chart, it had a duty to produce it

a ccurate ly. 7 In Indian Towing Co. v. United States , 350 U.S. 618 Appellants have not challenged NOAA's actua l use of the Corps'

data as negligent, bu t rath er have chosen to challenge NOAA's decision to use the Corps' data to create the nautical chart. Indian Towing would onlyapply in the former case, where once NOAA exercisedits discretion to use the Corps' data it had to do so in a non-negligent manner. -15- (1955), the Supreme Court held the United States liable for negligentlymaintaining a lighthouse built by the Coast Guard. Id. at 69. Mariners relied on the lighthouse for navigation and plaintiff's ship was damaged when it ran aground because the light went out. Id. at 62. The Indian Towing Court indicated that once the Coast Guard exercised its discretion to operate the lighthouse, it was under an obligation to do so with reasonable care. Id. at 68. We find that Indian Towing c an be dis tinguished from the instant case because there the government conceded that the disc retionaryfunction exception did not apply. Id. at 64. I n this case, however, the government vigorously argues, and we agree, that the decision by NOAA to use the Corps' data to create the chart was discretionary and was thus the type of decision the discretionary function exception was meant to protect. 8

The "element of judgment" prong of the Berkovitz test is satisfied because NOAA's decision to use the Army Corps survey in fact contains an element of judgment. As stated above, the discretionary function applies unless a "federal statute, regulation or policy specifically prescribes a course of action for

an employee to follow." Berkovitz , 486 U.S. at 537; accord Wood ,-16-

290 F.3d at 36. Nowhere in NOAA’s Hydrographic Manual are employees directed to use as the basis for charts only surveys conducted by NOAAor by other entities following NOAA’s guidelines. In fact, the manual only stipulates that if NOAA itself conducts a survey, it must conform with the manual's specific directives. Here, NOAA did not conduct the 1990 survey of the Boston Harbor which formed the basis for the chart. Since there is no specific regulation, andthus no mandatory language either (1) directing the cartographer as to the surveys that ought to be used when making a chart, or (2) prohibiting use of non-NOAA conforming sur vey s in creation of a chart, it was within the cartographer’s discretion to

use the survey made by the Army Corps. See Bairdv. United States , 653 F.2d 437, 441 (10th Cir. 1981).

Plaintiffs cite In re Glacier Bay , 71 F.3d 1447 (9th Cir. 1995) in support of their argument that the discretionary function does not apply here because NOAA did not fol low mandatory procedures regarding hydrographi c su rveys. Glacier Bayinvolved the grounding of a vessel on a rock that was omitted from the nautical chart. Id. at 1449-50. In that case, the Ninth Circuit alloweda negligence suit against the government to proceed because NOAAdid not comply with its internal guidelines in conducting the survey for the chart. See id. at 1453 (holding that the "general grant of discretion was superseded by mandatory requirements" and thus "the discretionary exception function [sic] does not apply").-17-

The Glacier Bay case dealt wi th surveys conducted by NOAA hydrographers for the purpose of preparing nautical charts. Id. at 1450. Glacier Bay is inapposite, however, because this case deals with NOAA's decision to use an Army Corps condition survey for the preparation of a chart rather than with NOAA's failure to follow its own pr ocedur es in conducting an independent hydrographic survey. The second requirement o f th e Berkovitz test, that the judgment is the type the discre tio nary function was designed to protect, is also satisfied with respect to NOAA's decision. The allocation of resources for the production and dissemination of ocean charts by a budget-constrained entity like NOAA is a policy decision that falls within the ambit of the discretionary function exception. Allocation of resources and budget management involve prioritizing and are quintessentially policy-based c hoic es. See Varig Airlines , 467 U.S. at 820; Weissich v. United States , 4 F.3d 810, 813 (9th Cir. 1993) (finding budget and personnel allocation decisions fall within discretionary function exception); Chute v. UnitedStates , 610 F.2d 7, 12 (1st Cir. 1979) (indicating the allocation of reso urces among competing priorities is a policy function). If this Court were to agree with plaintiffs, we would be second-gues sing NOAA's policy decision and would be going against the clear intent of the impl ied discretionary function excepti on, which is "to prevent judicial second-guessing of-18-

legislative and administrative decisions grounded in social, economic, and political policy." Berkovitz , 486 U.S. at 536-37 (quoting Varig Airlines , 467 U.S. at 814).

Because NOAA’s decision to rely on the Army Corps' survey for the creation of its chart was a policy-based discretionary decision, the discretionary function exception applies. Given the applicability of the discretionary function exception to both the Army Corps and NOAA decisions, we find that the United States has not waived sovereign immunity and cannot be subjected to suit in this matter. See Wood , 290 F.3d at 33-34.

Even if the decision to use the Corps' survey is not protectedby the discretionary function exception, we findthat no liabilityattaches here. Indian Towing does not stand for the proposition that once the United States undertakes a function, such

as production of a nautical chart, "the most effective and best means must always be selected." Chute , 610 F.2d at 17. Instead, the gen eral p rinciple gleaned from Indian Towing is that "the government must not mislead, and must not induce reliance upon a belief that it is providing s omething w hich, in fact, it is not providing." United States v. Sandra & Dennis Fishing Corp. , 372 F.2d 189, 195 (1st Cir. 1967).

He re, the government cannot be held liable under the principles est abli shed by Indian Towing , because (1) it is unreasonable for mariners to rely solely on the chart; and (2) in-19-

the alternative, the government did not create the danger in the Boston Har bor. In order for Indian Towing to apply, the chart would need to induce reasonable reliance on the part of mariners. See Whitney Steamship Co. v. Uni ted States , 747 F.2d 69, 78 (2d Cir. 1984) (Tenney, J., dissenting) (arguing that Indian Towing applies only where rel iance is reasonable). Given the constant possibilitythat silting or other events may alter the depth of the harbor at any given point, reliance on a year-old chart was unreasonable. F urth er, the state law requirement that foreign vessels employ a special harbor pilot in the Boston Harbor suggests that at least the Massachusetts legislature believed that reliance

on the accuracy of a chart is unreasonable. Were suc h reliance

reas onab le, then nautical charts alone would be sufficient for navigation, and presumably a mariner inexperienced with the Boston Harbor would be able to maneuver a vessel safely through its waters by simply using a chart.

Even if there were no statutory requirement for an experiencedharbor pilot, the prudent mariner does not rely on charts alone when navigating a body of water. See , e.g. , Sheridan Tr ansp. Co. v. United States , 897 F.2d 795, 798 (5th C ir. 1990 ) ("aids to navigation do not exist in a vacuum and there are various documents which a mariner must use to determine whether he is justified in relying on an aid"); Tidewater Marine, Inc. v. Sanco In t'l, Inc. , 113 F. Supp. 2d 987, 997 (E.D. La. 2000) ("Buoys,9 The Fifth Circuit takes a different position:

[Nautical charts] are not just casual publications which may b e o f interest to or fall into the hands of an indeterminate number of users. These charts are published bythe Government with the certain knowledge that they (i) will be dissemina t ed through reliable channels to ships and crews and (ii) will be relied on as accurate portrayals of the waters covered. Indeed, this expectation is mandated as a rule of prudent conduct on the part of shipowners. Sailing without a chart or with an obsolete one ranks as more than a mere indiscretion. Many Courts have fou nd s uch ships to be unseaworthy. Others have found mari ne rs who follow such practice guilty of "glaring" or "gross" fault. What th e maritime law exacts of shipowner through decisions of admiralty courts may har dly be ignored by the Executive Agency responsible f or such charts. The Government must therefore bear the burden of using due care in the preparation anddissemination of such charts and notices. De Bardeleben Marine Corp. v. United States , 451 F.2d 140, 148-49 (5th Cir. 1971) (footnotes omitted). While the Fift h Circ uit believes the government has a duty to produce charts with due care, it goes on to say that "the Government's obligation ceases at that -20- radar, Loran, charts , N otices to Mariners, and lookouts are all aids to navigation. None of these alone can be considered absolute indicators of sea conditions."). Here, the chart itself contained prominent warnings that mariners should look to other sources for up-to-date information about the harbor. Because a mariner cannot reasonablyrely solely on a chart, nautical charts do not induce reliance such that the government has a duty to ensure their accuracy, especially where the government specifically directs mariners to other publications through warnings or cautions on the chart itself. 9time in which a prudent shipowner-navigator would have reasonably

receivedthe Notice to Mariner." Id. at 149. We believe an adequate warning, such as a Notice to Mariners, regarding possible inaccuracies in a chart "may absolve the [government] of liability" because "the navigator would no longer be entitled to rely on the [navigational] aid." Whitney Steamship , 747 F.2d, at 78 (Tenney, J., dissenting). Thus, where, as here, mariners are warned to look to recent Notices to Mariners for the latest information regarding a waterway, the due care obligation is met. -21- Where the government does not create a danger but rather onlyfails to "render adequate performance," liability does not attach. Brown v. United States , 790 F.2d 199 (1st Cir. 1986) (dist inguishing Indian Towing , where "the government created a danger by representing t hat an operating lighthouse was present" fromcases where the government does not itself create the danger, as in the case where the government issues weather advisories but does not control the weather). Here, the government did not create the dangers of the Boston Harbor, but merely undertook to produce a chart depicting the depths of the harbor. IV. Conclusion For the above -stated reasons, this Court affirms the judgment of the lower court.

Affirmed .