United States Court of Appeals

For the First Circuit

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, Admiralty 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, 2003
1 The M/T Limar measured over 545 feet in length and had a beam of

approximately ninety feet. The M/T Limar’s draft was thirty-three

feet, nine inches.

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TORRUELLA, Circuit Judge. Limar Shipping Ltd. ("Limar")

and OMI 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 breached warranties 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 resulted 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 ruling for 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,

approached Boston, 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.

Accordingly, the M/T Limar took aboard a harbor pilot, Lawrence
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Cannon, who undertook navigation 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 allocates

funds to maintain federal shipping channels at certain authorized

depths 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, and was 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

authorized depths, and to discover any unexpected debris or

shoaling. 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 publications. Relevant to this matter,

the last periodic survey of the disputed area of the inbound

channel was completed in 1990. The results of the 1990 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

appeared in a book entitled The Port of Boston, Massachusetts, Port

Series No. 3, issued in 1994. In each of these sources, the 1990
2 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."

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survey reported 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,

and did not bring a nautical chart with him. Although he had never

been aboard the M/T Limar, he familiarized himself with the ship,

and asked 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

observed the 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 copy of 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 the Boston Harbor

floor near Red Nunn Buoy No. 8, at approximately 42 20.494' N and

71 00.505' W. According to the nautical chart produced 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. 
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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 Limar. The 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

key facts. 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
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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

NOAA's standards for hydrographic surveys. Specifically, the

plaintiffs argue that if the nautical chart had been based on a

survey conducted in 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

by the Army Corps guidelines. According to the plaintiffs, the

Army Corps should have followed the NOAA requirements in conducting

its initial survey because it knew that NOAA would rely on the

survey in 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

Army Corps 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 States has

completely waived sovereign immunity in the SAA, and consequently

that no discretionary function exception exists in this context.

In the event we find that there is such an exception, plaintiffs
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argue that the exception should not apply to the decisions made by

the Army Corps and NOAA, and that the United 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

duty of care to create the chart accurately. Plaintiffs argue that

since mariners regularly rely on such charts for navigation,

misrepresentation as to the depth of the harbor is grounds for

liability.

In response, defendants argue that the actions by both

the Army Corps and NOAA are discretionary 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 threshold issue 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 States, as 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).
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Absent 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 sovereign immunity from suit for

maritime torts committed by its agents. See 46 U.S.C. Appx. § 742;

Gercey v. 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 against 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

discretionary function exception serves to prevent "judicial

'second-guessing' of legislative and administrative decisions

grounded in social, economic, and political policy." United States

v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467

U.S. 797, 814 (1984). This Court has held that a similar
3 In Gercey, this court held that

the [SAA] does not contain an express exemption for harm

caused by the exercise of "discretionary functions", a

category which includes, and probably should be limited

to, basic "policy judgments as to the public interest."

Although the [SAA] contains no express exception, we

think that sound principles demand that the act be

construed as 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 unlikely event 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

concluded that the "SAA’s waiver of immunity is subject to the

discretionary function exception." Mid-South Holding Co., Inc. v.

United States, 225 F.3d 1201, 1204 (11th Cir. 2000) (citing Tew v.

United States, 86 F.3d 1003, 1005 (10th Cir. 1996) (providing case

law from ten different circuits, including this one, supporting the

existence of 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.

Tiffany v. United States, 931 F.2d 271, 277 (4th Cir. 1991).

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discretionary 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.

Congress did not intend, by passing the SAA, to create a system

wherein all administrative decisions concerning maritime matters

are second-guessed and subject to judicial review. Gercey, 540

F.2d at 539. Absence of an "express Congressional directive to the

contrary" will not be read as a green light for federal courts to
4 In Berkovitz, the Supreme Court was specifically addressing the

discretionary function exception to the FTCA. 486 U.S. at 533. We

hold that the Berkovitz test applies in cases involving the implied

discretionary function exception to the SAA. Other courts have

applied the Berkovitz test when analyzing 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 is subject to the

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assume power to review "all administrative and legislative

decisions concerning the public interest in maritime matters." Id.

The district 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 discretionary function

exception to the SAA, we turn to the argument that the district

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

challenged in 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 function exception bars a

suit against the United States.4 486 U.S. at 535-37. First, a
analysis of the Berkovitz test.

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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 considerations of

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, regulation, 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 mandatory 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

mandatory internal procedures requiring its survey of the Boston

Harbor to be conducted in accordance with NOAA guidelines. Because

they contend 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
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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' Hydrographic Surveying: Engineer

Manual (1994) ("Army Corps Manual") applies to hydrographic surveys

planned and 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

quality control criteria for hydrographic surveys"). The Army

Corps Manual states:

This manual is intended to cover only those

engineering and construction survey activities

which support typical river, harbor, harbor

approach channel, or inland waterway projects.

. . . [it] does 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].

Army Corps Manual at 1-4(b). Here, the parties agreed and the

district court found that the Army Corps conducted the Boston

Harbor survey as a "condition survey," which is a periodic survey

carried out "to determine the present condition of navigation

channels [and] underwater features, but is 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 follow the NOAA
5 Plaintiffs argue that the purpose of the 1990 survey is a

disputed issue of material fact. As we stated above, 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:

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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

survey at 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

survey according 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 exception was designed to protect.

Berkovitz, 486 U.S. at 537.

Where "a regulation allows the employee discretion, the

very existence of the regulation creates a strong presumption that

a discretionary act authorized by the regulation involves

consideration of the same policies which led to the promulgation of

the regulations."6 United States v. Gaubert, 499 U.S. 315, 347
Not 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 rely on internal guidelines

rather than on published regulations. . . . When

established governmental policy, as expressed or implied

by statute, regulation, or agency guidelines, allows a

Government agent to exercise discretion, it must be

presumed that 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 accurate had it been based on a survey conducted under the

more stringent NOAA standards. It is unclear to us that this

argument was presented by appellants on appeal, but we will assume

arguendo that it remains a viable argument.

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(1991). Plaintiff bears the burden of rebutting this presumption

and demonstrating that the conduct at issue is not policy-based.

See Wood v. 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

policy-based. See, e.g., Varig Airlines, 467 U.S. at 820

(recognizing the efficient allocation of agency resources 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 made the

decision to create a chart, it had a duty to produce it

accurately.7 In Indian Towing Co. v. United States, 350 U.S. 61
8 Appellants have not challenged NOAA's actual use of the Corps'

data as negligent, but rather have chosen to challenge NOAA's

decision to use the Corps' data to create the nautical chart.

Indian Towing would only apply in the former case, where once NOAA

exercised its discretion to use the Corps' data it had to do so in

a non-negligent manner.

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(1955), the Supreme Court held the United States liable for

negligently maintaining 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 can be distinguished from the

instant case because there the government conceded that the

discretionary function exception did not apply. Id. at 64. In

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,
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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

NOAA or 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,

and thus 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 surveys in

creation of a chart, it was within the cartographer’s discretion to

use the survey made by the Army Corps. See Baird v. 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 follow mandatory

procedures regarding hydrographic surveys. Glacier Bay involved

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

allowed a negligence suit against the government to proceed because

NOAA did 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").
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The Glacier Bay case dealt with 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 procedures in conducting an independent hydrographic

survey.

The second requirement of the Berkovitz test, that the

judgment is the type the discretionary 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 choices. 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.

United States, 610 F.2d 7, 12 (1st Cir. 1979) (indicating the

allocation of resources among competing priorities is a policy

function). If this Court were to agree with plaintiffs, we would

be second-guessing NOAA's policy decision and would be going

against the clear intent of the implied discretionary function

exception, which is "to prevent judicial second-guessing of
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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

protected by the discretionary function exception, we find that no

liability attaches 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 general principle gleaned from Indian Towing is that "the

government must not mislead, and must not induce reliance upon a

belief that it is providing something which, in fact, it is not

providing." United States v. Sandra & Dennis Fishing Corp., 372

F.2d 189, 195 (1st Cir. 1967).

Here, the government cannot be held liable under the

principles established by Indian Towing, because (1) it is

unreasonable for mariners to rely solely on the chart; and (2) in
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the alternative, the government did not create the danger in the

Boston Harbor. 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. United States, 747 F.2d 69, 78 (2d

Cir. 1984) (Tenney, J., dissenting) (arguing that Indian Towing

applies only where reliance is reasonable). Given the constant

possibility that silting or other events may alter the depth of the

harbor at any given point, reliance on a year-old chart was

unreasonable. Further, 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 such reliance

reasonable, 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

experienced harbor pilot, the prudent mariner does not rely on

charts alone when navigating a body of water. See, e.g., Sheridan

Transp. Co. v. United States, 897 F.2d 795, 798 (5th Cir. 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

Int'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 be of interest to or fall into the hands of an

indeterminate number of users. These charts are published

by the Government with the certain knowledge that they

(i) will be disseminated 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 found such ships to be unseaworthy.

Others have found mariners who follow such practice

guilty of "glaring" or "gross" fault.

What the maritime law exacts of shipowner through

decisions of admiralty courts may hardly be ignored by

the Executive Agency responsible for such charts. The

Government must therefore bear the burden of using due

care in the preparation and dissemination 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 Fifth Circuit

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

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radar, Loran, charts, Notices 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

reasonably rely 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.9
time in which a prudent shipowner-navigator would have reasonably

received the 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.

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Where the government does not create a danger but rather

only fails to "render adequate performance," liability does not

attach. Brown v. United States, 790 F.2d 199 (1st Cir. 1986)

(distinguishing Indian Towing, where "the government created a

danger by representing that an operating lighthouse was present"

from cases 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.