PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FLORIDA AUTO AUCTION OF ORLANDO,

INCORPORATED, d/b/a Lakeland Auto

Auction, as successor in interest to

the claims of Lakeland Auto

Auction, Incorporated; FLORIDA

AUTO AUCTION OF ORLANDO,

INCORPORATED, d/b/a Imperial Auto

Auction of Orlando, Incorporated,

as successor in interest to the claims

of Florida Auction Services

Corporation, d/b/a Imperial Auto

Auction of Orlando; CENTENNIAL

CASUALTY COMPANY, as subrogee of

claims of ADT Automotive,

Incorporated, formerly doing

No. 95-1271

business as West Palm Beach Auto

Auction, Incorporated; FLORIDA

AUTO AUCTION OF ORLANDO,

INCORPORATED; CENTENNIAL

CASUALTY COMPANY, as subrogee of

the claims of ADT Automotive,

Incorporated, formerly doing

business as Orange County Auto

Auction, Incorporated, now known

as Greater Orlando Auto Auction,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA,

Defendant-Appellant.
FLORIDA AUTO AUCTION OF ORLANDO,

INCORPORATED, d/b/a Lakeland Auto

Auction, as successor in interest to

the claims of Lakeland Auto

Auction, Incorporated; FLORIDA

AUTO AUCTION OF ORLANDO,

INCORPORATED, d/b/a Imperial Auto

Auction of Orlando, Incorporated,

as successor in interest to the claims

of Florida Auction Services

Corporation, d/b/a Imperial Auto

Auction of Orlando; CENTENNIAL

CASUALTY COMPANY, as subrogee of

claims of ADT Automotive,

Incorporated, formerly doing

No. 95-1347

business as West Palm Beach Auto

Auction, Incorporated; FLORIDA

AUTO AUCTION OF ORLANDO,

INCORPORATED; CENTENNIAL

CASUALTY COMPANY, as subrogee of

claims of ADT Automotive,

Incorporated, formerly doing

business as Orange County Auto

Auction, Incorporated, now known

as Greater Orlando Auto Auction,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeals from the United States District Court

for the District of South Carolina, at Charleston.

David C. Norton, District Judge.

(CA-92-2537-2-18, CA-92-2535-2-18, CA-92-2536-2-18,

CA-92-2538-2-18, CA-92-2539-2-18)

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Argued: November 1, 1995

Decided: January 31, 1996

Before MURNAGHAN and MOTZ, Circuit Judges, and YOUNG,

Senior United States District Judge for the District of Maryland,

sitting by designation.

_________________________________________________________________

Reversed in part and affirmed in part by published opinion. Judge

Murnaghan wrote the opinion, in which Judge Motz and Senior Judge

Young joined.

_________________________________________________________________

COUNSEL

ARGUED: Deborah Ruth Kant, Appellate Staff, Civil Division,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Appellant. Donald William Tyler, Sr., TYLER, CASSELL,

JACKSON, PEACE & SILVER, L.L.P., Columbia, South Carolina,

for Appellee. ON BRIEF: Frank W. Hunger, Assistant Attorney General, J. Preston Strom, Jr., United States Attorney, Robert S. Greenspan, Appellate Staff, Civil Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. M.

Alan Peace, TYLER, CASSELL, JACKSON, PEACE & SILVER,

L.L.P., Columbia, South Carolina; Charles R. Stepter, Jr., FISHBACK, DOMINICK, BENNETT, STEPTER, ARDAMAN &

BONUS, Orlando, Florida, for Appellee.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

Appellees, automobile auctioneers, sued Appellant, the Federal

Government, claiming that United States Customs officials committed

the torts of negligence and conversion when they allowed automobiles to be exported without requiring presentation of the certificates

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of title. The district court granted the Government's motion for summary judgment on Appellees' conversion claim, but held that the Federal Tort Claims Act permitted Appellees to sue the Government for

breach of a duty seemingly imposed on it by Customs regulations.

Following a bench trial, the court held that Customs officials had

behaved negligently, and awarded Appellees damages exceeding

$400,000. We reverse in part and affirm in part.

I.

Appellees conduct automobile auctions in the State of Florida, selling used cars to wholesale dealers. Appellees review the credit histories of all dealers participating in a given auction, then determine the

method of payment that each will be permitted to use. While some

dealers are required to pay cash to Appellees immediately upon making a purchase, many others are allowed to submit"sight drafts." A

sight draft is a check-like method of payment commonly used by

automobile auctioneers nationwide. When a sight draft is used,

Appellees deliver a bill of sale and the purchased automobiles to the

purchaser, then forward a copy of the sight draft and the certificates

of title to the purchaser's bank. Once the bank receives the sight draft,

the purchaser is expected to authorize the bank to make payment on

its behalf. If such payment is indeed authorized, the purchaser's bank

delivers the certificates of title to the purchaser; if payment is refused,

the certificates are returned to Appellees.

In January 1990, Appellees sold numerous cars to Preowned Cars,

Inc., a company with which Appellees had been dealing for more than

three years. Preowned was permitted to submit sight drafts to Appellees promising payment of approximately $600,000. Soon thereafter,

Preowned shipped the cars to Charleston, South Carolina, in order to

export the vehicles to Saudi Arabia. Despite the provisions of 19

C.F.R. § 192.2(b)--a federal regulation which states that exporters

must present original or certified copies of certificates of title to Customs officials before automobiles may be transported out of the

United States1--Customs officials permitted the exportation after

_________________________________________________________________

1 An exception to this requirement is made if compliance with a state

statutory requirement makes the certificates of title unavailable. 19

C.F.R. § 192.2(b). The Government has not contended that such a statute

applies in the instant case.

 4
receiving only a copy of the bill of sale. At about that same time,

Appellees learned that Preowned had refused to authorize its bank to

make payment against the sight drafts.

After proving unable to secure payment from Preowned, Appellees

filed suit in federal district court, claiming entitlement to damages

under theories of conversion and negligence. The district court

granted the Government's motion for summary judgment on Appellees' conversion claim, finding that, under South Carolina law, conversion is the "unauthorized assumption and exercise of the right of

ownership over goods or personal chattels belonging to another, to the

alteration of their condition or the exclusion of the owner's rights,"

see Powell v. A.K. Brown Motor Co., 20 S.E.2d 636, 637 (S.C. 1942),

and that Customs officials never possessed the automobiles or exercised "any of the rights of ownership over the automobiles in question." Even if Customs officials had taken possession of the cars, the

district court reasoned, the Federal Tort Claims Act's waiver of sovereign immunity would have been deemed rescinded by 28 U.S.C.

§ 2680(c), which provides that the Act is inapplicable to claims "arising in respect of . . . the detention of any goods or merchandise by

any officer of customs."

With respect to Appellees' negligence claim, however, the district

court denied the Government's motion for summary judgment. Finding that Customs officials have a regulatory obligation to require presentation of certificates of title before allowing automobiles to be

exported and that Customs officials did not demand such certificates

in the instant case, the court held that the Government's failure to

require presentation of the certificates was actionable under a statelaw negligence theory of liability, and that jurisdiction under the Federal Tort Claims Act was therefore proper. The district court subsequently found the Government liable for negligence and awarded

Appellees damages exceeding $400,000.

The Government has appealed the district court's denial of its

motion for summary judgment on Appellees' negligence claim.

Appellees have cross-appealed the district court's grant of summary

judgment to the Government on their conversion claim.

 5
Grants and denials of motions for summary judgment are reviewed

de novo. Henson v. Liggett Group, Inc. , 61 F.3d 270, 274 (4th Cir.

1995).

II.

"The basic rule of federal sovereign immunity is that the United

States cannot be sued at all without the consent of Congress." Block

v. North Dakota, 461 U.S. 273, 287 (1983). Through the Federal Tort

Claims Act (FTCA), Congress has provided that the Federal Government may be sued in federal district courts

for injury or loss of 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) (1988); see also 28 U.S.C. § 2674 (1988) ("The

United States shall be liable, respecting the provisions of this title

relating to tort claims, in the same manner and to the same extent as

a private individual under like circumstances . . . ."). The Act does not

create new causes of action; "the mere allegation of a breach of duty

under Federal law does not, by itself, state a valid tort claim against

the Government." Goldstar (Panama) S.A. v. United States, 967 F.2d

965, 969 (4th Cir. 1992). Instead, the Act "only serves to convey

jurisdiction when the alleged breach of duty is tortious under state

law, or when the Government has breached a duty under federal law

that is analogous to a duty of care recognized by state law." Id.; see

also Rayonier, Inc. v. United States, 352 U.S. 315, 319 (1957) (stating

that, as in all other cases in which the Federal Government claims

immunity from suit in tort, when the performance of a uniquely governmental function gave rise to the claimed harm, the court must simply determine "whether a private person would be responsible for

similar negligence under the laws of the State where the acts

occurred").

Under Goldstar and like cases, there are therefore two instances in

which the FTCA would permit Appellees to sue the Government for

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negligence as a result of Customs officials' failure to enforce federal

regulations. First, the suit would be permitted if Appellees showed

that "the alleged breach of duty is tortious under state law." See

Goldstar, 967 F.2d at 969. Second, the suit would be permitted if

Appellees demonstrated that the Government had breached a duty

imposed by federal law that is similar or analogous to a duty imposed

by state law. See id.

A. TORTIOUS BREACH OF DUTY UNDER STATE LAW

1. Violation of a Duty Imposed by Federal Regulations

To make out a claim of negligence under South Carolina law, a

plaintiff "must show (1) a duty of care owed by the defendant to the

plaintiff; (2) a breach of that duty by a negligent act or omission; and

(3) damage proximately resulting from the breach." Andrews v. Piedmont Air Lines, 377 S.E.2d 127, 128 (S.C. Ct. App. 1989). Ordinarily,

under the State's "public-duty doctrine," public officials are "not liable to individuals for their negligence in discharging public duties as

the duty is owed to the public at large rather than[to] anyone individually." Jensen v. Anderson County Dep't of Social Services, 403

S.E.2d 615, 617 (S.C. 1991). In the case at bar, the district court nevertheless held that Appellees' negligence claim should go to the trier

of fact. The district judge reviewed Summers v. Harrison

Construction, 381 S.E.2d 493 (S.C. Ct. App. 1989), to determine

under what circumstances South Carolina courts find that a statute or

regulation establishes a special duty of care by which government

officials must abide in their dealings with the general public, and may

violate only upon pain of being found liable for negligence. The court

concluded that the various requirements had been met.2

_________________________________________________________________

2 In its brief to this court, the Government insisted that breach of any

duty imposed by 19 C.F.R. § 192.2(b) could not give rise to a state-law

claim of negligence. "[B]ecause federal regulations owe their force and

effect to federal and not state law," the Government contended, "they

cannot serve as the basis for liability under the FTCA." Appellant's Brief

at 9-10. The Government's argument (an argument from which it

attempted to distance itself during oral arguments) is wholly without

merit. In In re Sabin Oral Polio Vaccine Prods. Litig., 984 F.2d 124,

127-28 (4th Cir. 1993) (per curiam), for example, we affirmed the district

 7
In Summers, the South Carolina Court of Appeals stated that "statutes which create or define the duties of a public office have the

essential purpose of providing for the structure and operation of government or for securing the general welfare and safety of the public,"

and that "[s]uch statutes create no duty of care towards individual

members of the general public." 381 S.E.2d at 496. The court went

on to say, though, that a "special duty" to particular individuals may

be created by such a statute when

(1) an essential purpose of the statute is to protect against a

particular kind of harm; (2) the statute, either directly or

indirectly, imposes on a specific public officer a duty to

guard against or not cause that harm; (3) the class of persons

the statute intends to protect is identifiable before the fact;

(4) the plaintiff is a person within the protected class; (5) the

public officer knows or has reason to know of the likelihood

of harm to members of the class if he fails to do his duty;

and (6) the officer is given sufficient authority to act in the

circumstances or he undertakes to act in the exercise of his

office.

Id. In the instant case, the district court concluded that an essential

purpose of the regulation is to protect against a particular kind of

harm (unlawful exportation of vehicles), the regulation imposed on

_________________________________________________________________

court's finding that violation of federal oral polio vaccine regulations

could give rise to negligence per se liability under state law. See In re

Sabin, 774 F. Supp. 952, 956 (D. Md. 1991). Other circuits have similarly held. See, e.g., Cecile Indus., Inc. v. United States, 793 F.2d 97, 99

(3d Cir. 1986) (stating that "[t]he failure to follow a federal regulation

may be negligence per se if, under state law criteria, it may be considered the kind of . . . regulation violation of which is negligence per se")

(quotation omitted); Art Metal-U.S.A. v. United States, 753 F.2d 1151,

1158-59 (D.C. Cir. 1985) (stating that, "depending on the jurisdiction

and the law violated," a violation of a federal regulation may constitute

negligence per se under state law and thereby subject the Federal Government to liability under the FTCA); Gill v. United States, 429 F.2d

1072, 1075 (5th Cir. 1970) (stating that, "[w]hile principles of [state] law

control, federal regulations may impose duties and standards of conduct

upon the actors").

 8
specific Government officers a duty to guard against that harm

(exporters must present certificates of title to Customs officials), the

regulation is intended to protect an identifiable class of persons (lawful owners of vehicles that are in the possession of third parties), the

plaintiffs are within that protected class (Appellees held the certificates of title), public officials had reason to know of the harm that

could be caused if they failed to fulfill their duty (Customs officials

should have known of the losses Appellees could sustain if they did

not demand certificates of title), and the officers had been given sufficient authority to carry out the given duty (Customs officials had the

power to block exportation pending submission of the certificates).

The district court concluded that "[t]he violation by Defendant of its

own Regulation only serves to establish Defendant's actions in permitting the vehicles to be exported without certificates of title as negligence per se."

We believe that the district court erred. South Carolina courts consistently have been reluctant to find special duties statutorily imposed.

In Summers, the Court of Appeals held that a state statute requiring

officers who issue building permits to secure evidence that the builders and renovators of residences are licensed did not create a special,

actionable duty to protect homeowners. 381 S.E.2d at 495-96. The

court reasoned that the statute was intended simply to protect the general public "by insuring that only licensed builders perform residential

building," and that the duty to secure particular documentation did not

impose on government officials a duty to guard against poor workmanship. Id. at 496. Similar reluctance is evident in other cases as

well. See, e.g., Brady Development Co. v. Town of Hilton Head

Island, 439 S.E.2d 266, 268 (S.C. 1993) (holding that the town's

Development Standards Ordinance was intended to protect the public

from overdevelopment, not to protect homeowners from deprivation

of water and other services); Bellamy v. Brown , 408 S.E.2d 219, 220-

21 (S.C. 1991) (holding that statutorily prescribed exceptions to the

disclosure requirements of the state's Freedom of Information Act did

not establish a duty to maintain confidentiality); Jensen v. South Carolina Dep't of Social Services, 377 S.E.2d 102, 105-07 (S.C. Ct. App.

1988) (holding that the state's Child Protection Act, which required

state and local officials to carry out various training, monitoring,

reporting, and investigative responsibilities, did impose on local officials to whom instances of alleged child abuse had been reported a

 9
special duty to investigate and intervene, but did not impose on state

officials a special duty to protect particular children), aff'd, 403

S.E.2d 615 (S.C. 1991); Rayfield v. South Carolina Dep't of

Corrections, 374 S.E.2d 910, 916-17 (S.C. Ct. App. 1988) (holding

that a state statute requiring prison and parole officials to keep records

of prisoners' habits and deportment and to prepare adequate reports

concerning parole candidates did not create a special duty to protect

particular members of the public against crimes committed by

released prisoners), cert. denied, 379 S.E.2d 133 (S.C. 1989).

As in Summers, Jensen, and Rayfield, there is clearly a link in the

case at bar between the documentation requirements and the harm

eventually suffered: just as requiring a builder's license makes shoddy

construction of residences less likely, just as reporting and monitoring

requirements decrease the likelihood that children will be abused, and

just as documenting and reporting prisoners' habits and dispositions

decreases the likelihood that dangerous prisoners will be released,

requiring certificates of title decreases the likelihood that cars will be

removed from the United States without the consent of their owners.

Yet, as in Jensen, "[n]o language in the [regulation] charges the specific officers with a duty to prevent such crimes." See 374 S.E.2d at

917. Indeed, the evident purpose of the regulation is not to impose on

Customs officials a duty to protect Appellees and certain other identifiable parties from non-payment of debts,3 but is instead to deter

exportation of stolen autos by establishing procedures that must be

followed when exporting used cars and by imposing varying levels of

liability on importers and exporters that do not follow those procedures.4

We therefore conclude that the district court erred when it held that

the federal regulation imposed on Customs agents a special duty, vio-

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3 The language of the regulation is in fact framed to impose a duty on

exporters, not Customs officials: rather than stating that Customs agents

must secure certificates of title, the regulation requires exporters to present such certificates.

4 For example, 19 C.F.R. § 192.3 imposes a $500 penalty on exporters

who fail to comply with the requirements of § 192.2 and a $10,000 penalty on importers and exporters who knowingly attempt to import or

export stolen vehicles or vehicles whose identification numbers have

been removed or altered.

 10
lation of which could subject the Government to liability for negligence under South Carolina law.

2. Violation of a "Good Samaritan" Duty 

Appellees contend that, even if the federal regulation did not create

a special duty to protect them from the harm that they suffered, the

Government is nevertheless liable for negligence under South Carolina law. As the Government points out, South Carolina courts have

adopted the "Good Samaritan" provision of the Second Restatement

of Torts, which states:

One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as necessary for the protection of the other's person or things, is

subject to liability to the other for physical harm resulting

from his failure to exercise reasonable care to perform his

undertaking if . . . the harm is suffered because of the

other's reliance upon the undertaking.

Restatement (Second) of Torts § 323 (1993); see Sherer v. James, 351

S.E.2d 148, 150 n.3 (S.C. 1986). Appellees contend that the Government undertook to render services to them by enacting a regulation

requiring presentation of certificates of title; that Customs agents

failed to enforce that regulation with reasonable care; and that Appellees were harmed due to their reliance upon Customs agents to use

such care.

We find Appellees' argument unpersuasive. First, the Customs regulations do not represent an effort specifically to"render services" to

Appellees; instead, the regulations and authorizing legislation5 were

intended to deter the removal of stolen autos from the United States.

See S. Rep. No. 98-308, 98th Cong., 2d Sess. 3-4, reprinted in 1984

U.S.C.C.A.N. 4910, 4912-13 (stating that the legislation was intended

"to prevent the exportation of certain stolen vehicles" by imposing

civil penalties on exporters and importers that violate the applicable

statutes and regulations). Second, while there is evidence in the record

_________________________________________________________________

5 19 C.F.R. § 192.2(b) was enacted pursuant to 19 U.S.C. §§ 1624,

1627a (1988 & Supp. 1995).

 11
suggesting that Appellees' employees believed that the cars could not

be exported so long as they held the certificates of title, there is no

evidence that demonstrates that they genuinely relied upon Customs

officials to enforce the regulation: nothing in the record makes clear

that Appellees would not have agreed to follow the industry practice

of using sight drafts--particularly with Preowned, a company that had

been a customer for more than three years--had the Customs regulations not required presentation of certificates of title. We reject

Appellees' argument accordingly.

B. BREACH OF A FEDERAL DUTY THAT IS ANALOGOUS

TO A DUTY RECOGNIZED BY STATE LAW

Regardless of whether South Carolina law would impose tort liability for violation of 19 C.F.R. § 192.2(b), Goldstar describes a second

means by which the FTCA might permit Appellees' negligence

action: the action would be permitted if "the Government has

breached a duty under federal law that is analogous to a duty of care

recognized by state law." Goldstar, 967 F.2d at 969; see also

Rayonier, 352 U.S. at 319 (stating that a court must determine

"whether a private person would be responsible for similar negligence

under the laws of the State where the acts occurred") (emphasis

added).

The Government contended that "there is no authority holding a

private party liable under South Carolina law for anything remotely

resembling the alleged conduct at issue: permitting exportation on the

basis of improper documents." Appellant's Brief at 12. Conceding

that perhaps such a close analogy need not be found, the Government

further argued that "there is no duty under South Carolina [law] to

protect persons from the criminal actions of third parties, such as

absconding with stolen goods." Appellant's Brief at 12.

Neither the district court nor Appellees attempted to identify appropriate analogies. Having reviewed the matter, we conclude that South

Carolina law would not impose liability for breach of a duty that is

sufficiently analogous to the duty purportedly imposed on Customs

officials by 19 C.F.R. § 192.2(b) to render the Government liable to

Appellees for the Customs agents' actions.

 12
We therefore hold that the district court erred when it denied the

Government's motion for summary judgment on the issue of negligence, and vacate the judgment entered against the Government

accordingly.

III.

Appellees believe that the district court erred when it granted the

Government's motion for summary judgment on Appellees' conversion claim. Rather than argue on appeal that the Government committed the tort of conversion, however, Appellees contend that Preowned

is the party that committed the acts constituting conversion, but that

the Government should be held liable in tort for aiding and abetting

that conversion.6

In support of their contention that a party may be held liable for

aiding and abetting a conversion, Appellees cite cases from the Second Circuit, Maine, Nebraska, and Washington. See Aeroglide Corp.

v. Zeh, 301 F.2d 420, 422 (2d Cir.) (applying New York law), cert.

denied, 371 U.S. 822 (1962); Lewiston Trust Co. v. Deveno, 74 A.2d

457, 458-59 (Me. 1950); State Securities Co. v. Svoboda, 110 N.W.2d

109, 112 (Neb. 1961); Davin v. Dowling, 262 P. 123, 124 (Wash.

1927). One commentary states, however, that "there are some cases

in which persons who aid and abet others in committing a conversion

are not regarded as liable therefor." See 18 Am. Jur. 2d Conversion

§ 70 (1985). Appellees do not cite, and we are unable to locate, any

reported decision of a South Carolina court that suggests that South

Carolina recognizes the tort of aiding and abetting a conversion.

The FTCA requires Appellees to show that "the United States, if

a private person, would be liable to [Appellees] in accordance with

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6 The Government contends that Appellees did not advance an aidingand-abetting argument in their complaint, and that Appellees raise that

argument for the first time in the instant appeal. Appellant's Reply Brief

at 7. The Government is incorrect. In paragraph sixteen of the First

Cause of Action described in their September 11, 1992, complaint,

Appellees stated: "As a direct and proximate result of the conversion

which Defendant aided and abetted and in which Defendant participated,

Plaintiff . . . has been damaged . . . ."

 13
the law of the place where the act or omission occurred." See 28

U.S.C. § 1346(b); see also Block v. Neal , 460 U.S. 289, 294 & n.3

(1983) (noting that the court of appeals had failed to find that state

law (a) recognized the doctrine under which the district court had

found the Government liable for negligence and (b) would apply that

doctrine "to a private person responsible for similar negligence," and

suggesting that the Government could have invoked that failure as

grounds for appeal). We are unable to say, with the requisite degree

of certainty, that South Carolina law permits an action for aiding and

abetting a conversion, or that, if such an action were permitted, the

Government would be found liable for its agents' conduct under

whatever principles the South Carolina courts would recognize as

controlling in such actions. We therefore refuse to disturb the district

court's ruling on Appellees' conversion claim.

IV.

For the foregoing reasons, we hold that the district court erred

when it denied the United States's motion for summary judgment on

the issue of negligence, but did not err when it granted the Government's motion for summary judgment on Appellees' conversion

claim. The decision of the district court is accordingly

REVERSED IN PART AND AFFIRMED IN PART.

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